JUDGE ADVOCATES ASSOCIATION Officers for 1956-1957
NICHOLAS E. ALLEN, Maryland-···············································-·-····.President Tao, tAS H. KING, Maryland ...... ,- ...... First Vice President FREDERICK BERNAYS WIENER, Maryland ...... Second Vice President J. FIELDI. ·a JONES, Te.'Cas ...... _...... Secretatif EDWARD !<'. GALLAGHER, D. C...... _...... Treasurer JOSEPH F. O'CONNELL, JR., Massachusetts ...... Delegata to A. B. A. Directors Louis F. Alyea, Va.; Joseph A. Avery, Va.; Ralph G. Boyd, Mass.; John J. Brandlfo, Calif.; E. M. Brannon, D. C.; Robert G. Burke, N. Y.; Eugene M. Caffey, N. Mex.; John E. Curry, D. C.; Osmer C. Fitts, Vt.; Abe McGregor Goff, Idaho; Reginald C. Harmon, D. C.; Edward F. Huber, N. Y.; William J. Hughes, Jr., D. C.; Stanley W. Jones, Va.; Albert M. Kuhfeld, D. C.; Michael L. Looney, D. C.; Wil liam C. Mott, D. C.; Allen W. Rigsby, Nebr.; Gordon Simpson, Tex.; S. B. D. Wuod, Pa.; Clarence L. Yancey, La.; Edward H. Young, D. C. Executive Secretary and Editor RICHARD H. LOVE Washington, D. C. Bulletin No. 24 March, 1957
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 Presentation of Plaque in Memory of Judge Brosman...... 1 Comparison of Safe!plards in Civilian and Military Tribunals...... 5 General Cafl'ey Retires...... _...... 21 Incentive Pay for Lawyers in the Armed Forces?...... 22 JAA Resolution to Support Legislation for Betterment of Military Career ·····-··········· ...... 23 Teamwork by the Provost Marshal and the Judge Advocate...... 25 General Harmon Receives D. S. M--··········-·-························-················ 33 Recent Decisions of C. M. A·-····································-··············-·····-······ 35 General Hiclonan Named TJAG-Arrny...... ·-···········-······························· 42 General Jones Named Army Assistant TJAG.•..... ·-··········-······-··········· 43 Annual Meetings, 1957-New York and London.·-·························· 46 Supreme Court Reconsiders Military Jurisdiction Over Civilians...... 47 What the Members are Doing ·································································-· 48 Supplement to Directory of .l\Iembers ...... -...... 53
Published by the Judge Advocates Association, an affiliated organ ization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force. Denrike Building, Washington 5, D. C. - STerling 3-5858 Proceedings in the United States Court of Military Appeals ON THE OCCASION OF THE PRESENTATION OF A PLAQUE IN MEl\iORY OF JUDGE PAUL W. BROSMAN 25 FEBRUARY 1957
CHIEF JUDGE QUINN: The ued counsellors and enthusiastic Court will recognize Colonel Nicho members. His passing has left a las E. Allen. void in our ranks, but the inspiring COL. ALLEN: Chief Judge Quinn, influence of his presence among us Judge Latimer, Judge Ferguson, remains indelibly impressed upon judges of the Circuit Court of Ap our minds and memories. peals for the District of Columbia Our purpose in presenting this Circuit, judges of the United States plaque in honor of Judge Brosman District Court of the District of Co is to record for posterity the deep lumbia, other members of the judi sentiments we hold for him, but it ciary, officials of the District of Co would be impossible also to engrave lumbia, the Government, ladies and here the full record of his many gentlemen, the Judge Advocates As great and brilliant accomplishments. sociation is grateful to the United Indeed, the achievements he attained, States Court of Military Appeals for his contributions to the decisions and the privilege which is a~corded us opinions of this Court during its today to present to the Court a formative years, the wisdom and bronze plaque in honor of our de ideals he imparted to students of the parted friend and associate Paul W. law while serving as teacher· und Brosman who was also one of the dean of one of our country's great original members of this Court. law. schools, the high professional The presentation of thP. plaque is standing of Judge Advocate services the culmination of a widespread de to which he contributed so much in sire on the part of our mrmbership the turbulent years during and fol to do honor to Judge Brosman who lowing the second World War, and was at once our dear and intimate last, but not least, the great host of friend and also one of our most devoted friends he left behind him distinguished members. One 0f the and .to all of whom by his contagi founders of our association, he also ous enthusiasm and high ideals he served as a director and officer, and left someth1ng of himself-all of he remained one of our most val these are now a part of the main 1
