BULLETIN No. 2 JUNE, 1949 The Judge Advocate

Published Quarterly By JUDGE ADVOCATES ASSOCIATION

312 DENRIKE BUILDING WASHINGTON 5, D. C. THE JUDGE ADVOCATE JOURNAL OFFICERS FOR 1948-49 WILLIAM f. HUGHES, JR ., Washington, D. C. .... President GEORGE HAFER, Harrisburg, Pa. . 1st Vice President ALEXANDER PIRNIE, Utica, N. Y...... 2nd Vice President SAMUEL F. BEACH, Washington, D. C. . ... Secretary EDWARD B. BEALE , Washington, D. C. .. Treasurer RALP H G. BoYD, Boston, Mass. Delegate to A.B.A. DIRECTORS Earnest M. Brannon, Wash., D. C. Joseph F. O'Connell, Jr., Boston, Mass. John W. Ahern, Wash .. D. C. Robert R. Dickey, Jr., Wash., D. C. Milton J. Blake, Denver, Colo. John Ritchie, III, Charlottesville, Va. Roy L. Deal, Winston-Salem, N. C. Edward F. Gallagher, Wash., D .C. Oliver P. Bennett, Mapleton, Iowa John P. Oliver, Van Nuys, Calif., and Wash., D. C. Executive Secretary and Editor RICHARD H. LOVE Washington, D. C.

BULLETIN No. 2 JUNE, 1949 Publication Notice The views expressed in articles printed herein are not to be regarded as those of the Judge Advocates Association or its officers and directors or of the editor unless expressly so stated. TABLE OF CONTENTS Page Results of Uniform Code Questionnaire...... 1 Notes from the Office of the JAG - ...... 26 Points Toward Retirement ...... --- ...... 27 Awards of Merit ...... 28 Training, Points and Retirement-Correspondence ...... 29 Nominating Committee ...... 32 Civilian Military Government Courts in Germay ...... 33 The JAG's Statement to the Senate Armed Services Committee ...... _ ...... 38 What the Members Are Doing _...... 48 Annual Meeting at St. Louis ...... 52 Published by fudge Advocates Association 312 Denrike Building, Washington 5, D. C. - STerling 4848 Results of Questionnaire Concerning "Uniform Code 0[ llilitary Justice" On March 4, 1949, the Associa­ from the House. tion distributed to its members a For the information and interest copy of S. 857 and HR. 2498, iden­ of all members, there follows the tical bills to establish a "Uniform tabulated results of the question­ Code of Military Justice," together naire and a collection of typical with a questionnaire soliciting the comments from the membership. views of the membership on par­ 2190 questionnaires were distrib­ ticular questions raised by the uted of which 645 were returned proposed law as well as general in time for tabulation. Since that comments upon the whole subject time perhaps a dozen more ques­ matter. tionnaires have been received but After extensive hearings con­ a survey of the answers there con­ ducted by the Sub-Committee on tained follow a pattern established Military Justice of the House by the following tabulation. Armed Forces Committee, the pro­ posed law, s u b st anti a 11 y un­ Questionna~re changed, was reported to the 1. Are you basically in favor of House as HR. 4080 which bill was a Uniform Code for the three approved by voice vote by the services? United States House of Repre­ YES 586 NO 51 sentatives on 5 May, 1949. 2. If so, would you adopt it now, Thereafter the Sub-Committee or so far as the Army and Air on Military Justice of the Senate Force are concerned, would Armed Forces Committee con­ you give the new court martial ducted hearings at which the As­ system established by the El­ sociation presented the tabulated ston Act, Public Law 759, results of the questionnaire. Typ­ 1948, effective February 1, ical comments from members, pro 1949, and under which they are and con, on various features of the now operating, a reasonable proposed Uniform Code were also tryout? EXPLAIN. submitted for the consideration of Adopt Uniform Code the Sub-Committee. The Sub-Com­ Now 298 mittee has concluded its hearings Try Elston Act first 221 and at the time of this writing is 3. Do you believe, if a Uniform considering its findings and will Military Code is adopted, it shortly report the Bill to the full should substantially d e p a r t Senate. It is very likely that the from the principles of the El­ Committee will report the bill on ston Act above referred to? the floor in a very similar condi­ YES 98 NO 434 tion to that which it received it 4. Proposed AW 2(3) gives 2 The JUDGE ADVOCATE JOURNAL courts martial jurisdiction over personnel but not one forced reserve personnel on inactive by outsiders such as police au­ duty training. Are you in thorities. Do you think this favor of this? adequately protects the priv­ YES 211 NO 416 ilege against self-incrimina­ 5. Proposed AW 16, 26, 39 and 51 tion? give the "law officer" 'the YES 74 NO 547 right to rule on interlocutory 10. Proposed AW 27 and 38 abol­ matters but deprive him· of ish Trial Judge Advocates and any vote on the findings and substitute Trial Counsel. A re sentence, and exclude him from you in favor of this? the- deliberations of the Court. YES 322 NO 232 Are you in favor of this? 11. Proposed AW 58 permits con­ YES 85 NO 512 finement in the penitentiary 6. Proposed AW 51 c requires the for any offense no matter what instructions of the law officer the length of the sentence, by as to the elements of the of­what court adjudged, and fense and the rule as to rea­whether or not it includes dis­ sonable doubt to be made part honorable discharge. A re you of the 1 record for Appellate in favor of this? Review. · Will this be of prac­YES 93 NO 540 tical value? 12. Proposed AW 66 provides for YES 343 NO 179 a Board of Review, who may , 7. Proposed AW 17 permits a be civilians, with final power, court of one armed force to try in ordinary cases, to hold rec­ a member of another, but pro­ords good or bad on any vides that Appellate Review ground. In either event the shall reside in the Armed Force the Judge Advocate General of which the accused is a mem­has no power to do anything ber. Are you in favor of this? except refer the case to the YES 330 NO 298 Judicial Council, com.posed of 8. Proposed AW 27b requires three civilians. A re you in trial counsel a,nd defense coun­favor of this? sel to be .lawyers. As the law YES 158 NO 468 officer must also be a lawyer 13. Proposed AW 66 gives the BIR (AW 26) and there are in final power to reduce sen­ peacetime around 100 Army tences, with no review at all G.C.M. jurisdictions, this will in the Judge Advocate Gen­ require at least 300 additional eral, the Judicial Council (see lawyers. Is this practicable? AW 67d), the Secretary or any YES 445 NO 171 one. Are you in favor of this? 9. Proposed AW 31 excludes a YES 118 NO 500 conjession forced by military 14. Proposed AW 67 makes it The JUDGE ADVOCATE JOURNAL 3 mandatory that the Judicial Comments from Members .of Council (The Supreme Court Judge Advocates Association of the new system) be com­on Questionnaire posed of civilians only, ap­No Civilian Control pointed without the advice and "I believe the tendency of post­ consent of the Senate and hold­ war reform efforts has been to go ing office for no definite term, too far in taking ultimate control but solely at the will of the President. Are you in favor in military justice from the mili­ of this set-up? tary and placing it in civilian hands. Discipline is still absolutely YES 67 NO 563 essential to military effectiveness '15. The propoMd Code (AW 74) and I believe the military authori­ deprives the Judge Advocate t.ies should remain in control of General of all clemency powers military j u st i c e administration now exercfaed by him under with a minimum of restriction nec­ the present AW 51. Are you essary to prevent injustice." in favor of this? COL., Spola_ine, Wash. YES 52 'NO 570 * * * 16. The proposed Code, in provid­"The Judge Advocate General ing a disciplinary system with­should be given more authority and out a responsible head, in de­responsibility instead of less. priving the Judge Advocate There is no place for civilians in General of all power to differ military fu~tice procedure. If we with BlR as to legality of rec­get our military justice and civil ords ~f trial (limiting him to justice mixed up we have no mili­ the right to send the case to tary discipline. Military justice is the all-civilian Judicial Coun­a means instead of an end, any­ cil) and in making the BIR way. It's too bad we have to have supreme as to sentences, ap­it at all and if we ever have last­ pears to take ultimate discip­ing world peace we can abolish it linary control away from the all. But until we reach that state military authorities and put it of security, let's keep our military into the hands of civilian.~. establishments military and not let Are you in favor of this? them get mixed up with lofty con­ YES 93 NO 504 cepts of democracy. Let's just ad­ 17. Viewing the proposed Code as mit that the military can't do as a whole, do you think it sets up good a job of justice as the civil a workable system? authorities, but the military can - YES 270 NO 291 . . do a better job of fighting and 18. Have you had military justice since military justice is a neces­ experience while in the Serv­sary part of the fighting machine ice? we have to keep it. I recommend YES 598 NO 37 more cooperation, more simplicity, 4 The JUDGE ADVOCATE JOURNAL less competition between the serv­ principles. If we want civilians to ices and that the national welfare run the judicial side of the serv­ be substituted for individual am­ ices, then we should use our reg­ bition." ular civilian procedures. Obviously LT. COL., Oklahoma City, Okla. this is too slow and cumbersome. * * * In my opm10n, the proposed "We have gone about far enough changes would completely destroy in protecting the basic rights of an our present system of military jus­ accused. We must retain some au­ tice and would seriously imperil thority in the military, who knows the discipline of the various com­ its problems best, or we will lose mands. Such changes should be all control over the personnel. We most strenuously opposed." will end up being busier protecting CAPT., Los Angeles, Calif. individual rights than fighting the * * * enemy." "The power to command must re­ LT. COL., Kansas City, Mo. main with the military forces if we expect to have an efficient and * * * "Any attempt to put the CM well disciplined military. The system on a par with the civilian's power to command depends upon concept of justice is goin·g to react discipline, discipline depends upon very unfavorably on the efficiency the power to punish. If we take of the services and arms involved. the power to punish away from the I believe that the services are no military we will destroy discipline, more than the name implies-arms and eventually the power to com­ and services; they are the good mand. The proposed code, except right arm of the executive, and for m!nor offenses, takes away their mission must not be hindered from the military the power to in its performance by a mistaken punish, and vests it in a civilian emphasis upon individual justice. board of review, which will have The individual is entitled to jus­ dictatorial power over valid and tice, certainly, and the Elston Act legal sentences of courts martial." gives it to him. This new code, LT. CoL., Charleston, W. Va. however, makes the administration * * * of military justice so cumbersome "The sob sisters seem to be plac­ that it places justice ahead of the ing us in a position where military mission of the service involved. law and rules will be as ineffective The enemy, we may be certain, will as our civilian rules against trai­ not be so encumbered, if and when tors." we engage him." 2ND. LT., Pontiac, Mich. lST. LT., Jennings, Mo. * * * * * * "My only concern is for an "Generally speaking, the pro­ armed force with appropriate dis­ posed code is contrary to military cipline. I will not vote to turn over The JUDGE ADVOCATE JOURNAL 5 our armed force discipline to a be for the mutual benefit of all group of unmilitary, undisciplined concerned. However, the proposed cry babies for this will create the bill is not what is needed. It at­ mob. the U.S.S.R. wants us to tempts ·to make military justice have for an armed force." civil justice, and such is absolutely MAJOR, Port Clinton, Ohio. not feasible. Civil law and mili­ * * * tary law have a different aim in "There is an unnecessary em­ view. A soldier is not a civilian phasis on civilian-·· influence-to and a civilian is not a soldier, and such an extent that ·it is a mis­ never the twain shall meet." nomer to call it a code of military CAPT., Atlanta, Ga. justice. With -aiCthe additional * * * safeguards that have been pro­ "Civilians - particularly those vided by the Elston Act, I see no legislators without military experi­ need for the tremendous civilian ence-should some day realize that authority interjected into the pro-· when they try to deprive the mili­ posed system." tary of those disciplinary powers COL., Toms River, N. J. which rightly and peculiarly be­ * * * long to the military, the system "This is a code obviously drawn evolved will not be successful." by some fuddy-duddy who never lsT. LT., Phillipsburg, N. J. saw a day in the field with troops * * * and certainly no combat, and re­ "The code gives every evidence sembles Federal District and Ap­ of preparation by a person or per­ pelate Court procedure-too .tech­ sons who are attached to the "ad­ nical to work. Of what possible versary" system and have little disciplinary value could a sentence appreciation of its deficiencies. It have with the four reviews (caus­ would destroy some of the most ing a year's delay) to intervene? outstanding merits of military jus­ Especial1y in a mutinous situation tice· as compared with criminal jus­ in a far off field? What experi­ tice in general. It represents a ence in war would qualify civilians retrograde movement from the ad­ to judge military officers as !I. su­ vanced position reached under the preme judjcial counsel? Who con­ Articles of War. I believe it would trols promotions, efficiency reports, prove unworkable and harmful to etc. of Judge Advocates and Board the State and the Army in time of of Review Members?" war. It not only is not an improve­ CoL., Dallas, Tex. ment-it would be highly danger­ ous to the public interest if en­ "I feel, after examining the pro­ acted." posed bills in the Senate and the BRIG. GEN., Washington, D. C. House, that a Uniform Code of * * * Military Justice for the three serv­ "I see no reason for further in­ ices is greatly needed and would terference by Congress in the mat­ 6 The JUDGE ADVOCATE JOURNAL I ter of military justice. I have al­ "I cannot take time to examine ways believed and do now, that the matter fully. However, no most of the so-called "safeguards" code should lose sight of the fact which are set up in the Articles of that discipline is and must be the War are really so only to the poor primary object. Civilian consider­ soldier, the man who either makes ations of presumed innocence must no effort to do right or who deiib­ sometime give way to the exig~n­ erately does wrong. Thus they cies of war just as civilian con­ dispriminate against the good sol­ siderations of personal comfort dier who tries to perform his whole and independence must also give duty. The idea of turning any part way. The system must not be of military justice over to civilians weak and it must not be cumber­ is repugnant to all principles of some. Justice above all must. be discipline. If those men are com­ prompt. Provisions to insure fair­ petent to take charge of the most ness must not be the counsel of important feature of an army, its . perfection, but they can be ade­ discipline, then they should be quate without interfering with made generals." the main object which is to win a lsT. LT., Clay, W. Va. war. A peace-time army, to be of * * * value must be mentally adjusted "The system embodied in the to war-time necessities. It has to proposed code would prove to be be the cadre and pass its philos­ cumbersome in practice. If it ophy to the new recruit. It can't should be enacted into law and a do that on a basis of diverse dis­ national emergency should occur, ciplinary responsibility in time of it is possible that the whole system war if a "soft" counsel. Appoint­ of military justice would break ment should be from candidates down. Many people fail to realize proposed by Army, A.F. and that military justice · is a field Navy." within itself and that the rules MAJOR, Kankakee, Ill. applicable to civilian practice are * * * not always precedents. The fact "I am violently opposed to in­ is that the former Articles of War se1ting civilian personnel into our on the whole constituted a fair system. The military syste.m has system. It was the human element more protections for an accused rather than the system which gave than does any other system of jus­ rise to the abuses in the last war. tice of which I know. If the mili­ The real remedy is to be found in tary cannot conduct its own system the proper orientation of officers, of justice, based on laws passed particularly g en er a 1 officers, by the Congress, I don't see how rather than attempting to increase it can be given the job of protect­ participation by civilian elements ing this nation from aggression. in the administration of military Let's give the new system a trial­ justice." COL., Jacksonville, Fla. ! believe it will work more effi­ The JUDGE ADVOCATE JOURNAL 7 ciently, and with more justice to that in effect imply that the Army, an accused, than do any of our Navy and Air Force personnel are civilian tribunals." ultimately incompetent to adminis­ LT. Cor,., San Francisco, Calif. ter justice of their own. * * * "I say, give the Judge Advo­ "The main defect is the lack of cate's