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The Army Lawyer (Sep A- THE ARMY Headquarters, Department of the Army Department of the Army Pamphlet 27-50-177 September 1987 -\ Table of Contents TJAG Policy Memo 87-%Liaison with Civilian Officials After Solorio ................................. 3 Articles Federal Criminal Prosecutions on Military Installations, Part 11: Practice Pointers for the Military Attorney ........................................................ 5 Captain David J. Fletcher Which Comes First, the Army or the Job? Federal Statutory Employment and Reemployment Protections for the Guard and the Reserve.. ....................................... 14 Lieutenant Colonel John P. Halvorsen Permissible Law Enforcement Discretion in Administrative Searches .................................. 26 Major Wayne E. Anderson The Virginia Military Advisory Commission-A Unique Forum for Improved Relations Between the Commonwealth of Virginia and the Armed Forces ........................... 29 Colonel M. Scott Masers & Lieutenant Colonel Philip F. Koren USALSA Report ........................................................................... United States Army Legal Services Agency The Advocate for Military Defense Counsel.. ............................................. How Far Is the Military Courtroom Door Closing for Defense Expert Psychiatric Witnesses? ........... ........................................................ 31 Captain Richard Anderson DAD Notes .................................................................................. 36 Absolute Bar Against Polygraph Evidence Lifted: Frye Test Superseded; Hope Is Not States v. Newak: Conflict of Interest Clerk of Court Notes.. ........................................ .... C.. .. 39 Court-Martial and Nonjudicial Punishment Rates Per Thousand; S Some Overlooked Fundamentals of Record-Making; Fiscal Year 1986 Sta Representation: A Problem Substantially Solved eview Note ..................................... .................... 40 ............................................... ........z. ............ 40 Captain Annamary Sullivan Government Appellate Division Note ..................................................... -. ......45 N . >,. .A- thing .......................... ....................................... 45 ’ Captain Eva Novak Trial Defense Service Note.. ..................................................................... 49 The Client as Advocate in Nonjudicial and Administrative Proceedings ............................. 49 Captain Ronald W. Scott /’- Regulatory Law Office Note ..................................................................... 57 Gas Utility Service TJAGSA Practice Notes ................................... ...... Instructors, The Judge Advocate General’s School Administrative and Civil Law Note ............................................................... 59 Digest of Opinion of The Judge Advocate General Criminal Law Notes ............... ........................ ............ 60 Edwards and McOmber Held Not to pply to Consent to Search; Abandonment-A New Defense? Legal Assistance Items ........................................................................... 63 Servicemen’s Group Life Insurance; Tax Notes (IRS Issues Proposed Regulations on IRA and Qualified Plan Distributions, Electronic Filing of Tax Returns); Consumer Law Notes (Chagall or Charlatan?, Binding Arbitration Agreements Upheld, Weight Loss While You Sleep? Dream On!, Inventors Win One, Civil Service Exam Preparation Ads Found Deceptive, Pyramid Schemes Offer Variety, But Little Investment Return); Family Law Notes (Retired Pay, Marital Misconduct, Florida Legislative Update) .............................................................. The Army Claims System Gets a Facelift.. ........................................................ 67 Colonel Jack F. Lane, Jr. Rental Car Insurance ....................................................................... 68 James D. Wilson Tort Claims Note.. ............................................................................. 71 Personnel Claims Recovery Note ................................. ............................. 72 Errata. ... .. ....................................................................... 72 P Automation Notes ............................................. ................................ 72 Information Management Ofice, OTJAG Bulletin Board Blues; Don’t Touch That Dial!; And Away We Go! Bicentennial of the Constitution ..................................................... Bicentennial Update: Events of October 1787 Guard and Reserve Affairs Items ..................... ..... CLENews ................................................. Current Material of Interest ....................................................................... 