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stream of our national life and his It is fitting, therefore, that we, tory; they are surely immutable evi his fellow members of the Judge dence of the immortality of his noble Advocates Association, should offer soul. this bronze plaque to record in his A student of law in Illinois, his honor and memory, our devotion, native state, teacher of law at Mer love and respect for Paul W. Bros cer University in Georgia and at man, and our gratitude for the priv Yale Law School, and teacher and ilege of having shared with him dean of the Law School at Tulane some of the experiences in his event University, it can truly be said that ful and distinguished career. he was dedicated to the law and to I shall now ask the officers and the sublime precepts of our demo directors of the Judge Advocates cratic way of life. His skill in the Association to stand with me while law and his talents as an adminis Mr. Richard Love, the Executive trator, developed through these many Secretary, and Colonel Thomas H. years of service in the field of legal King, First Vice President of our education, equipped him admirably Association and Chairman of the to play an important role in the Committee on Arrangements for this establishment 0f Judge Advocate occasion, come forward and unveil i:erv1ces in the Army Air Corps and the plaque. l~ter in the Judge Advocate Gen (Unveiling) eral's Department of the United States Air Force. His high ideals, CHIEF JUDGE QUINN: Colonel his innate fairness, his genuine in Allen and members of the Judge terest in his fellow man, and his Advocates Associat10n, distinguished fine judicial temperament, combined members of the Court of Appeals, with his broad background and ex and of the District Court for the perience, qualified him exceptionally District of Columbia, the Municipal well for service on this Court. It and District Government, distin was here that his talents flourished gui&hed Generals and other friends in their fullest measure, and that of Judge Paul W. Brosman, the his career reached its greatest Court is very happy to welcome you heights. here at this ceremony and to thank Patriot, teacher of the law, and the Judge Advvcates Association for Judge of our country's highest court its thoughtfulness in pre<;c~r.t:ng thi.~ of military justice-thrne are mea<: plaque to our Court. ures of his greatness. But it is as Everyone in this re.om is aware a friend and close associate that we that Judge Paul \V Brosma•.t, one who knew him well are apt to re of the original members of our member him best, for he was en Court, was a keen, able, legal dowed to a greater degree than most scholar. He was a devoted husband men with those qualities that make and father. He had a host of for true and lasting friendship-his friends, was a fair and impartial warmth, enthusiasm, honesty, humil Judge, and he generated affection ity, integrity, and sincerity. among the thousands of men and ' The Judge Advocate Journal women that were privileged to call cates your personal loss in his un him friend. timely death. And so we think that this after I am sure that you all join with noon, Colonel Allen and members of me in thanking the Judge Advocates the Judge Advocates ·Association. Association for presenting this that it is very fitting that this plaque because, in addition to the plaque should be presented to this words that he has written which are Court to be here in perpetual mem found in our reports, it is very nice ory of Judge Brosman where his to have this memorial in the halls of record to a certain extent inscribed this Court. in eternal bronze will be given an CHIEF JUDGE QUINN: Judge appropriate spot in this Court. Ferguson? Judge Latimer? JUDGE FERGUSON: Chief Judge JUDGE LATIMER: Chief Judge Quinn, Judge Latimer, and friends Quinn, ladies, judges of the Court of the former Judge Brosman. I of Appeals and the District Court didn't have the privilege of knowing of the District of Columbia and the Judge while he occupied the po members of the Judge Advocates sition on this bench, but as his suc Association. I hardly expected to be cessor I have had the opportunity to called on to make a respnnse, but I hear from his many