Corps (and the correspond­ service control, by reason of t,he ing sections of the other services) civilian (and political) Judicial sufficient personnel, qualified to Council. This council should be properly administer justice at the service personnel, or if civilians trial level, leave them with a sys­ are desirable, then composed of a tem as good as that provided by board of five, two civilians and the Elston Act, and far better re­ three appointed from the respec­ sults will be obtained than by the tive services." proposed novel system." COL., San Francisco, Calif. · LT. COL., Oklahoma City, Okla. * * * * * * "In my opinion a civilian board "I cannot understand nor accept, should not have final review. Un­ the idea of appointing civilians to less they have military background the all important position of being they cannot know problems of mili­ a "Supreme Court" for the Armed tary essential to proper review. Forces, unless it is desired to cre­ As a division J.A. for 5 years, I ate some patronage." My reac­ feel that concepts of civilian pro­ tion to such an idea is: it is a cedure must give way to military reflection on the personnel of the expediency, at a final point." various services, particularly the LT. COL., Walla Walla, Wash. Judge Advocate General's Depart­ * * * ment of the various branches of "Civilians with no military serv­ the service. It almost amounts to ice do not know problems of armed an expression of lack of confidence service--even limited experience is in such personnel, and seriously insufficient." ·questions the caliber and integrity lST. LT., Memphis, Tenn. of such personnel. Under no cir­ * * * cumstances would I endorse or "I particularly object to placing support such a proposal. If there ultimate supervision and control must be a "supreme court," then in civilian hands. There is no dis­ the members of same should be cipline better than self discipline. drawn in equal numbers from the The military (or Naval) problem Army, Navy and Air Force." is sufficiently unique to warrant MAJOR, San Francisco, Calif. letting each discipline itself. There * * * seems to me to be no excuse for "I particularly object to reviews conceding that these services must by civilian boards. I believe that abandon time-honored .practices officers with general court martial and customs in favor of novel ones jurisdiction approved dishonorable 8 The JUDGE ADVOCATE JOURNAL discharges only when clearly jus­ comparatively speaking. Permit­ tified. I do not favor having civil­ ting the Boards of Review to be ians review the type of discharge composed of civilians is another given in time of war. The War matter. These should be officers Department through the Judge of the services for the reasons al­ Advocate's Office offers the best ready set forth in Paragraph 9 protection for the civil rights of hereof. These reasons appear to our young men. It is non political. be a far better argument against It has no interest except to admin­ appointing civilians than the "los­ ister justice." ing of ultimate disciplinary con­ LT. COL., Cedar Rapids, Iowa. trol," and more likely to be listened * * * to and understood." "My principal objection is to CoL., Philadelphia, Pa. civilian board of review, and ma­ * * * chinery and provisions regarding Civilian Review Desirable their tenure and power. If the "I see considerable merit in some whole proceeding is to be subject civilian participation." to a civilian board I think the CAPT., Blanchester, Ohio make-up of the Board should in­ * * * clude someone who has served in "Civilian review at the top armed forces and someone who has seems desirable. Persons with long legal training.. Otherwise it would military experience tend to think be like making a Supreme Court in terms of "discipline." Punish­ decision reviewable by a coroner's ment for disciplinary reasons is jury." not always just. The JAG has * * * enough administrative duties." "Question 16 puts its finger on Los Angeles, Calif. the crux of the entire problem * * * since the agitation for a new code "I served both as Assistant SJA is primarily an attempt toward and SJA during World War II, the "taking away of ultimate dis­ also TJA and Law Member. While ciplinary control" from military I happened to serve under a C. 0. authorities. It seems to me that who used common sense, I know such expressions should be avoided that others were not so fortunate. in discussing these problems with I, therefore, believe that justice Congressional representatives. would be better served by leaving Courts Martial are only one means the ultimate power in the hands or exercising disciplinary contro1. of a civilian body whose justice I even doubt if it can properly be would not be colored by military said that because the Judicial precepts." Council was composed of civilians, MAJOR, Salinas, Calif. that ultimate disciplinary control * * * would be completely lost to the "I would make the system more services except in very few cases, judicial (i.e., run by lawyers as The JUDGE ADVOCATE JOURNAL 9 courts) and less military (i.e., less the armed forces." by direction of line officers as an COL., Baton Rouge, La. instrument of policy or whim). * * * Our military services are now com­ "Ultimate recourse should be posed of a broad cross-section of civilian, because the ultimate gov­ our population and will be at least ernment and ultimate law of the for some years. Some of these per­ land are civilian. Soldiers, as such, sons will not be serving volun­ do not lose their citizenship. Citi­ tarily, that is, they will be se­ zenship is a civilian capacity and lectees. For these reasons we need would not be impaired with ul­ a broadened Code of Military Jus­ timate civilian supervision." tice with all the safeguards and lsT. LT., Delaware, Ohio protections that a citizen receives * * ·* in civilian life in his courts of law. "I do not share the fear implied Our courts martial must not be in Q. 16 that the disciplinary con­ subject to criticism for harshness, trol is being taken away from the lack of deliberation, lack of qualifi­ military. The B/R is appointed cation of counsel and law member, by the JAG from officers or civil­ inadequate appeal, etc." ians; I imagine it will usually be MAJOR, Salt Lake City, Utah a board of officers. If it isn't it * * * is the JAG's fault. The Judicial "The Uniform Code appears to Council's review is limited to mat­ me to have some features that are ters of law (Art. 67d), and on law of particular value. There is no matters I am in favor of having a doubt in my mind that isolationists, review by civilians." pacifists, opponents of prepared­ CAPT., Centralia, Ill. ness, propagandists against our * * * form of government, and even "I spent approximately 2 years in many sincere individuals, who are Military Justice work in Europe. interested only in the welfare of I became convinced that choice be­ the nation, have unjustifiably used tween military and civilian influ­ the administration of military jus­ ence in military justice is a choice tice to bolster their contentions. between two alternatives, neither If the ultimate power in courts of which is entirely satisfactory. martial cases is vested in a Judi­ It was my own experience that the cial Council composed of civilians military influence should be ex­ with proper qualifications, I feel cluded. I think the gravity of the that these protestants or oppo­ offense, its special seriousness in a nents will be deprived of their ·particular case, its significance to main argument. They will not be the military commander should be able to criticize the Army or any shown a/ter guilt is established other armed force for the conclu­ and before sentence is pronounced. sions reached. by judges in no way For the rest, I would rely on civil­ under the control or influence of ians." CAPT., Cleveland, Ohio 10 The JUDGE ADVOCATE JOURNAL * * * should be retained under the con­ "I go further than any of the trol and jurisdiction of the Judge present proposals. Military justice Advocate General. The adminis­ should be handled as a quasi­ tration of military justice involves civilian function with the same more than the punishment of an guarantees. There is no reason accused in the light of civil ad­ why the civilian soldier in the ministration procedures. Inasmuch Army against his will should be as it affects discipline and morale subjected to any atrophied or hy­ in the service, it can be best coped phenated system of justice except with by individuals serving full­ when required by the tactical pres­ time with men in the service. ence of the enemy forces. In that "I believe that the system is event, commangers should be lim­ workable. However, I am not in ited to referring the offender to a favor of placing the appellate civilian agency which would ac­ jurisdiction out of the Judge Ad­ company the Army in the field and vocate General's Department." give prompt justice on the spot. MAJOR, Seatle, Wash.· Vie spare no expense or thought * * * taking care of the physical needs "It is my opinion that the per­ of our soldiers. Vfhy cannot we sonnel of the BIR and of the display the same ingenuity and Supreme Court should be members zeal in furnishing them with a sys­ of Regular Army or reserves AL­ tem of precise justice rather than VVA YS, and that they should be the primitive system incorporated attorneys. Retired officers should in the Elston Act or the proposals be made available." of the Uniform Code? I am for CoL., Rock Ford, Ill. the Uniform Code even though it * * * is a single, faltering, inadequate "The efforts of A VV 66, 67, etc. step-yet it is a movement in the are a step in the right direction, right direction." but they go too far. The same 2ND. LT., Utica, N. Y. benefits could be accomplished by * * * making a final review, together Preserve Powers of TJAG with clemency, etc., the power of "Am in favor of the changes the Judge Advocate General. His made in trial procedure and make­ knowledge of Military necessity, up of court and counsel but oppose through experience and training system of civilian review as an would be the tempering factor, but absolute. Think that BIR should he in his department definitely be subject to some control by· should be divorced froni all re­ J.A.G." sponsibility to any other part or lsT. LT., Seattle, Wash. personnel of the Military System, * * * even as pertains to influencing "The administration and appel­ factors." late review of military justice CAPT., c'orfu, N. Y. The JUDGE ADVOCATE JOURNAL 11 "The Judge Advocate General's much confusion in the appellate Department should be constituted branch. I believe the Army has as a part of the Department of sufficient qualified personnel to Defense with overall direction and handle its Justice department, and appellate review for all services. not leave it in the hands of civH­ If uniformity is desirable then ians." there should be a unifying point LT. CoL., Jersey City, N. J. at the top. Personnel 'should come * * * from the most able of all three "Tl}e J .A.G. should not be services." "pushed out of the picture" like LT. CoL.; Oklahoma City, Okla. he has. I do not think such un­ * * * qualified and unrestricted judicial "If a Judicial Council is to be power should be granted civilians. adopted, it is suggested that it Military men understand military consist of five or seven members: justice more than a civilian could One member from the Army; one ever comprehend." member from the Navy; and one LT. CoL., Los Angeles, Calif. member from the Air Force; and * * * the balance, civilian members." "The Judicial Council idea is MAJOR, N. Y., N. Y. fine, but there should be more on * * * it. The power of the J.A.G. should "I believe that the General not be reduced. Certainly final Court should be appointed by The clemency action should not rest Judge Advocate General rather alone with B/R." than the Military Commander." CoL., South Weymouth, Mass. CAPT., Akron, Ohio * * * * * * "The proposed Code weakens, * * * rather than strengthens, the Judge TJAG Powers Should Be Advocate General's Department. Strengthened Not Weakened It reduces the Judge Advocate "Military Justice is the primary General to a purely administrative business of the Judge Advocate officer and takes from him all ju­ General and his position in this dicial functions and all opportu­ matter should never be weakened nity for mitigation, reduction or in any way, shape or form what­ suspension of sentences. This, in ever." my opinion, is not desirable." COL., Great Neck, N. Y. "It provides for a civilian ju­ * * * dicial c o u n c il possessing the "I am now and always have powers of a Supreme Cour~. This been against a uniform · code for not only serves no useful purpose, the three services. If takes the but is a definitely hampering ap­ powers away from the J.A.G., pendage. It is subject to the same making him a figurehead of the objection as stated in the previous department. It will create too answer and in addition serves only 12 The JUDGE ADVOCATE JOURNAL to delay and make cumbersome Such powers have never been the administration of military jus­ abused. The powers of clemency tice. It is a useless, wasteful, cum­ of the AG should be given to The bersome appendage and should be Judge Advocate General in so far dispensed with." as possible. COL., Omaha, Nebr. "This Section seems unreason­ * *--~*----- able. There must be a responsible "I believe that a larger and more head for any disciplinary system complete JAGD during the last and it has always been The .Judge war would have done much to Advocate General. I am not in eliminate many of the injustices. favor of this Section as it now The JAGD should be operational stands but I do believe there in lower levels of command and should be some check on reviews so should be the sole administrator of that we will not be met with the justice. This would require more criticism of civilian courts of ap­ members and .thus more lawyers. peal in those cases where opinions Why not include in the new code are 'Affirmed, no opinion'." that all qualified lawyers Iie com­ CoL., Rochester, N. Y. missioned directly into the JAGD * * * and assigned only to JAGD duties "The proposal appears to ignore . in the same way that doctors and the value of an integrated group, dentists are commissioned and as­ such as the JAGD, to run the mil­ signed to Medical and Dental itary justice system. I doubt seri­ Corps. Why have lawyers driving ously that a three man civilian trucks when there is such a dearth "Supreme Court" will be an ade­ of legal personnel?" ' quate substitute though I am in lST. LT., Miami, Fla. sympathy with the general idea, * * * particularly in the event of mobili­ "As the JAG Dept. is generally zation of our 'civilian army.' I charged with the administration of would propose an amalgamation of Military Justice and procedures the two ideas." thereunder, it would appear that CAPT., Chicago, Ill. the J A G's authority should super­ * * * sede that of any Civilian Council "In reference to questions 12, 13, or personnel in the administration 14 and 15, it is believed that there and enforcement of the proposed are so many questions which are Code." unique to the Service that men CAPT., Shaker Hgts., Ohio with some military training should * * * handle or participate in review as "Naturally I am opposed to this a Court. Further, civilians are Section (AW 74). I believe The likely to be as responsive to public Judge Advocate General should pressure as officers of the service· have his powers of clemency in­ are to pressure from within the creased rather than decreased. service. It seems risky to relieve The JUDGE ADVOCATE JOURNAL 13 the JAG of his authority of review JAG Dept. The JAG should be as a court." the last word in all appeals, except lsT. LT., Elba, Ala. by intervention of the Sec. of War * * * and the President. The JAG should "I am in favor of the J.A.G. re­ be a separate command responsible taining most of the powers given only to the Sec. of War and the him by the law now in effect." President." LT. COL., Holbrook, Ariz. LT. COL., Meriden, Conn. * * * * * * "Proposed system would weaken "The proposed code injects many the JAG, superimpose an agency needed amendments from a civil entirely out of military channels standpoint, but it fails to take in and one which does not have the consideration that military justice checks upon it presently prevailing must have the elements of the mil­ in the case of Federal judges and itary, otherwise it will fail com­ other appointees in positions of pletely. I dislike the failure to less responsibility and power than have the JAG as the responsible in th'e proposed positions." head of this system and feel civ­ LT. COL., San Francisco, Calif. ilians ought not be on the council. * * * Civilians are not acquainted with "I do not favor the civilian per­ the Army or services. The pro­ sonnel of having any jurisdiction posed new code is just a mess." over the military in the adminis­ LT. COL., Mt. Vernon, N. Y. tration of military justice. It is * * * my confirmed belief that The "The proposed BIR, as is now Judge Advocate General should the case, is to be constituted by always exercise clemency powers, TJAG in his office. It should, and that military boards, courts therefore; function as part of his and jurisdiction should never be office and ·be composed entirely of relinquished to civilians in any military personnel; It .should act way or form if the high, just and more in an advisory capacity, with efficient administration of Military the power to take action on its or Naval Justice