78 ~~ ~ The Army Lawyer (ISSN 0364-1287) Editor Captain David R. Getz ,, System of Citation (14th ed. 1986) and the Uniform System ofMilifary Ci- The Army Lawyer is published monthly by The Judge Advocate Gener- tation (TJAGSA, Oct. 1984). Manuscripts will be returned only upon spe- al’s School for the official use of Army lawyers in the performance of their cific request. No compensation can be paid for articles. legal responsibilities. The opinions expressed by the authors in the articles, The Army Lawyer articles are indexed in the Index fo Legal Periodicals, however, do not necessarily reflect the view of The Judge Advocate Gener- the Current Law Index, the Legal Resources Index, and the Index to US. al or the Department of the Army. Masculine or feminine pronouns ap- Government Periodicals. - pearing in this pamphlet refer to both genders unless the context indicates Individual paid subscriptions are available through the Superintendent another use. of Documents, U.S.Government Printing Office, Washington, D.C. 20402. The Army Lawyer welcomes articles on topics of interest to military law- Issues may be cited as The Amy Lawyer, [date], at [page number]. yers. Articles should be typed doubled spaced and submitted to: Editor, Second-class postage paid at Charlottesville, VA and additional mailing The Army Lawyer, The Judge Advocate General’s School, U.S. Army, offices. POSTMASTER: Send address changes to The Judge Advocate Charlottesville, Virginia 22903-1781. Footnotes, if included, should be General’s School, U.S.Army, Attn: JAGS-DDL, Charlottesville, VA typed double-spaced on a separate sheet. Articles should follow A Ungorm 22903-178 1. C”N5”wr.. DEPARTMENT OF THE ARMY - THE JUDGE ADVOCATE OFFICE OF GENERAL WASHINGTON DC 20910-2200 A - 49 %<*, o‘ Nk REPLY TO ATTENTION OF DAJA-CL 1987/6313 (27-la) 2 8 JUL 1987 MEMORANDUM FOR: STAFF AND E‘ SUBJECT: Liaison with Civilian Officials After Solorio Policy Memo 87-5 1. The Supreme Court of the United States overruled O’Callahan v. Parker, 395 U.S. 258 (1969) in Solorio v. United States, - U.S. - (June 25,1987). The Court held- that the exercise of court-martial jurisdiction over an offense depends solely on the accused’s status as a member of the Armed Forces, and not on the “service connection” of the offense charged. The Solorio decision dramatically enhances the disciplinary authority of commanders and will have an impact on investigative, law enforcement, and legal resources. Military jurisdiction over off-post offenses will, by necessity, require greater communication and coordination with civilian law enforcement agencies and prosecutors. 2. Staff and command judge advocates should review any Memorandum of Understanding (MOU) in effect with local, state, and federal prosecutors and law enforcement officials in light of Solorio. Regardless of the status of these MOUs or other informal arrangements, Solorio should be discussed with these officials as soon as possible and plans made for coordination on future cases. In addition, you should ensure that local Criminal Investigation Division (CID) and Military Police (MP) officials coordinate with their civilian counterparts on how to handle cases in view of Solorio. 3. In your discussions with these civilian officials you need to keep in mind the following policies: a. The ultimate goal is a well disciplined fighting force. As stated in para. 4-2, AR 27-10, A person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not be tried by court-martial or punished under Article 15, UCMJ, for the same act over which the civilian court has exercised jurisdiction. h SEPTEMBER 1987 THE ARMY LAWYER DA PAM 27-50-177 3 DAJA-CL 1987/6313 (27-la) SUBJECT: Liaison with Civilian Officials After Solorio - Po Memo 87-5 b. Prior cases in which the civilian authorities declined to exercise their jurisdiction and which were never subjected to military jurisdiction due to O'Callahan, may be disposed of under the UCMJ (with discretion) if within the sta c. Prior courts-martial in which the govern matter jurisdiction over the offense due to 0' an and did not appeal, will not be revived as a matter of policy. d. Cases currently underway at the trial level are controlled by Solorio; therefore, Alef factors in those specifications are mere surplusage. e. Cases currently on direct or government appeal will be affected by Solorio. Government Appellate Division will toSolorio proceed. where appropriate and allow the nor pr 4. Finally, commanders and law enforcement officials need to understand that we must use the expanded jurisdiction under Solorio wisely. Abuses will invite corrective action by Congress as suggested in both the majority and dis Solorio. We must ensure that the exercise 0 prudent and consistent with good order and di /-
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