is to be main­ findings an d recommendations tained, all for the best interest of resting in TJAG. On the legality discipline of the members of the of records, but not clemency, if services or armed forces. The ad­ TJAG does not concur with BIR, ministration of military justice is the matter should go to the Judi­ to my mind integral to the military cial Council for decision, if it establishments alone." would not otherwise have to any­ MAJOR, Spearfish, S. Dak. way." LT. CoL., Newark, ·N. J. * * * * * * "I am opposed to civilians par­ "While code seems to establish ticipating in any way in a court a workable system, the method of martial. This is an affront to the review should be changed to give 14 The JUDGE ADVOCATE JOURNAL more power to Judge Advocate accomplished, resign their Commis­ General, and less to B/R's. Judi­ sions. Congress would never at­ cial Council is good innovation if tempt to place civilians over the members appointed for five year Medical Corps, E n gin e er s or terms with advice of Senate." Chemical Services." CAPT., Cedar Grove, N. J. LT. CoL., Lewisville, Ky. * * * * * * If Top Positions are for Civilians Should Be Only One TJAG No Incentive to Military Lawyers "Why cannot t'here be one Judge "If the top judicial positions Advocate General? I perceive no are not open to military personnel, reason, if unification is to receive the present difficulty in securing no more than lip service, for a and retaining competent lawyers uniform code unless it is to be in the Judge Advocate General's uniformly administered. In my Corps will be aggravated." opinion, that cannot be done with LT. CoL., Columbia, Mo. several J A G's." * * * LT. CoL., New Orleans, La. "While in Service, I had a wide * * * and varied experience in Military "The establishment of this su­ Justice, i.e. Staff J. A., TJA and preme Judge Advocate General's Defense Counsel in many cases of Department would enable the uni­ charges against officers and en­ form maintenance and operation listed men. I was a Law Member of military justice procedure as in more than 500 GCM cases, with- . well as the training of personnel out one single reversal or criticism to function in the respective by the Reviewing Authority. It branches. The judicial council is my opinion, that the ''UNI­ could then operate ·as a part of FORM CODE OF MILITARY such department under the new JUSTICE" (H.R. 2498) as pro­ Judge Advocate General and posed, is a dangerous instrument; should be advisory to the ·General. that it certainly does not ade­ "With reference to 17, the sys­ quately protect the substantive tem might work, but I question rights of the accused; that it pro­ the effect on maintenance of dis­ vides for ways and means to in­ cipline. The position of the JAG flict undue, harsh and inhuman should not be weakened. As his sentences or penalties and it is a should be the responsibility of the glaring insult and personal "stab" operation and effect of military not only to the Legal Profession, justice in his branch, he should but to every member of the J.A.G. have the powers appurtenant to Corps, from top to bottom. Should such responsibility. Otherwise a this Bill become law, every officer, supreme JAGD should be created both Regular and Reserve, should supervising military justice over seek transfer to another Branch all branches of the armed serv­ or Arm, and if this could not be ices."LT. COL., Stillwater, Minn. The JUDGE ADVOCATE JOURNAL 15 "The main objective is that of Armed Forces, each of which is separation of functions of Military responsible for the administration Justice from command and to ob­ of military justice in his Depart­ tain administration thereof on a ment, constitute the logical tri­ uniform basis throughout the bunal to sit in judgment for all, Services by an integrated inde­ under the Secretary of Defense." pendent Judge Advocate Geµeral." CoL., Williamsville, Vt. Santa Monica, Calif. * * * * * * The Judge Advocate General "Should be only one JA Corps, Should Assign Judge Advocate not 3." General Department MAJOR, Alexandria, Va. Personnel * * * "Under the old law assignment Judicial Council Should be of J.A. officers was by the J.A.G. Composed of Three TJAG's Under the new bill assignment "'In my opinion the logical head is by G-1 with approval of the of any uniform code for all the J.A.G. This is a bad change." Armed Forces is the Secretary of CoL., Washington, D. C. Defense, and that he should have * * * ultimate and final decision in all "It is also my conviction that matter~ which do not require con­ members of the J.A.G.C. should be firmation by the President. (I completely removed from the in­ mean; of course, all matters which fluence and control of the C.O. to have to go beyond the initial re­ the same extent as are officers of viewing agencies.) My suggestion the M.C." is that the Judicial Council should CAPT., Hoboken, N. J. consist of The Judge Advocates * * * General of the Army, Navy, and The Judge Advocate General Air Force. As before indicated, I Department Should Select Courts do not think the Coast Guard "Take the selection of personnel should come under the military to comprise all types of C.M. from code except when it is attached to Comman·d and place it under the the Navy. Let the General Counsel officers .. of_ the J.A.G.D. and you of the. Treasury Department ad­ will remove a good portion of the minister justice for the Coast complaints. Have the J.A.G.D. Guard (see proposed Article 1 ( 4)) select personnel with no influence under their present laws, until by Command and most of the en­ they come under the Navy, then listed personnel will have more the Secretary of the Navy can confidence in the system. In other take care of them. The plan I words, separate your executive and have outlined here is more or less judicial branches." a "snap" proposition on my part, CAPT., Laurens, S. Car. but it seems to me that The Judge * * * Advocates General of the three Only the Judge Advocate General 16 The JUDGE ADVOCATE JOURNAL Should Rate Judge Advocate "Personally I am in favor of the General Department Officers Elston Act and against this new "The commanding officer should so-called Uniform Code. It is quite never· have power to rate a Staff obviously a part of the "drive" to Judge Advocate. One of my Com­ amalgamate the Army, the Navy manding Generals gave me two and the Air Force. Amalgamate V. S. ratings and put me out of them first (if that can be done) the army on W.D. Circ. 485 and then talk about a Uniform (1944s), simply because I said Code, but meanwhile don't monkey "No" to him! My previous ratings, with the administration of Mili­ my G.C.M. records and recom­ tary and, or, Naval Justice." mendation for promotion were all LT. CoL., Santa Fe, N. Me~. ignored because of his personal * * * displeasure.•This condition should "Having participated in one not be tolerated. I'd be willing to capacity or another (Trial Judge be rated on my professional rec­ Advocate, Law Member, or review­ ord by the J.A.G. Staff J.A., for a ing the case for the Reviewing Au­ sadistic commander, is the "hot­ thority) in over 200 G.C.M. cases, test" job in the army, now." I believe that the old system MAJOR, Kansas City, Mo. worked much better than most Uniform Code Desirable people believe. Changes were "I am not in favor of certain necessary, but it is my· opinion proposals of this Uniform Code. I that much was accomplished by am convinced, however, that the the Elston Act, and that improve­ need for such a code is so great ment should come gradually. Too that it is better to accept the Code much ·change is likely to lead to "as is" if necessary, rather than confusion, especially if the change risk the defeat of the proposal at­ comes too rapidly. Perhaps in tempting to iron out all its details. time there should be a Uniform I strongly urge that our associa­ Code, but I don't believe there is tion lend its hearty support to the any real necessity for it yet, and approval of the measure." I don't feel that the one proposed LT. CoL., Grand Island, Mich. is the one that should be accepted *--*-* ­ if one is. A study of the proposed Try Elston Act First code leads me to believe that the "I think there is nothing sub­ matter should have a great deal stantially wrong with the present more study." Articles of War and Court Martial CAPT., Bakersfield, Calif. procedure. Whatever mistakes * * * were ·made during World War II "In my opinion, it is much too were due almost entirely to faulty early to attempt to work out a administration by untrained per­ Uniform Code for the three serv­ sonnel due to the rapid expansion." ices. Give P.L. 759 a chance for a BRIG. GEN., Tuscaloosa, Ala. few years; many of its provisions The JUDGE ADVOCATE JOURNAL 17 are good; many may, in the light "Until prov1s10ns of the Elston of experience, have to be dropped. Act have been worked with for a "I am afraid many of our Con­ reasonable length of time, there is gressmen are losing sight of the no justification for a so-called Uni­ fact that the basic aim of Military form Code. In attempting to cor­ Justice is to promote discipline rect injustices in the old system for the furtherance of the war of Military Justice, it is very easy effort in time of conflict and not to swing too far in the other to provide a substitute for civilian direction." courts." CAPT., Chicago, Ill. LT. COL., Tulga, Okla. * * * * * * "In view of all of the work in "1. The art of a good code is the preparing the present Manual for possible and the workable, not the Courts' Martial, and in view of the ideal. Such, I believe, has been the fact there is no immediate emer­ Manual for Courts' Martial, 1928, gency or reason for speed in mak­ and such is the MCM, 1949. ing further extensive changes. "2. The Uniform Code is a striv­ Furthermore, the Congress should ing for an unworkable, ideal sys­ be made to realize that the Army tem, colored, I feel certain, by Court Martial system is not en­ civilian concepts of the ideal jus­ tirely comparable with other ju­ tice, deviating from the workable dicial systems and should not build MCM, yet trying to resemble it. up a . cumbersome complicated "3. I recommend: court system, especially in these a. A thorough study of the days when we are trying to sim­ proposed code by the American plify court procedure; the primary Bar Ass'n in the same manner purpose of courts' martial being as the MCM was studied. to maintain discipline. A system b. A fair try-out of MCM, which would weaken the discipline 1949. of the armed forces might be dis­ c. No rushing into a new, un­ astrous, especially in time of war." studied manual and code." COL., Media, Pa. LT. COL., Washington, D. C. * * * * * * "I favor proceeding with the "Although a Uniform Code 1949 Manual and making changes might be advisable, the dis.carding slowly from experience. I favor of the system set up by the Elston civilian participation, but not to Act, which was exhaustively con­ the exclusion of the military. It sidered and which remedied the should be joint participation. Let defects of the old system, without us try the changes effective 1 a reasonable try-out, seems to me, February, 1949 and work from hard to justify." them toward more changes as MAJOR, Washington, Mo. deemed necessary." * * * CAPT., Rockford, Ill. "The effort to establish a judge 18 The JUDGE ADVOCATE JOURNAL and jury segregation is not desir­ Opposed to Uniform Code able because of the exigencies of "I am unalterably opposed to a military trials. The present sys­ unified code. There are enough tem should be· tried for a while material differences in the physical before such another radical de­ structure of the several services, parture is inaugurated." particularly the Navy, as distin­ LT. CoL., Yakima, Wash. guished from the Army and Air * * * Force, to cause any attempted "As indicated in answer to No. "mother-hubbard" sort of a cover­ 2, I am not satisfied that Public all code to be unwieldy and un­ Law 759, 1948 was a wise revision. workable. Such matters as are It appears to have failed to distin­ common to the different services guish between Military Justice as can be cared for by uniform or a command function, and the mere near uniform provisions in the mechanics of trial procedure, and Articles of War and the Articles in seeking to improve the latter, of Government." has weakened the power of the LT. COL., Atlanta, Ga. officer having G.C.M. jurisdiction * * * in exercising his function of main­ Code Should be Designed for War tenance of aiscipline. Public Law "Any code should be drawn with 759 was too strongly influenced by the mind focused directly and only civilians or at least by those who,· on conditions to be met in time of if me111bers of the military, had war, in foreign countries, with all little or no field experience. Until three forces involved and command it has functioned sufficiently to in-_ in a member of any one of them dicate whether or not the changes (even in relatively small com­ it has effected are good or bad for mands as a small task force). So the service, I believe further re­ drawn, it may then be amended vision, particularly along the lines by additions to provide for con­ indicated of increasing civilian ditions to be met in time of peace participation and influence with at home or in foreign countries the concurrent weakening of com­ and at home at any time." mand functions of the military, is CoL., Richmond, Va. premature, dangerous and should * * * not now be considered. New System Would Work in "Furthermore, both S.B. 857 and Peace, Not in War H.R. 2498 appear principally con­ "The proposed code would be . cerned with removing disciplinary complicated and difficult to admin­ power from the hands of those ister in wartime. The civilian com­ charged with the responsibility of mission and the limitation of the maintaining discipline, and only power of the Judge Advocate Gen­ secondarily with uniformity be­ eral would weaken the administra­ tween the services." tion of justice, r~move responsibil­ COL., Denver, Colo. ity, create delay and might se­ The JUDGE ADVOCATE JOURNAL 19 riously impair the war effort. very inane proposal. From long While the administration of mili­ experience, including eight years tary justice during the war was, as a District Attorney, I do not in general, very fair to the ac­ think a Judicial Council is in any­ cused and much more just than wise necessary to protect individ­ the civil criminal courts, the. ual rights. Such a Council would changes made by the Elston Act be more duplication, and added should further protect all accused expense to a debt-ridden Govern­ against the miscarriage of jus­ ment. Even a casual study should tice." show any interested persons there COL., Long Beach, Calif. now exists adequate provisions for * * * the protection of individual rights "This seems to be an attempt to in the service. set up a new branch of the Fed­ "I do think that in times of . eral judiciary. It would work all peace, or when not engaged in ac­ right in times of peace and in the tual hostilities, that it might be zone of the interior, but it is im­ advantageous to have a competent practical during war-time opera­ civilian lawyer to sit as a member tions overseas. I was with the 3rd of the Board of Review, i.e., have Army in France and know how one civilian and two service men necessary it is to the maintenance upon each Board of Review. There of discipline to have prompt trials is precedent for this in the Conseil and speedy execution. We cannot de Guerre of the Belgian Army." afford the luxury of civil criminal Montgomery, Ala. trials in the armed forces during * * * war any more than we can per­ "This proposed code would be mit the practice of democracy by most impractical in war-time. Ci­ allowing soldiers to elect officers. vilians do not realize the problems In my opinion,, the theatre com­ of command. There is neither mander should have complete au­ equality nor justice when a good thority (subject to the approval of soldier can be committed to action his J.A.) over Military Justice in and at the same time extend·every his area. No one thinks anything courtesy and safeguard to a felon. of it when a fine soldier is sent The Articles were bad enough;. the to his death in battle for the good Elston :Act no better. They should of his command, but let some noisy, be streamlined rather than incum­ no good eight-ball get a G.C.M. bered, at least for use in the field and then Congressmen and the in time of war." .papers howl." CAPT., Sioux City, Iowa MAJOR, Stockton, Calif. • • • * * * "The proposed system of review "I do not know who originated I believe to be too complicated, or proposed the idea of a Judicial particularly in war-time. With a Council, but it impresses me as a trained lega~ staff the J.A. de­ 20 The JUDGE ADVOCATE JOURNAL partments or corps of each of the tion. It seems to me that the pos­ services should be fully competent sibility of a "Star Chamber" be­ to handle all the Military Justice comes far too great." matters, and it must not be over­ lsT. LT., Miami, Fla. looked that in times of war a very * * * large percentage of them will be "The Law Officer definitely reserve officers, i. e., civilians on should be a member of the court temporary military duty, and will and it is of the utmost importance in consequence bring into the serv­ that he participate in the discus­ ice, to a large extent, civilian view­ sions and deliberations of the points." COL., Atlanta, Ga. court on all questions of findings * * * and sentence. He should be there Would Work in War, Not in Peace to properly guide the court to see "In my opinion, the mistakes in that the findings are legally suf­ military justice during the war ficient and especially in questions were primarily due to lack of of finding an accused guilty of a training and not to faults of the lesser included offense. In his ab­ system. In peace-time, officers are sence a legally insufficient sentence sufficiently trained to properly per­ might be announced by the court form the duties of T.J.A. and De­ or an improper lesser included of­ fense Counsel of courts martial. ense. That can only be then cor­ The proposed plan might work in rected by a review, necessitating a war-time when many lawyers are new trial or rehearing, a waste of available. In peace-time it would time and a miscarriage of justice. be very costly, and in my opinion Once the error or damage has been a waste of money which might be done, the law officer is powerless better spent in the interests of to correct it. If permitted to dis­ national defense." cuss the matter in the court delib­ COL., West Point, N. Y. erations, he could ·prevent such * * * mistakes." Law Member Should Vote MAJOR, Brooklyn, N. Y. "Depriving the Law Officer of a vote seems to be a feeble attempt * * * to create a "Judge and Jury" pro­ "To place the Law Member in cedure. But the "Jury" may be as the position of a judge instructing few as four persons who not only a jury in the limited manner pre­ find facts but impose sentence. The scribed, would place the balance of Law Officer's value in the "closed" the court in the position of mere session is much too great to be juro~s and deprive them of an ex-. eliminated. Too many members of perienced counsellor during delib­ a court lack the necessary experi­ erations which is one of the val­ ence to be unguided finders of fact, uable adjuncts of the present particularly when the accused has system." just about no choice in their selec­ CAPT., Minneapolis, Minn. • The JUDGE ADVOCATE JOURNAL 21 "The Law Member should delib­ "In the first place, he could erate and vote with the rest of easily do this without a vote. In the court to insure legal findings the second place, voting is by se­ and sentence and to save time." cret written ballot, so that the CAPT., Clearwater, Fla. vote of the Law Member or Legal * * * Officer cannot sway other members "I believe the limitations of of the court. It makes the post of powers and duties of Law Member too little importance in the eyes very dangerous." of the very court to whom he is LT. COL., Washington, D. C. legal adviser. * * * "Errors committed by a court "I believe justice to the accused will more often than not be found will be more nearly obtained by because the court failed to heed the giving the 'law officer or member' advice of the Law Member, or be­ the same authority he now has. cause the Law Member was not My experience has been that the present at the trial. To require Law Member is the 'balance wheel' him to be present, to require him of the court." to advise and instruct the rest of CAPT., Muskogee, Okla. the court, and to prevent him from * * * voting is anomalous." "The 'law officer' should have all COL., Philadelphia, Pa. the rights and privileges of all * * * other members of the court. This "I agree with Article 26 (b) only will prevent other members from on the condition that the Law losing sight of issues in a case." Member is empowered to direct a MAJOR, Fairbanks, Alaska finding of "not guilty" for lack of * * * evidence or to submit the case to "To have a Law Officer sit with-. the court on a lesser included of­ out a vote is like letting a jury fense. Also and most important, I decide questions of law as well as would authorize the Law Member fact, leaving the_ judge a mere to comment on the evidence on rec­ arbiter of order and decorum. 0·1 d, so that the board of review Such a provision would, for ex­ will have a basis upon which to ample, deprive a Law Member of weigh the evidence appearing in the right to vote on a motion for the "cold" record of trial. This acquittal, on the ground of insuf­ writer has tried hundreds of cases ficiency of the evidence. This is to as the Trial Judge Advocate of the leave what is purely a matter of general court and has had occasion law in the hands of persons who to discuss most of these cases with have no legal background or train­ the Law Members of the court ing. Apparently the idea behind after finding and sentence. As I this provision is the fear that the now recall those cases, it is start­ legal officer would tend to sway the ling how many of those cases court to too great an extent. ' would have resulted in a finding of • 22 The JUDGE ADVOCATE JOURNAL not guilty were it not for the pres­ "I feel strongly that the "law ence of the Law Member; the rea­ officer" should vote on the findings son being that so many of the and sentence as his experience and court missed the point of the case specialized training are of great completely and proceeded to make value to the lay members of the their decisions upon immaterial court." collateral issues. For example, in LT. CoL., Providence, R. I. a recent robbery case the accused * * * stated that he struck the complain­ Favors District Court Review ing witness because of alleged in­ "In lieu of the 'Judicial Council,' decent advances by such complain­ it should be provided that the rec­ ing witness. The co-accused denied ords of trial of ALL general such advances were made by the courts' martial involving sentences complaining witness, yet during of a year or more; a dishonorable the deliberation, some members of or bad conduct discharge; death; the court were willing to justify and/or confinement in other than the assault on that basis and there­ a military or naval stockade or by completely lost sight of the fact Disciplinary barracks, shall be re­ that there was a robbery charge viewed by a U. S. District Court to be decided." before such sentence shall be fi­ CAPT., Ft. Riley, Kansas nally executed. Such relief has * * * always been available to the rich "In the past six years I have or influential members of the been the Law Member of a number armed forces through the medium of general courts. WITHIN THE of a habeas corpus proceeding. In LAST TWO YEARS I have ob­ a Democracy such as ours I feel . served a decided tendency on the that it should be equally available part of members of courts when to the humble soldier and officer as in closed session to go off on a tan­ well. A new Article should be gent in so far as the actual ele­ added setting up a Civilian Clerk ments of the offense charged were of Courts' Martial Records of concerned in applying- the evidence Trial, making those records of that was introduced. If the Law trial public records and available Member is removed from the closed to the same extent as are the rec­ session deliberations, we are going ords of trial in any criminal pro­ to have a number of "Lesser In­ ceeding of a U. S. District Court. cluded Findings" that cannot be It is the elements of 'secrecy' which sustained and some findings of to a large extent account for th~ "Not Guilty" when the evidence disgraceful results of our system would sustain and warrant a find­ of military justice in two World ing of guilty. It is not necessary he Wars. have a vote-but he darned sure "In NO instance, for even as better be in these closed sessions." long as an hour, should any mem­ LT. COL., Ft. Riley, Kansas ber of the armed forces be con­ The JUDGE ADVOCATE JOURNAL 23 fined in a Federal or State pen­ are Judges of Federal courts, and itentiary or reformatory, except should be required to have had at upon conviction of a felony, and least two years military service even then not until the record of and two years of judicial experi­ trial has been finally reviewed and ence on some court of record, State found legally sufficient by a U. S. or Federal. The other two mem­ District Court. The stigma of such bers should be appointed for def­ confinement cannot be erased by inite terms, say at least six years, any subsequent action and is ob­ one of whom should have had some viously far different from that suf­ judicial experience. Should have fered by confinement in a Military Senate approval as with Federal or Naval stockade or Disciplinary Judges." Barracks, which does not imply CoL., Mt. Clemens, 1lfich. commission of a felony." * * * LT. COL., Carmel, Calif. "The members of the judicial * * * council should be· appointed in the "It seems to me that the military same manner as our other Federal authorities headed by a Judge Ad­ Judges and they should hold office vocate General or some responsible during good behavior." officer or board should have au­ thority to handle each case to a CAPT., Salinas, Kansas conclusion with a tribunal consist­ * * * ing of constitutionally appointed Don't Change Name of Trial United States Judges having the Judge Advocate power of appellate review. I do "It is my personal opinion that not believe that the Executive or the office of Trial Judge Advocate any Executive or Administrative should be retained as to name for officer or body should have the final the reason that that office carries word in any conti:oversy between with it certain duties and func­ a citizen and the state regardless tions which are well known and of whether the offense was alleged well understood. Many of these to have been committed by the duties and functions do not appear citizen as a civilian or as a sol­ in writing in any particular code." dier." MAJOR, Lansing, Mich. CAPT., Richmond, Va. * * * * * * Reserve Personnel Should Should Have Senate Approval Not be Tried For Judicial Council "I am absolutely against reserve "Present setup of a judicial personnel being tried as now con­ council is vicious. It should be re­ templated, particularly while on moved from politics. Members are inactive duty. And what is most removable at will of President. evil is the right of a continuing The Chairman of judicial council jurisdiction over personnel al­ should be appointed for life, as though their active service is ter­ 24 The JUDGE ADVOCATE JOURNAL minated. I view this with alarm." evils complained of during World LT. COL., Harvey, N. Dak. War II were attributable to the * * * whims, foibles, caprices and preju­ Good Summary and Special Courts dices of certain commanders ex­ Are the Heart of the Problem ercising general courts martial "So far as I am concerned, none jurisdiction, sometimes aggravated of the proposals reach what I con­ by the "rat-race" policies for a sider to be the real problem. I time encouraged by the War De­ consider the summary and special partment. These evils, the Elston courts and AW 104 to be the real Act, formulated after exhaustive problem children. The abuses investigation and study by experts, which I observed while in the was designed to correct. It should Army, both as an E.M. and an not be substantially changed with­ officer were at that point. AW out a fair try-out.'' 104 was so flagrantly abused by COL., Waynesboro, Ga. one C.O. that I marvel he kept his * * * health. Anyone resents a forfei­ "The thing in which I am vitally ture or confinement if it is un­ interested is the elimination in so justly imposed. It does little good far as possible, of the possibility for a reviewing officer on ·specials of a C.O. bringing any pressure or summaries to order the record whatsoever upon those engaged in expunged because the E.M. has the administration of military jus­ already been punished and he is tice. I am in favor of enacting bitter about the experience. whatever laws may be necessary to T.J.A.'s should be retained, re­ insure a fair and impartial trial moved from the pressure of com­ without pressure from any source.'' mand, and made responsible for LT. COL., Bloomington, Ind. the inferior courts in an attempt * * * to make these courts work prop­ Staff J.A.'s Opinion on Law erly.'' Should Be Binding on C.O.'s 2D LT., Madison, Wisc. "I feel the Staff Judge Advo­ * * * cates opinion on questions of law Coercion by C.O.'s should be binding on the convening "The old M.C.M. was not bad; or confirming authority. I have in fact it was good if properly ad­ seen clear cases COMPLETELY ministered. The trouble during the disregarded by Commanding Of­ war was too much interference and ficers and one man hanged when dictation, and often coercion from he was clearly guilty of nothing above. With proper administra­ more than manslaughter.'' tion, I believe the new M.C.M. is CoL., Columbia, S. Car. satisfactory.'' * * * LT. CoL., Columbus, Neb. A. W. 58 Great Improvement * * * "After considerable Military "In my experience, most of the Justice experience: six years as­ The JUDGE ADVOCATE JOURNAL 25 signment in the Army's Correc­ can supervise or administer im­ tional System, and one year's ex­ pa1~tial justice. As far as pos­ perience in teaching military law, sible, this should be in the hands I am convinced that the incor­ of competent civilians. rigible military prisoner is a "I disagree with the premise of barbed thorn in the side of the military men that command must military establishment. also exercise military justice in "The antiquated, prohibited pro­ order to compel men to fight and visions of AW 42, which make it to sustain morale by making ex­ impossible to transfer a general amples of violators. The services prisoner, for whom a Disciplinary should put forth as much effort on Barracks has ' been designated as weeding out the cowards and mis­ the place of confinement, to a U. S. fits before they reach combat as it Penitentiary under the sentence, does in trying to compel them to has always been a source of untold fight after they get there. I am, trouble in the Army's Correctional therefore, strongly in favor of System. The Navy has no such Art. 58 which makes it possible prohibition in its Articles for Gov­ to commit a soldier to a correc­ ernment of the Navy, and readily tional institution for discipline and transfers its bad actors to a U. S. treatment even for a minor offense. Penitentiary. As a result the Navy Many, particularly among the does not have the resultant un­ young, may be improved and re­ favorable publicity, custodial head­ turned to service." aches, and blighted military careers CAPT., Colmar, Iowa that have saddled the Army for * * * all of these years. Right Personnel is the Solution "In view of these facts, I am "The people who are tinkering constrained to say that even with with the disciplinary system don't its defects, the proposed AW 58 is seem to understand fundamentals. a great improvement over our The Court Martial system as of present AW 42, as far as the De­ the end of World War II, was on partment of the Army is con­ paper near to perfection. It was cerned." a good disciplinary system, not a LT. COL., Petersburg, Va. code of jurisprudence. If it had * * * been administered by trained sol­ "I entertain the point of view diers-lawyers, it would have pro­ that military justice should be sep­ duced discipline with justice. This arated from command even more was rarely tried. It should be than in the proposed bill. In gen­ tried now. Personnel is the prob­ eral, the type of mind suited for lem." command, is not the type which CAPT., Dankery, Conn. The Association announces the removal of its offices from the Tower Building to the Denrike Building, 1010 Vermont Avenue, N.W., Wash­ ington 5, D. C. Notes From The OHiue Of The 'JAG ---Army 1. An active Reserve officer of be forwarded through that Head­ the Judge Advocate General's quarters. Corps is entitled to and should 3. The revised extension courses have received his copy of the new made necessary by the amend­ Manual for Courts-Martial, United ments to the Articles of War are States Army, 1949, which includes now in the process of being pre­ the changes made necessary by the pared and a provisional division amendments to the Articles of within the office of The Judge Ad­ War which became effective 1 vocate General ·has been estab­ February 1949. In addition to the lished for this purpose. It is an­ distribution of the Manual, the ticipated that the first of these ex­ Judge Advocate General's Office tension courses will be available has also made the necessary ar­ in August of this year or in the rangements to provide each active early Fall. Reserve officer of the Corps with a 4. Direct appointments from copy of the bulletin of The Judge civilian life in the Judge Advocate Advocate General which is pub­ General's Corps Reserve are lim­ lished quarterly. Each officer so ited to appointments in the grade entitled to receive the Bulletin of first lieutenant and the appli­ should obtain his copy at periodical cant must not have reached his 33d intervals as the same is published. birthday. 2. Recall of Judge Advocate Re­ 5. All Reserve Judge Advocate serve officers for extended active officers will be interested to learn duty is now limited to those in the that Reserve JAG training units grade of first lieutenant. However, may now be formed by six or more short tours of duty for training Reserve Judge Advocates. Appli­ purposes are open to Reserve of­ cation for the formation of such ficers of all grades, but any ap­ unit should be made to their re­ plication for such training tour spective Army headquarters, which must be forwarded through the command may approve and estab­ Army area in which the Reserve lish the formation of the unit. officer resides, or, in the event he The TO or TD for the unit will be resides in the Military District of approved by the Army headquar­ Washington, such application must ters."

A strong Association can serve you better. Pay your annual dues. Stay active. Recommend new members. Remember the Judge Advocates Association represents the lawyers of all components of all the Armed Forces. The House of Representatives passed the Senate approved S.213 granting death and disability benefits to reserves on less than 30 days active duty tours and including inactive duty training on 6 June 1949. By Col. John P. Oliver, JAGC-Res. To qualify for retirement under training; attendance at train­ Title II, Public Law 810, 80th ing assemblies; equivalent Congress, a Reserve Officer must training, instruction, duty or have completed twenty or more appropriate duties; perform­ years of satisfactory service. ance of administrative func­ Prior to June 29, 1948, each tions; for suitable duties year of service as a member of an perfo'rmed by specialists, sci­ active Reserve component is entists, or individuals having deemed to be a year of satisfactory DIA mobilization assign­ service and 50 points per year ments. When any of these will be credited for such service, are attended or participated other than active Federal service. in for a minimum of two One day will be credited for each hours unless otherwise desig­ day of active Federal service in­ nated, one point will be cluding active duty training. credited. Subsequent to June 28, 1948, a One point will be credited to the year of satisfactory service shall instructor of classes of troop or consist of any year in which a group schools; however, to com­ person earns a minimum of 50 pensate for the necessary time points, including 15 points earned spent in preparation, there will be for membership in an active Re­ credited for the day or days used serve component. One point is in the preparation, credits not to credited for each day of Federal exceed 2 points. service including active duty for Points will be ctedited at the training. rate of one point for each three Special Regulations 140-60-1, De­ rated hours of Army Extension partment of the Army, dated De­ Courses, and on the anniversary cember 28, 1948, provides the fol­ date of each year, points will be lowing method for obtaining point credited for work satisfactorily credit for a year of satisfactory completed even· though the series service. has not been completed at that 1. One point for each day of time. active Federal service. Other types of duties and serv­ 2. 15 points will be granted ices are likewise rewarded by these for membership in an active valuable points. R e s e r v e component other No limit will be imposed as to than active Federal service. the number of inactive duty pe­ 3. One point per calendar day riods attended in any "year" but will be credited for: author­ not more than 60 points per year, ized participation in field including the 15 points credited 28 The JUDGE ADVOCATE JOURNAL for membership in the active Re-, an inactive Reserve status or re­ serve component, may be credited tired without pay if qualified for for inactive duty in a "year." such retirement, or his appoint­ Only those persons who are ment shall be terminated. members of the active Reserve This action will terminate such components are qualified to earn persons' retirement benefits under points. the Act, however, reinstatement in If a member of any Reserve an active section of a Reserve com­ component fails to conform to the ponent will renew an individual's standards and qualificatjons for re­ eligibility to accrue credits toward tention in an active Reserve com­ retirement and will constitute a re­ ponent, he will be transferred to entry.

COL. OLIVER AND LT. COL. KING PRESENTED WITH AWARDS OF MERIT Upon the recommendation of Col. Oliver was a member of the Gen. Franklin Riter, Salt Lake Board of Directors of the Associa­ City, Utah, reporting as Chairman tion for the year 1947-48 and was of the Committee on Awards, Col. Wm. J. Hughes, Jr., President, has designated by the President and made presentation of duly ex­ Board of Directors to fill the un­ cuted Awards of Merit to Col. expired term of General John M. John P. Oliver of Van Nuys, Cal­ Weir upon his death in November, ifornia, and Lt. Col. Thomas H. 1948. Col. Oliver is Legislative King of Washington, D. C. Counsel of the Reserve Officers As­ The certificates of award con­ sociation and was extremely active tain the following citation: in assisting Congress in matters "This is to certify that John P. of military judicial reform and is 01 iv er, Col., JAGC-Res, and entitled to large credit for the en­ Thomas H. King, Lt. Col. J AGC­ actment of the Elston Bill as an Res, have been duly selected, under amendment to the Selective Service rules approved by the Board of Act of 1948. Directors of thE: Judge Advocates Col. King, who is engaged in Association, to receive this Award private practice in Washington, D. of Merit for their most outstand­ C., has interested himself actively ing and constructive work toward in military judicial reform and has the sound development of the law performed valuable services to the relating to the Armed Forces and Congress, the Association and the their legal· and judicial systems Armed Services toward the secur­ during the year 1948." ing of necessary legislation. 2w.inin(jJ. rp,o.int~ and Retiliement From the letters received from to obtain and maintain an ORC the members, it is patent that status. In fact, it might be said training, points and retirement are that the ORC is considered by Con­ important subjects in the minds gress to be the most important ele­ of J .A. reserves. It is equally clear ment of our defense program at that the answers to the problems the present time. In spite of this, raised have not been satisfying. many of our members feel that Col. Hughes, President of the As­ there is a present lack of a pro­ sociation, recently posed a few gram designed to provide a prac­ questions to the Director of Or­ tical and liberal means of earning ganization and Training. The ex­ the requisite ORC points. Some change of correspondence is set of them point to the successful forth for your information. Navy program as being in striking 312 Denrike Bldg. contrast. Washington, D. C. I hope you will understand that 15 April 1949 this letter is not written in any Director spirit of .criticism. The fact is, Organization & Training Division that after investigation, I have Dept. of The Army General Staff come to the conclusion that there The Pentagon is considerable merit to these com­ Washington 25, D. C. plaints. I am beginning to feel Dear Sir: that unless something is done, the Some 2000 members of the Judge present program will have a def­ Advocates Association are keenly initely adverse effect on the average interested in the reserve training patriotic reserve officer, and defeat requirl!ments of Public Law 810. I the ORC program as contemplated think these officers represent a by Congress. You must visualize patriotic cross section of the com­ his viewpoint when, enthusiastic munity. I am, therefore, disturbed about the reserve program em­ at the mounting complaints as to bodied in Public Law 810, he finds, their difficulties in obtaining cred­ after months of effort, there is no its under the Department of the prospect whatever for his· attain­ Army program. For the most part, ing the necessary points under the it seems impossible for them to program. obtain the necessary thirty-five In making the above statement, points, notwithstanding the efforts I am aware of the fact that in so they make. · f.ar as the Judge Advocate Gen­ Public Law 810 is a plain man­ eral's Corps is concerned, training date from Congress that the vast units are rapidly being formed. trained body of former officers and But these training units will not enlisted personnel be encouraged get into operation until after 1 30 The JUDGE ADVOCATE JOURNAL July next, so far as I can ascertain. ever, in the interest of the Reserve In this situation, I make the Corps to have him keep up his following specific recommenda­ interest and maintain up-to-date tions: contact with developments in Mil­ 1. That the dead-line for earn­ itary law. Increasing the point ing thirty-five points for the value for legal military training fiscal year 1 July 1948-1 as I have suggested will have this July 1949 be extended until effect. 31 December 1949, and that As to obtaining points by giving points earned between 1 July instructions, it is obvious that all 1949 and 31 December 1949 cannot be instructors. apply to both fiscal years. I would appreciate your consid­ 2. That the point value for ex­ ering the above and giving me an tension courses be increased answer some time before 1 May to five points for each course 1949, if possible, The reason I and five points for passing mention that date is that I wish an examination successfully. to deal with this subject in the 3. That each J.A.G. officer be May issue of the Judge Advocate given a credit of five points Journal. for the study of each issue of Very truly yours, the J.A.G. Bulletin and for WILLIAM J. HUGHES, JR. successfully passing an ex­ President amination on the matters of law covered by these bulletins Mr. William J. Hughes, Jr. at the end of each fiscal President year. Judge Advocates Association 4. Finally, I suggest that both 312 Denrike Building hours and points be earned Washington, D. C. during the same year, fiscal Dear Mr. Hughes: or calendar as the case may I appreciated your letter of 15 be. Having one in the calen­ April 1949 concerning your inter­ dar year and the other in the est in the Organized Reserve fiscal year is needlessly con­ Corps. I assure you that the De­ fusing. partment of the Army is vitally It seems to me that some such interested in the Organized Re­ liberalization of the point system serve Corps Program. must be adopted. After all, so With regard to your recommen­ far as the J.A.G. Corps is con­ dation concerning the deadline for cerned, the man the Army is pri­ earning retirements, the "year" marily interested in is the success­ from 29 June to 28 June following ful lawyer, not the marginal one. applies only to persons who were The successful lawyer is primarily members of a Reserve Component a busy man and cannot give too on 29 June 1948. For other per­ much time to training. It is, how­ sonnel, the "year" begins on the The JUDGE ADVOCATE JOURNAL 31 date of entry or re-ef).try into a viewpoint, including their effect on Reserve Component. These dates other branches and agencies of the and requirements were established Department. If retirement points by legislative action and cannot be were awarded for studying the changed by Department of the J .A.G. Bulletin as you suggest, Army administrative procedure. other branches would be justified However, House Resolution 3039, in claiming points for studying ar­ dated 28 February 1949, was in­ ticles in such publications as the troduced on the floor of the House Infantry Journal and the Medical on 26 April 1949. This bill, if Journal. It is my opinion that the enacted, will cha'.nge the date for intent of the Reserve Retirement earning retirement points from 29 Act was to reward and to provide June 1948 to 1 July 1949. This in a goal for those personnel who ac­ effect will credit automatically tively participate in the Reserve each member of the Active Reserve Component programs. The liberal­ with 50 points' for the period 29 ization of the requirements for June 1948-1 July 1949. earning retirement points for those Since Army Extension Courses individuals who, for various rea­ range generally from five (5) to sons, cannot actively participate in thirty (30) hours with some in­ the established Reserve program is cluding as many as one hundred not considered justified. (100) hours, it would not be prac­ I agree with your recommenda­ ticable to award one student five tion that both hours of credit for retirement points for five (5) retention in the Active Reserve hours of work and another student and retirement points be earned the same number of points for one during the same year and action hundred (100) hours. L believe is being taken at this time to ac­ our present method of awarding complish this. one retirement point for each three Again, thank you indeed for (3) hours of study required is a your interest in the Organized Re­ sound system. serve Corps. I hope this letter Reference your recommendation gives you a better understanding concerning the award of points for of our problems. study of the J.A.G. Bulletin; the H. R. BULL Department of the Army, as you Major General, GSC know, must look at matters from Director of Organization a National Defense viewpoint to and Training · insure that we support in our EDITORS NOTE: There have been policies the best interests of the 3 identical bills introduced in the Government as well as the in­ Congress, HR ·3039, S.1698 and S. dividual. When recommendations 1939 to establish a new "cut off" are received concerning one branch date for Civilian Component Re­ tirement purposes. The date desig­ or arm of the Service, they must nated in these bills is 1 July 1949 be considered from · an over-all and all service prior to that date 32 The JUDGE ADVOCATE JOURNAL will be deemed "statisfactory fed­ Services' want of an adequate eral service" within the meaning training program. Growing Con­ of PL 810-80th Congress. The gressional interest is being raised intention is to remedy the injustice in these bills but no committee resulting from inability of many hearings have been held up to this reserves to secure satisfactory time, and considerable effort will service during the period 29 June be required to get an enactment 48 to 28 June 49 because of the this session.

NOMINATING COMMITTEE The President, Col. Wm. J. Hughes, Jr., upon the advice of the Board of Directors has designated Thomas E. Sands, Jr., of Minneapolis, Minnesota as Chairman of the Nominating Committee for the annual 1949 election of officers and directors. The following have been desig­ nated to serve as members of the Nomination Committee: John H. Hen­ dren of Jefferson City, Missouri; Henry C. Clausen of San Francisco, California; Max R. Traurig of Waterbury, Connecticut; Frank Brockus of Kansas City, Missouri; F. J. Lotterhos of Jackson, Mississippi; Mason Ladd, University of Iowa, Iowa City; Martin W. Meyer of Washington, D. C.; Clarence G. Strop of St. Joseph, Missouri; Richard E. Kyle of St. Paul, Minnesota; Henry C. Todd of San Francisco, Cailfornia; and David G. Geffner of Providence, Rhode Island. The Nominating Committee, as provided by Article IX, Section 1 and Article VI, Section 2 of the By-laws, shall not less than sixty days prior to the annual meeting of the members of the association file with the Secretary a list of candidates to be elected to the offices of the as­ sociation and Board of Directors at the ensuing annual meeting. Reg­ ular members of the association, other than those proposed by the Nom­ inating Committee, shall be eligible for the election provided that any such nomination shall receive the written endorsement of not less than twenty-five members of the association in good standing, and such nom­ ination shall be received by the Secretary not less than forty-five days prior to the annual meeting. Twenty-five days prior to the. annual meeting ballots containing the names of all nominees shall be distributed to all members. Voting will be by secret ballot and tabulations will be made in time for announce­ ment of the results of the election at the annual meeting by a Board of Tellers.

D. C. LAWYERS AND DOCTORS GET TOGETHER Members of the Judge Advocates Association, JA Chapter ROA, D. C. and Medical Chapter ROA, D.C., were guests of Dr. Dan Sutten­ field at his beautiful Forestville, Virginia, estate on June 25th to par­ ticipate in a joint medical-legal operation. The mission was to have an enjoyable time in typical outting fashion. There were swimming, bad­ minton, horseshoes and other active sports as well as medical and legal bull sessions accompanied by sociable "elbow bending." The liquid re­ freshment was excellent and sufficient, and the solid nourishment, beyond compare. The mission was very pleasantly accomplished by the forty lawyers and doctors attending. Civilian MilitaQ' Gornrnment Courts In Germany By Eli E. Nobleman* During the past 100 years, the these Courts were staffed by Army United States Government has en­ Officers and were generally of two gaged in a number of military oc­ types: 1) Military Commissions and 2) Provost Courts. The for­ cupations. In every instance, the mer tried more serious violations occupying forces of the United of the laws of war or of the oc­ States have maintained law and cupant's proclamations, laws, or­ order in the areas under their dinances or directives. The latter control by means of Military were concerned only with minor in­ Courts. Prior to ·world War 11, fractions. *EDITORS' NOTE: Mr. Nobleman The procedures followed by these is Counsel to the Senate Subcom­ Courts were derived from and mittee on Relations With Inter­ based entirely upon the Articles of national Organizations, Committee War and the Manual for Courts­ on Expenditures in the Executive Departments. He was formerly Martial, and they lacked, of neces­ Chief of the German Courts sity, many of the safe-guards of Branch and Military Government the Anglo-American system of jus­ Courts Branch of the Legal Divi­ tice to which we are accustomed. sion of the Office of Military Gov­ ernment for Bavaria. He has For the most part, these tribunals served on many Military Govern­ were concerned with the protec­ ernment Courts as Law Member tion of the security of the armed and President. He also assisted in forces of the occupant. Violations the reorganization and supervision of the German Judicial System. of local laws by inhabitants of the For a complete description of occupied areas were generally left United States Military Govern­ to the indigenous courts, which un­ ment Courts in Germany, prior to der international law, were per­ August 1948, see Nobleman, The Administration of Justice in the mitted to function. United States Zone of Germany, During World War I, the United VIII, Fed. Bar. J., (October 1946). States Army established the cus­ Problems relating to procedure and evidence will be found in tomary Military Commissions and Nobleman, Procedure and Evidence Provost Courts in occupied Ger­ in American Military Government many. As in the past, the Mili­ Courts in the United States Zone tary Commissions were concerned of Germany, VIII, Fed. Bar J., 212 (January 1947). See also Noble­ with serious offenses. Superior man, Military Government Courts: Provost Court~ had authority to Law and Justice in the American sentence persons convicted by them Zone of Germany, American Bar to a maximum term of imprison­ Association Journal, August, 1947 ment of six months and $1,000 fine. issue. Mr. Nobleman is active in the ORC and holds the rank of 1st Inferior Provost Courts were lim­ Lt., J AGC-Res. ited to sentences of one month and 34 The JUDGE ADVOCATE JOURNAL maximum fines of $100. Although these Courts func­ During World War II, a major tioned effectively from a stand­ development occurred with respect point of protecting the security of to Military Courts. As the first the occupying forces, procedures American troops entered Germany, laid down were not alway followed a new court system was estab­ and many convictions lacked suffi­ lished. Appointed by Army Com­ cient evidence to warrant them. In manders during combat, these new addition, sentences were sometimes tribunals, which were known as unduly harsh and without justifica­ Military Government Courts, were tion. Opinions were not required, of three types: Summary Courts; and when written, were not pub­ Intermediate Courts; and General lished. The situation constituted Courts. They were established by an anachronism in view of the fact Military Government Ordinance that one of the fundamental war No. 2 and were given jurisdiction aims and occupation objectives of over all offenses committed by in­ the United States was the prepara­ habitants of the occup\ed areas, tion of Germany for a democratic with the exception of members of way of life. the armed forces of the Allied Na­ In an attempt to meet this situ­ tions and the enemy. Because the ation, the Office of Military Gov­ German judicial system had ceased ernment for Germany (OMGUS) to exist, their jurisdiction over of­ issued a directive on July 16, 1947, fenses extended not only to all vio­ setting forth certain fundamental lations of Military Government principles to be observed and ad­ legislation, but to all offenses hered to in the trial of cases · by against German law as well. Military Government Courts. This The procedures followed by these directive stated, in part, that it courts were a combination of the was desired that Military Govern­ Courts-Martial, German and An­ ment Court proceedings "conform glo-American systems. This inova­ in all essential points to the tra­ tion was necessary, in order that ditional procedures of American the personnel staffing them, as well Law which apply whenever the as the persons appearing before life, liberty, or property of an in­ them1 would be able to understand dividual are subjected to penal the nature of the proceedings. procedure. The sole function of Between the fall of 1944, when Military Government Courts is to they began to function, and July, give justice in every case before it, 1945, when combat, ended and the according to the law and the evi­ permanent occupation phase began, dence." 343 Military Government Courts This directive had the effect of had tried over 15,000 cases. By the putting all Military Government end of 1946, there were 250 Courts Court personnel on notice that functioning. By August, 1948, fundamental rights had to be ob­ over 360,000 cases had been tried. served and respected in all cases The JUDGE ADVOCATE JOURNAL 35 tried. However, a number of the the expressed purpose of bringing judges and prosecutors staffing the it into closer conformity with the Courts were not attorneys and, judicial system of the United many who were, lacked the ex­ States. , perience necessary to enable them To effectuate this new system, to perform their work properly. 0 M G U S promulgated Military An additional stumbling block in Government Ordinances No. 31, 32 the way of the observation of dem­ and 33, which set up, for the first ocratic practices lay in the fact time, an integrated, zone-wide that all Court personnel were ap­ court system, as a separate unit of pointed and supervised by the OMGUS, entirely divorced from Chief Legal Officer of the Land the Land (State) Offices of Mili­ (State) in which the Court was tary Government. In addition, functioning. Thus, the same in­ the prosecution function was sep­ dividual, who was responsible for arated from the judicial function the appointment of prosecutors by the creation of the Office of the and judges, reYiewed the cases on Chief Attorney, consisting of the appeal. No regular appellate pro­ Chief Attorney and District Attor­ cedure existed. Instead, a system neys, as part of the Legal Division of administrative review was in of OMGUS. A further feature was effect, which was discretionary in the establishment of regular ap­ some cases and mandatory in pellate procedure. others. Finally, a serious shortage Ordinance No. 31 divided the of qualified legal personnel fur­ United States Area of Control into ther weakened the entire system. 11 Judicial Districts with District During the summer of 1948, Courts, District Judges and Magis­ plans were made to effect a com­ trates in each District. The ad­ plete civilianization of Military ministrative chief of the entire sys­ Government Courts in the United tem is the Chief Judge of the States area of control. This was in Court of Appeals, who is the high­ accordance with the policy of our est judicial authority in the Government to civilianize Military United States Control Area. Dis­ Government as completely as pos­ trict Courts, consisting of three sible. However, even more com­ District Judges or two District pelling was the desire to eliminate Judges and one Magistrate, cor­ existing injustices and undemo­ respond generally to the old Gen­ cratic practices which had crept' eral Courts. The authority of the into the system over a four-year District Judges is similar to that period. Accordingly, on August 18, formerly possessed by the Inter­ 1948, OMGUS issued General Or­ mediate Courts and the Magis­ der No. 33, announcing the re­ trates possess powers similar to organization of the Military Gov­ the old Summary Courts. Thus, ernment Court system in the the District Court has jurisdiction United States Control Area, with to impose any lawful sentence, in­ 36 The JUDGE ADVOCATE JOURNAL eluding death; District Judges can the Judicial District in which the impose any sentences up to 10 Court is located. years imprisonment and $10,000 A complete system of judicial re­ fine and Magistrates have author­ view has been established, replac­ ity to impose sentences up to one ing the prior practice of adminis­ year imprisonment and $1,000 fine. trative review. Convictions by a Where a death sentence is imp~sed Magistrate may be appealed to a by a District Court, the decision District Judge; convictions by a must be unanimous. District Judge or a District Court The District Courts and the Dis­ may be appealed to the Court of trict Judges also have civil juris­ Appeals which consists of a Chief diction. However, at present that Judge and six Associate Judges. jurisdiction is exercised only with The Court of Appeals has original respect to actions for damages jurisdiction to act upon applica­ arising out of automobile acci­ tions for release from confinement dents, not involving United States when the person confined has been Government vehicles, between Ger­ sentenced by a District Court. Its mans and United Nations nation­ appellate jurisdiction includes both als, and certain cases arising out questions of law and fact, except of navigation on the Rhine River. that in criminal cases, the Court Consideration is being given to can only set aside the decision of extending this jurisdiction to other a District Court if the evidence t~ of. civil litigation. does not support a finding of guilt The criminal jurisdiction of beyond a reasonable doubt. these Courts extends to all persons The Court is required to grant in the United States Area of Con­ leave to appeal in any case in­ trol, except military or naval per­ volving a sentence of death or im­ sonnel. This would include Ger­ prisonment for ten years or more; man nationals, United Nations in any case where it appears that displaced persons, and dependents a conflict exists between the de­ of United States occupation per­ cision of two District Courts or a sonnel. Persons subject to the Mil­ District Court and the Court of itary Law of the United States, Appeals; where it appears that such as civilian employees of the there has been a denial of due Department of the Army, can be process; where an important ques­ tried by these Courts only when tion of law is presented; or where such trial has been authorized by 'the rights of the appellant appear the Military Governor. to have been substantially preju­ With respect to offenses, these diced. In cases involving the death Courts have jurisdiction over all sentence, review by the Court of violations of legislation of the Al­ Appeals is mandatory, whether or lied Control Council, Military Gov­ not a petition for appeal has been ernment legislation and offenses filed. Furthermore, the Court may against German law in force in review any cases in which it ap­ The JUDGE ADVOCATE JOURNAL 37 pears that the rights of a defend­ pointments, have had considerable ant may have been substantially experience in that capacity, with prejudiced, even though no peti­ the Military Government Courts in tion for appeal has been filed. Germany. Ordinance No. 32 sets up a Code The Courts are now required to of Criminal Procedure which is write opinions which are published substantially similar to our own and a regular system of stare de­ and contains all of the fundamen­ cisis is being followed. As a result, tal safeguards which are found in an interesting and important body the. Anglo-American legal system. of law is being built up. Further­ Ordinance No. 33 establishes a more, the Court of Appeals has Code of Civil Procedure which is been writing decisions which h.ave also in conformity with the Amer­ finally settled many complicated ican system. points of law which faced · the The Chief Attorney represents Judges· of the old Courts and to the Military Government before which no· satisfactory answers the Court of Appeals. In addition, could be found. he is responsible for the super­ Another important feature of vision and direction of all Dis­ the new system is that calendars, trict Attorneys. Provision has which were formerly overcrowded, been made for a District Attorney · as a result of lack of sufficient and one or more Assistant Dis·· legal personnel and lack of proper trict Attorneys to be stationed in supervision, have been brought up each Judicial District. to date. There are now 67 Judges Although this new system has and 32 District Attorneys for the been functioning only a short time, entire United States Area of Con­ the 'results are notable. All of the trol, whereas previously, there Judges and :Oistrict Attorneys are were 68 Judges and Prosecutors experienced lawyers and many of for the State of Bavaria alorre. the Judges are professional jurists The civilianization of Military who have served in State Courts in Government Courts in Germany various parts of the United States. has gone a long way toward teach­ The Chief Judge of the Court of ing democracy and the democratic Appeals, William Clark, formerly system to the German people. All a United States Court of Appeals of the democratic safeguards mean Judge for the Third Circuit, has absolutely nothing in the absence had many years of experience on of impartial courts to protect fu~­ the Federal Bench in the United damental rights. It has been cor­ States. Those Judges who have rectly stated that the true adminis­ not had judicial experience in the tration of justice is the firmest United States, prior to their ap­ foundation of good government. 38 The JUDGE ADVOCATE JOURNAL JI. ti(. 4080 STATEMENT OF Major General Thomas H. Green, The Judge Advocate General of the Army, Before the Committee on Arvied Services of the Senate Mr. Chairman and Gentlemen of it is not just, it will have a deleter­ the Committee: ious effect on morale and thus tend I appreciate this opportunity of to destroy the fighting effective­ appearing, at your request, to ex­ ness of an army. The Articles of press my opinions as to H.R. 4080. War which were enacted in 1920 At the outset I would like to make and amended in 1948 have been it clear that I am not speaking for calculated to attain these objec­ the Department of the Army. I am tives. The provisions of the pres­ merely expressing my own views, ent Articles of War have been the which, however, also represent the result of an evolutionary process considered opinion of many of the of study, administration, trial and officers of the Judge Advocate Gen­ error over many hundreds of eral's Corps who have devoted years. I believe they have at­ many years to the study and prac­ tained a harmonious combination tice of military justice. of procedural and substantive law I am in favor of a uniform code which is military and which pre­ of military justice and so advised serves to the soldier every constitu­ the Armed Services Committee of tional safeguard of due process. In the House of Representatives in most r~spects military due process 1947 when it considered the acco:~~-~l?:.a~ .. ~ccu~~d. j~r§9.ii::-more amendments to the Articles of War safe.guards than he would.have in whic'h were enacted by the last a civil court: A~ f~r ~s the effec­ Congress. I could not agree with tiveness 'of our system of justice any principles of uniformity which is concerned I would like to quote involves backward. steps in the in­ from the report of the War De­ surance of essential justice or de­ partment Advisory Committee on prives the three services of their Military Justice which recom­ own basic disposition of their in­ mends the substantial changes dividual disciplinary problems. made by the last Congress: The object of a code of rnrntary "* * * the Army system of jus­ justice must be to further the mis­ tice in general and as written in sion of the armed forces, which is the books is a good one; that it to fight and win wars. In its is excellent in theory and de­ operation it must be both military signed to secure swift and sure j'ustice; and that the innocent and just. If it is not military it are almost never convicted and will be an impediment to the force the guilty seldom acquitted." which it is intended to support. If . The Committee found certain The JUDGE ADVOCATE JOURNAL 39 defects in the operation of the sys­ which provides that minor defects tem, however, the most important in pre-trial investigations are not of which pertained to the improper jurisdictional and thus anticipated influence of commanders upon the view of the Supreme Court re­ courts primarily with respect to the cently expressed in the case of severity of sentences. These de­ Humphrey v. Smith; Article 52 fects have been corrected by the which removes ambiguities of the Elston Bill _or Kem amendment present AW 43; and Article 7 4 and by the Manual for Courts­ which clarifies the remedial action Martial. ' Commanders are express­ to be taken as the result of a new ly forbidden to censure, reprimand, trial in which the former sentence admonish, or unlawfully influence is not sustained. a court or any member thereof But the code has many defects. with respect to its or his judicial I will not take the time of the com­ functions. The Manual expressly mittee at 'this juncture to discuss enjoins courts to exercise their in detail each of the provisions own" judgment with respect to sen­ which in my opinion will not only tences and not rely· upon the re­ impair the functions of military viewing authority to cut down a justice but also diminish the sub­ sentence which the court itself be­ stantial rights of accused persons. lieves to be excessively severe. With the permission of the com­ I think our present statute is an mittee I would like to furnish a excellent one, and the entire army more detailed analysis. I would is cooperating to the fullest ex­ like, however, to dwell on some tent in its operation-I hope you features which I regard as funda­ will let us keep it long enough to mental. These are: prove its worth. 1. The sweeping extension of The proposed code has many ex­ military jurisdiction over civ­ cellent features. It is logically or­ ilians (Arts. 2, 3). ganized and preserves many of the 2. The limitations on the powers desirable features of the present of the law member (Arts. Articles of War. In particular I 26, 39). would like to commend the drafts­ 3. The mandatory requirement men for their improvement and that the officers conducting clarification of Article 2 (11) the prosecution ai:id the de­ which deals with jurisdiction over fense shall be lawyers certi­ persons serving with al).d accom~ fied as qualified by The Judge panying the armed forces in the Advocate General (Arts. 27, field in time of war; Article 4 38). which deals with the right of of­ 4. Wide extension of the powers ficers dismissed by the President of Board of Review with re­ to trial by court-martial and pro­ spect to nonlegal matters. vides for a constitutional disposi­ 5. The creation of a civilian tion of such cases; Article 32 ( d) Court of Military Appeals...... ,...... b 1!1ans, Congress has been very committed an offense against the zealous to preserve civilian juris­ code, punishable by confinement of diction. five years or more and for which In so far as Army and Air he cannot be tried in a Federal or Force personnel are concerned, state court while in a status in Articles 2 (3) and 3 (a) of the which he was subject to the code, code extend military jurisdiction shall not be relieved from amena­ over persons not now subject to bility to trial by courts-martial. it. I believe this is unnecessary The question as to whether he can and the inevitable result will be be tried by a Federal or state public revulsion against its exer­ court for the offense becomes a cise. It has been my experience jurisdictional one. It may be hard that, no matter how just and fair to decide. In U. S. v. Bowman, 260 the system of military justice may U.S. 94, the Supreme Court held be, if it reaches out to the civilian that any offense directly injurious community, every conceivable emo­ to the. Government for which Con­ tional attack is concentrated on gress provided no territorial limit­ the system. This is as it should ation may be tried by a District be. The framers of the Constitu­ Court no matter where the offense tion. recognized that civilians is committed. Whether a partic­ should be tried by civilian courts ular offense comes within this lim­ and they establised a military sys­ ited category is a fit subject for tem of courts for the Army and debate among lawyers. It may not Navy. I recognize that reservists be settled except by the Supreme on inactive duty training may com­ Court. It is not a proper subject mit offenses, perhaps serious ones. for determination by a court-mar­ I also recognize that many serious tial. If you expressly confer juris­ offenses committed by persons sub­ diction on the Federal courts to . i ne cnarge wmcn ne gives of innocence, and assist the court them will be on the record­ in preparing the formal findings everything that he gives in op::m after the actual findings have been court will be on the record. When they go back to deliberate made, but he is deprived of his they are like a jury and there vote and excluded from the closed is no particular record with ref­ sessions of the court. This results erence to that. in the loss of legal experience and "The law member, when he re­ learning during the most critical tires with the court, may make any kind of statement to them. stage of the proceedings and de­ And it has been stated-I would prives the court of legal guidance not say on how good authority­ at a time when it most urgently re­ that frequently when he went quires such guidance. The require­ back there why he said, 'Of course the law is this way but ment of the Kem amendment that you fellows don't have to follow a law member be a lawyer and it.'" (Hearing on H.R. 24!.l8, p.. that he participate in all proceed­ 607). ings of a court-martial is regarded I doubt if any lawyer law mem­ by all who have had experience in ber ever said a thing like that. the administration of military jus­ The presence of the law member tice as the most significant im­ in the closed sessions in infinitely provement since automatic appel­ more likely to prove a deterrent late review. The limitation on the against the expression of such a effectiveness of the law member sentiment by' anyone. will result in miscarriages of jus­ The analogy between the pro­ tice both to fhe detriment of ac­ posed law officer and a civilian' cused persons as well as to the det­ judge is more apparent than real. riment of the interests of the Gov­ For example, he rules subject to ernment.. objection by any member of the The only argument for the court on the question of a motion 42 The JUDGE ADVOCATE JOURNAL for a finding of not guilty under have many more. I would say that Article 51. Suppose that he has fully 70% of these cases involve ruled, as a matter of law, that the extremely simple issues which can prosecution has not proved a be adequately and fairly tried by prima facie case and a member line officers. I would like them objects to his ruling. Under the tried by lawyers, it is true, but proposed code the court closes­ the difficulty of procurement of excludes the law officer, and votes sufficient lawyers to provide at on this legal question. The law of­ least three for every one of 6000 ficer cannot explain his ruling, de­ general court-martial cases is fend it, or vote to sustain it. Al­ enormous. If I am to certify each though under AW 31 such a ruling one as qualified I will have to by the present law member is also satisfy myself that he is qualified subject to objection at least he can to try any kind of a general court­ defend his ruling against the ar­ martial case, not just a simple gument of a member who may not AWOL or desertion case which be well versed in the law. I don't rests on a morning report. I can't believe this change which makes just certify every lawyer no mat­ the law member a mere figure­ ter what his trial experience or head is defensible. criminal law background may be. 3. Mandatory requirement for If bar membership were the only legal qualification of counsel. qualification necessary, why would Article 27 requires that the trial Congress require me to certify the counsel and defense counsel of lawyer's qualifications? Where can each general court-martial must I find lawyers so qualified in suf­ be a qualified lawyer and certified ficient numbers to try 6000 cases to be competent to perform his a. year? Unless I find them, the duties by The Judge Advocate few lawyers I have will have to General. If their assistants are try the cases, simple and difficult, to perform in any capacity other to the exclusion of all other duties than in a merely clerical one, which may be more important to they too must be so qualified under .the Government than the trial of Article 38. simple cases which could as ef­ AW 11 of the Kem amendment fectively be tried by line officers­ now provides that if the trial or lawyers learning military jus­ judge advocate is a lawyer, the tice. The inevitable result will be defense counsel must also be a long delays in the disposition of lawyer. This is a fair rule and cases pending the procurement of corrects many of the defects in the three lawyers at the right time ·former system justly criticized by and place. Some cases are long the public and the legal profession. and difficult. While a team of three In the Army we now have approx­ lawyers is trying a case which imately 6000 general court-martial takes weeks to try-many accused cases per year. In time of war we whose cases could be disposed of in The JUDGE ADVOCATE JOURNAL 43 an hour or less will be . waiting in izes the Board to disapprove or a guardhouse until their cases can mitigate legal sentences which be reached. I don't think this is have been approved by responsible the result you want to attain. I senior commanders. It authorizes don't think it's necessary because them to consider other than legal there will be a trained and experi­ matters in determining what part enced law member on the court to of a finding or the sentences, see that the rights of the accused should be approved. For example, are protected in even a simple case. a Board may consider that a given ~n addition, the review of the staff order which an accused is charged judge advocate and automatic ap­ with having violated is unwise, pellate review will prctect the ac­ and that therefore, on the basis cused's substantial rights against of the' entire record, a finding the errors of counsel. The prac­ should be disapproved. This makes tical difficulties of the article could possible an unwarranted invasion be ameliorated if you gave the ac­ of the command prerogative and cused, at his option, the right to be defended by a lawyer provided by would authorize the Board of Re­ the appointing authority even view to substitute its judgment on though the trial judge advocMe is military policy for that of the com­ not a lawyer. I would also have mander in the field. This deter­ no objection if the requirement of mination under the proposed bill the proposed Article 27 were lim­ would be absolutely final. I could ited to cases in which the death not apneal that case to the Court penalty or confineµient in excess of of Military Appeals because the 10 years might be adjudged. Board's determination would not 4, Powers of the Board of Review he based on a cmestion of law. Article 66 ( c) provides in part Under the present case load in that the Board of Review my office I have six Boards of Re­ "* * * shall affirm only such view. I may soon need more. Un­ findings of guilty, and the sen­ der the proposed bill I would need tence or such part or amount of even more. The members are the sentence, as it finds correct in law and fact and determines, bright. well oualified and conscien­ on the basis of the entire record, tious military lawyers. They have should be approved." experienci> both as soldiers and as Under Articles 66 and 67 the JawvP.rs. Manv of them are rela­ determination of the Board of Re­ tivelv vounr:. Thev function well view is final as to any matter other in deti>rmininP." leP"al sufficiencv of than a question of law. The latter records and in weighing evidence. is subject to appeal to the Civilian They have not all, however, at­ Court of Military Appeals either tained the wisdom in matters of by The Judge Advocate General or policy which comes with Pxperience the accused. This in effect author­ and age nor have they all at­ 44 The JUDGE ADVOCATE JOURNAL tained the instictive familiarity these extended powers will demand with military matters which comes and because the increased demand with many years of experience for the services of my most quali­ with troops. The powers which fied officers to fill other positions. Article 66 gives them have here­ This too will delay the disposition tofore been exercised by the con­ of cases. firming authority, i.e., the Presi­ The bill proposed by Professor dent, the Secretary or the Judicial Morgan's committee had a remedy Council and The Judge Advocate for this provision-it authorized General-all of whom have far The Judge Advocate General to greater responsibility with respect refer a case to another Board of _ to the accomplishment of the mili­ Review if he was dissatisfied with tary mission than do the Boards of its holding. This was somewhat Review. I believe it unwise to en­ unjudicial and the House commit­ trust such sweeping powers to tee struck it out-wisely, I think. such relatively younger officers or It did, however, point out the ex­ civilian employees (as authorized_ tremely critical problem. Some ju­ by the code). I must use younger dicial remedy should be provided. officers on these boards-because I I urge you to leave the power to can't concentrate all my older and commute 'and consider nonlegal wiser heads in Washington. ,Some matters with a confirming author­ of them are :needed in the overseas ity and to authorize The Judge Ad­ theaters and other commands vocate General to dissent with the where difficult military legal prob­ Board and refer any case to a lems arise. And even in Washing­ higher confirming authority or a ton I have to use senior officers to Military Court of Military Ap­ head my Claims, Military Affairs, peals. This brings me to my final Contracts, Procurement, and Pat­ major point of disagreement. ent Divisions. Under the proposed .5. Civilia:i Court of Military Article 70 I would have to provide Appeals an undetermined number of my At the outset I would like to ablest appellate officers as appel­ state that I am in accord with the late Government and Defense underlying principle of Article 67g Counsel to represent the Govern­ which provides for a continuing ment and the accused before study of military justice matters Board of Review and before the to be conducted by a body of emi­ Court of Military Appeals. Jn nent jurists in conjunction with spite of the fact that the proposed The Judge Advocates Generals of bill will increase somewhat the the services and annual report to number of cases to be examined the responsible Secretaries and the by a Board of Review, The Judge Congress. The remarkable accom­ Advocate General will have to re­ plishment of the Vanderbilt Com­ duce the number of boards because mittee clearly demonstrates the of the especially high qualifications usefulness of such a study. It pro­ The JUDGE ADVOCATE JOURNAL 45 vides helpful liaison with the legal enemy, of a· division commander's profession. It would ultimately orders to go i.nto a particular posi­ lead to further perfection of the tion with his battalions and stay system of military justice. there. In the heat of the battle But with respect to a wholly his group left that position. He civilian court of military appeals contended that he was going to an I cannot agree. Military justice alternate positio;n from which he is a field of the law which requires could more effectively accomplish not only a thorough familiarity his mission. Among the issues in with criminal law-but also ex­ the case was the question of perience and training in military whether he was attached to the matters. You would not entrust a division or merely supporting it. complicated patent problem to a This involved both a question of tax lawyer who was not thor5ugh­ fact and of military law. If he ly familiar with the engineering was merely supporting the divi­ or other technical matters involved sion, to what extent did the divi­ no matter how good a tax lawyer sion commander have authority to he might be. The capstone of the order him to stay in a position system of military justice should which he considered poor; if he consist of those military lawyers was attached, to what extent did who are most highly. experienced the group commander have dis­ and trained both from a military cretion in exigent circumstances to and a judicial viewpoint; both as leave a position given him by the soldiers and as judges. The legal division· to go to another one of services of the Army, Navy, and his own choosing? Air Force have produced such These are _all problems which re­ judges and are ideally organized quired a thorough and detailed to produce more such judges. This knowledge of tactical organization, requirement can't be met merely the legal effect of a Corps Stand­ by providing that the . Civilian ing Operating Procedure, and cus­ Court of Military Appeals will toms of the service in general. consider only questions of law. What special qualifications do civ­ Every lawyer knows that ques­ ilians without extensive military tions of fact and questions of law experience have to determine such cannot be separated in airtight questions? I can cite you many compartments. Military law in it­ such cases. For instance, is an air self embodies hundreds of com­ base several hundred miles from plicated problems of status aris­ a target "Before the enemy?" And ing out of customs of the service consider the purely military legal as well as statute and regulation. problems presented by Wade v. In the files of my office there is Hunter as to whether military ex­ a case of a Corps Artillery Group igency constituted imperious neces­ Commander who was tried for the sity with respect to former jeo­ willful disobedience, before the pardy. These are problems which 46 The JUDGE ADVOCATE JOURNAL ultimately would be resolved by the Council busy but not enough to Court of Military Appeals. create a bottleneck. Under the Is there a need for such a court? proposed bill only death ~ases-and Has the administration of military cases involving' general officers' will justice broken down at the appel­ goto· the Court of Military Ap­ late level? I submit that there has pe.als ·automatically but each ac­ . been no such failure. The opinions cused will have a right to petition and holdings of the Boards of Re­ for review by that court. I think view since their creation in 1920 it has been estimated that in peace­ constitutes one of the most com­ time in 85 per cent of 14,000 cases, prehensive bodies of criminal re­ or in almost 12,000 cases, the_ ac­ ports in the United States, reports cused will have a right to petition which compare favorably with the Court of Military Appeals for those of both Federal and state revie~. I think it fair to assume appellate courts. The remarkable that a substantial percentage of success of the military appellate those 12,000 accused will exhaust system is attested to by the fact their remedy. Atlhough only a that, out of more than 200 habeas small percentage of those cases corpus cases arising since World may result in review, the task of War II only one accused has been considering the petitions them­ released from confinement as the selves will be enormo.us. If the result of final court action on his Court of Military Appeals of three' petition. The grounds upon which judges gives the consideration the one exception was released was which each petition deserves it is overruled by the Supreme Court of self.evident that substantial and the United States two weeks ago deleterious delays will occur. in Humphrey v. Smith. I am proud I think I have demonstrated that of that record. there is no need for further review Under our present system the for legal sufficiency of records most serious cases such as those after military appellate review. involving death sentences, life im­ Under the uniform code there is prisonment, cases involving gen­ unquestionably a need for uni­ eral officers, and cases extending formity of sentences and uniform to dismissal of officers go auto­ interpretation. Our present sys­ matically to the Judicial Council tem is working well in the Army, created by the Kem amendment and as far as I know, in the Air for confirming action. Other cases Force. It can be extended, with where either The Judge Advocate modification perhaps, to · fit the General or the Board of Review needs of the other services. It pre­ believes that confirming action serves to each service the control should be taken in the interest of of individual cases within the serv­ justice may also be referred to the ice. I recommend that our system military Judicial Council. The be preserved. In order to provide case load is sufficient to keep the for uniformity of sentences and of The JUDGE ADVOCATE JOURNAL 47 interpretation I would :suggest that the administration of military jus­ there be established in the Nation­ tice made since 1920. Finally, by al Military Establishment a mili­ retaining the military judicial tary ·Court of Military Appeals council created by the Kem amend­ composed of The Judge Advocate ment it would provide a career Generals of the services. Their incentive which will attract able function, together with a civilian lawyers to the military service to advisory body, should be to rec­ perform the many functions which ommend uniform policies of pun­ the bill requires. . ishment and improvements in the There are other provisions of the administration of military justice. proposed code with which I cannot To provide for uniformity of in­ concur. The right against self­ terpretation, each Judge Advocate incrimination provided by the code General should be empowered to (Art. 31) abridges the right which certify any case for legal deter­ persons subject to military law mination by the entire Court of now have under Article of War Military Appeals whenever uni­ 24; provision is made in Article form legal interpretation is re­ of War 43 for virtually doing quired. away with the statute of limita­ The proposal I make would pre­ tions; many of the punitive ar­ serve the advantage of completely ticles are inartfully drawn. With automatic appellate review for all respect to the punitive articles the cases of the same class-which is House committee has corrected a perhaps the most important right few of the glaring errors by of an accused in the military serv­ amending Article 77 .(Principals) ice and which is not accorded ,him and Article 119 (Manslaughter­ by civil jurisdictions. It also pre­ but larceny (Art. 121) and rob­ serves 0to all appellate agencies the bery still require careful consid­ power to weigh evidence and deter­ eration. With_ your permission I mine controverted questions.. of should like to submit an analysis fact which are powers not gener­ of my objections ·and to submit ally exercised by civil appellate for your consideration pertinent courts and which afford to an ac­ amendments. I again wish to tell cused person rights which no other you that I appreciate the opportu­ judicial system does. It would nity to present my views. I thank preserve the significant reforms in you.

We are presently undertaking to compile a new "Directory of Mem­ bers" to include new members and corrections in addresses. It is ex­ tremely important to the success of any directory that the addresses contained are correct. You are strongly urged to advise us of your correct address if there is any error in the address under which we are carrying you indicated on the envelope containing your copy of the Journal. If you know of members who are complaining of not receiving material from the Association, pass this word on to them and perhaps a "Change of Address Notice" will correct this situation. ALASKA as Assistant Staff J .A. of the SOth Lt. Col. Franklin W. Clarke, Inf. Div., formed a law partner­ S.J.A., Headquarters, U. S. Army, ship for general practice with his Alaska, advises that both the father, under the firm name "Todd Army and Air Force Alaskan and Todd." Commands have been conducting Stockton-Major Edwin Mayall, schools on the new military jus­ 7th OFF who was Staff J.A. of the tice system and that the changes Second Armored Division, re­ brought on by the "Manual for turned from Germany in 1946 and Courts Martial," 1949 have been has resumed private practice. effected very smoothly and with Major James DeMartini who good results. Col. Clarke is ex­ served as a J .A. in the Aleutian pecting to return to the Z.I. in Islands and who formerly prac­ September. He has recently re­ ticed law in San Francisco, has ceived in his office 1st Lt. E. M. become a partner in the Stockton Chandler, member of the Bar of Law Firm, Mazzera, Snyder & De­ Tennessee, formerly assigned to Martini. Hq., Sixth Army. Capt. Joseph J. Chico-Capt. Jean Morony, 6th Crimmins of his office was recently OCS at Ann Arbor after his sepa­ promoted to the rank of Major. ration from the service in 1946 re­ CALIFORNIA turned to Chico and formed a law Lt. Col. James P. Brice, JAGC­ partnership with Grayson Price Res., reports the establishment of under the firm name, "Price and a very active J A organization in Morony." He says: "If any Jags Los Angeles composed of approx­ pass through this part of the coun­ imately twenty · members. Their try, I certainly hope they will drop local organization met on March 31 in and say hello." in response to the Association's re­ Capt. Matthew Marsh, 6th OCS cent questionnaire on the "Uni­ at Ann Arbor is back in private form Code of Military Justice" and practice and is counsel for the Dia­ very effectively conducted full dis­ mond Match Corporation which cussion, study and report on the operates a large plant in Chico. results. More important still, he has be­ Col. Charles Richardson, Jr., come the proud "papa" of a fine State Chairman for California, re­ baby boy. ports from Carmel on many per­ Santa Monica-Lt. Col. Richard sons from many places: K. Gandy formerly District Judge San Francisco-Captain Henry C. Advocate, Central District, A.T. Todd, 11th OFF who served S.C. for which he received the Le­ through the European Campaign gion of Merit is back in private The JUDGE ADVOCATE JOURNAL . 49 practice. He is presently serving and to answer on oath whether as a member of the Military Jus­ they advocate the overthrow of tice Committee of the American the Government by force. Bar Association.. Maj. John M. Davenport who was formerly associated with Col. Arcadia-Capt. David T. Sweet, Karr in general practice, is now 10th OFF was appointed City associated with the law firm, "New­ Judge of Arcadia in October of lin, Holley, Sandmeyer, & Tacka­ 194 7 and has been doing consider­ bury" in general practice. able informal speaking to service Lt. Col. Brenton L. Metzler, 8th clubs and organizations about the OFF, formerly an assistant trial War Crimes Trials in Japan. attorney before the War Depart­ Los Angeles-Lt. Col. George W. ment Board of Contract Appeals, Tackabury, 6th OFF who was and later served at the Presidio of Chief of the Reservation Division San Francisco as representative of of the Judge Advocate General's the tax division JAGO for the Office and active in plant seizures western states, is now in general for the Army, has, since separa­ practice as a partner of the law tion from the service, become a firm of "Lawler, Felix & Hall," partner of the law firm, "Newlin, Standard Oil Building, Los An­ Sandmeyer & Tackabury." geles. Lt. Col. Randolph Karr was re­ Maj. Robert W. Anderson has cently elected President of the Los been appointed Deputy City At­ Angeles Electric Club, which is an torney in the Los Angeles City active organization composed of Attorney's Office and is doing a several hundred prominent repre­ splendid job there. sentatives of the electrical indus­ try. OTHER STATES Lt. Col. Gerald G. Kelly, 13th OHIO OFF, formerly Ninth Service Com­ Pomeroy-Lt. Col. Cedric Clark, mand J .A. and Service Command 11th OFF, formerly Judge of the J.A. at the Presidio of San Fran­ Court of Common Pleas and Staff cisco, is a Deputy County Coun­ Judge Advocate at Camp Roberts, sel of Los Angeles County. He has Califiornia, is now back in private been conducting the prosecution of practice at Pomeroy. many important cases and recently brought to a successful conclusion NEVADA a test case titled "Steiner vs. Las Vegas-Lt. Col. Frank Mc­ Darby" involving the legality of Namee, 8th OFF, is now Judge of requirement by the County Board the Eighth Judicial District of of Supervisors that officers and Nevada at Las Vegas. He visits employees under its jurisdiction to Los · Angeles frequently and re­ take an oath of allegiance to the news his associations with Jags State and Federal Constitutions there. 50 The JUDGE ADVOCATE JOURNAL DISTRICT OF COLUMBIA present procedural changes in the Col. Berryman Green, former trial of General Court Martial Chief of the Tax Division of the Cases under the Manual for Courts Judge Advocate General's Office Martial, 1949. The moot trial was and now a member of the Tax presented in the Department of Division of the Department of Jus­ Interior auditorium to a capacity tice argued a case in the District house of reserve officers of the Mil­ Court of Appeal at Los Angeles itary District of Washington. in January, 1949 involving the Majors Paul Davis, James Bist­ right of the county to tax as sol­ line and Richard H. Love prepared vent credits, funds advanced by the scenario and leading roles the Federal Government to con­ were: President of the Court, CoJ. tractors and held in restricted McMurray; Law Member, Major .bank accounts. He obtained judg­ Bistline; Accused, Lt. Col. Fields; ment upholding the Government's T.J.A., Major Davis; Defense position. Counsel, Major Love; Individual Members of the Association in Counsel, Col. Gaguine. the Washington area have con­ FLORIDA ducted monthly dinner meetings Capt. Alfred M. Franklin of during the past year in concert Miami, Florida, has joined the firm with the J.A. Chapter, ROA, D. C. of "Blackwell, Walker and Gray" These meetings have provided an with offices in the First Federal ,excellent forum for discussion of Building. .the Uniform Code of Military Jus­ INDIANA tice and have been well attended Vern W. Ruble, State Chairman by the members, active duty per­ for Indiana, has been taking active sonnel of the Services, professional steps toward the organization of advisers of the Secretary of De­ the Indiana members of the As­ fense and Congress and members sociation with the view of con­ of both Houses of Congress. ducting local programs as an in­ Major Richard II. Love an­ cident of Annual State Bar Con­ nounces the removal of his law ventions. The Indiana JAG's will offices from the Woodward Build­ meet at Richmond on July 9th. ing to the Denrike Building, 1010 KANSAS Vermont Avenue, N.W., Washing­ John C. McCall, State Chairman, ton 5, D. C. called a meeting of the Kansas Col. Oliver Gasch has been re­ Jags at the May meeting of the cently elected to the presidency of State Bar Association at Topeka. the D. C. J.A. Chapter, ROA, for 21 members of the Association the year 1949-50. were present at the banquet-meet­ The 2913 J .A. Trng. Gp. com­ ing. This will be an annual event manded by Col. F. B. Wiener re­ hereafter and 1950 plans for a cently staged a production "Mur­ meeting at Wichita are in the der on the Yukon'' to dramatically hands of Judge Wm. J. Wertz. The JUDGE ADVOCATE JOURNAL 51 Max Hall has resumed practice Club of Minneapolis and is a mem­ at Anthony, Kansas. ber of the firm of "Stinchfield, KENTUCKY Mackall, Crounse & Moore" in Ben T. Cooper, Benton, Ky., is Minneapolis. Assistant U. S. Attorney for the MISSOURI Western District of Kentucky. Maj. Omer H. Avery, from Troy, C. C. Wilson is practicing law wishes to be remembered to the at Glasgow, Ky. members of the 5th officers class John A. Keck, Sandy Hook, is and the staff of the first class at now Commissioner of the Ken­ Ann Arbor. tucky State Highway Department. NEW JERSEY Kentucky State Chairman of the · Col. Frank A. Verga, State J.A. Association is Martin R. Chairman from Jersey City, re­ Glenn, who practices law in Louis­ ports: ville (Suite 1912-24 Kentucky Col. Frank Berry, JAG Reserve, Home Life Building). Glenn is is practicing law in Toms River, also President of the Louisville New Jersey, and since he returned Chapter of the Reserve Officers to private practice, has been ap­ Association. pointed Assistant Attorney Gen­ William D. Becker, Louisville, eral of New Jersey. is Juvenile Judge of Jefferson Col. Frel Hauser, since his re­ County and Commander of the turn to private practice in Hobo­ Louisville Chapter of the Military ken, New Jersey, has been ap­ Order of World Wars. pointed to the State Legislature Francis P. Hargett is City Pros­ of our State where he is serving ecutor at Maysville, Ky. with honor and distinction. He is Clifton J. Waddill is engaged in rendering every effort to have a practice at Madisonville, Ky. State bonus passed. MINNESOTA Col. Isadore Hornstein is now Leslie L. Anderson has been re­ practicing law in Jersey City, and cently appointed by the Supreme since his return to private practice Court of Minnesota to serve as in 1946, he has had two 60 day Chairman of the State Bar Review tours of duty in the Judge Advocate Panel. He has also been appointed Office Headquarters, 1st Army. by Gov. Youngdahl as head of the NEVADA Governor's Citizen Mental Health Col. Ciel Georgetta, State Chair­ Committee for the improvement of man engaged in practice in Reno, conditions in State mental hos­ reports that Richard R. Hanna is pitals. Anderson has been largely engaged in practice at Carson responsible for the Governor's in­ City, that Ryland G. Taylor is a terest in this project and the re­ member of the firm of "Taylor and sults of the Committee's work have Gubler" practicing at Las Vegas, been credible. Mr. Anderson is and that Gordon W. Rice is a mem­ President of the Commonwealth ber of the firm of Rice and 52 The JUDGE ADVOCATE JOURNAL He was recently elected to hon­ orary membership in Phi Beta Streeter engaged in practice at Kappa. Capt. Laughlin is serving Reno. Frank McNamee, Jr., is the as Associate Professor of Law at Judge of the Eighth Judicial Dis­ Washington and Lee. Col. Light trict at Las Vegas. and Capt. Laughlin are active NEW YORK members in the 2303d Military Norman Roth recently announced Government Training Group at the formation of the law partner­ Lexington. Col. Joe T. Mizell is ship of Olcott & Jackson of which engaged in practice at Richmond, he is a member. The firm has Col. D. Gardner Tyler is Assistant offices in New York City. Attorney General assigned to the Col. David George Paston has Division of Motor Vehicles, Capt. recently reopened his law offices at William S. Moffett, Jr., 20th OC, 220 Broadway, New York City. is engaged in practice at Staunton. NORTH DAKOTA Rudolph Bumgardner, Jr., is also Everett E. Palmer, State Chair­ engaged in private practice at man, has been elected President of Staunton and is Group Com­ the North Dakota State Elks As­ mander of the 2304th Military sociation. Palmer is engaged in Government T r a i n i n g Group. general practice and is the City Capt. Earl W. Wingo is Assistant Attorney of Williston. to the Commonwealth Attorney at TENNESSEE Lynchburg and is Assistant S.J.A. Col. Benjamin Axleroad has re­ of the 2399th Infantry Training opened his law offices at Win­ Division-ORC. Douglas A. Rob­ chester, Tennessee. ertson is the S.J.A. of that train­ VIRGINIA ing division and has resumed the Col. Charles P. Light, Jr., is practice of law with his firm, "Wil­ Professor of Law at Washington liams, Robertson and Sackett'' at and Lee University Law School. Lynchberg.

ANNUAL MEETING AT ST. LOUIS The annual meeting of the As­ concerning travel and accomoda­ sociation will be held coincident tions has no doubt come to your with that of the American Bar attention through the American Association, which is to meet at Bar Association's releases and will St. Louis, Missouri, in September. be more fully covered in the July Our program will be very similar issue of the "American Bar J our­ to that followed in former years. nal." It will be helpful to the Con­ Details as to the exact dates of the vention Committee, of which Maj. social function and business meet~ Philip A. Maxeiner, 408 Olive St., ing will be published in the near St. Louis, Mo., is Chairman, if you future. The period, however, to be will indicate your tentative plans kept in mind for St. Louis is Sep­ on the post card enclosed with ---·tember 5th-­ to 8th. In1ormat10n - your copy of the "Journal."