friends the trib am certainly pleased to dn so. utes they have paid to him as a I became acquainted with Paul Judge on this Court, and I have had Brosman when we were first ap the opportunity and privilege of pointed to this Court. We lived next reading his decisfons as precedents door to each other, he was very close to the decisions that we are render to me, and our families were inti ing daily here in this Court. mate. In observing his work on the I have the highest regard for his bench, I was impressed with the fact legal opinions and his work on the that he was an indefat!gable work Court and I think it is very fitting er, a stylistic writer, and a judge for his friends, those who we;:~ asso whose judgm~nt was sound. He al ciated with him, to put this plaque ways performed his tasks in an out here as a memento of their respect standing manne:;.-, and he was a per to perpetuate his memory. I am sure son who I believe will leave a p:ro that for those who are unfortunate found mark in the halls of mi~itary enough not to have read those deci justice, and in the very vital work sions as precedents this will be a of the Judge Advocates Association. reminder of the great work he has He left a void in my life. He was done. a very fine man, and he will always CHIEF JUDGE QUINN: Thank be remembered by his friends as you. such. I am sure he has left his If there is no other business to friendly imprint on those closely as come before the Court we will ad sociated with him, and it is my firm journ until tomorrow morning at belief that your presence here indi ten o'clock. A COMPARISON OF SAFEGUARDS IN CIVILIAN AND MILITARY TRIBUNALS· By Lieutenant Colonel Waldemar A. Solf **
The last term of the Supreme sustained court-martial jurisdiction Court opened with the opinion in over civilians accompanying and Toth v. Quwrles 1 written by Mr. serving with the armed forces -out Justice Black in which the provi side the United States. Mr. Justice sions of Article 3a of the Code Clark, speaking for the court, char were declared unconstitutional in- so acterized the Uniform Code in these far as it sought to make civilians words: who were former servicemen amena "In addition to the fundamentals ble to trial by court-martial for seri of due process, it includes protec ous offenses committed while they tions which this court has not re were still in the service. This, in quired a state to provide ant! some the judgment of the Supreme Court, procedures which would compare was an encroachment on the juris fav-orably with the most advanced diction of the Federal Courts. Mr. criminal codes." Justice Black said: "Any expansion of court-martial Our purpose here is to attempt an jurisdiction necessarily encroaches analysis of these two propositions and determine whether, or -on the jurisdiction of the federal to to courts set up under Article III what extent, the serviceman enjoys of the Constitution where persons the rights which our society has pro on trial are surrounded with more vided for its citizens. The problem · constitutional safeguards than in has considerable impact on the na military tribunals." tion as a wh-ole when we reflect on the magnitude of Military Justice. The same term of the Supreme During the height of the mobiliza Court ended with Kinsella v. Krue tion of World War II, the armed ger.2 Here the majority of" the court forces handled 1/3 of the nation's
*Based on an address made at the School of Naval Justice, Newport, Rhode Island, in August 1956. The views contained herein are those of the writer and do not necessarily represent the -opinion or doctrine of the Department of the Army or any other governmental agency. **Director; Academic Department, The Judge Advocate General's School, U.S. Army.
1 Toth v. Quarles, 350 U.S. 11 (1955). 2 Kinsella v. Krueger, 351 U.S. 470 (1956); rehearing granted, 352 U.S. 901 (5 Nov. 1956). 5 6 The Judge Advocate Journal crime potential and they tried 1/3 are not offenses in a civilian society of all criminal cases involving United become serious offenses in military States nationals. The remaining 2/3 law. Take the business of telling were divided among the several off the boss. It is an inalienable states and the Federal Government.a right of any American civilian Having on our hands 1/3 of the subject of course to becoming un nation's criminal potential created employed. In 'military law, this be vast problems of command. But comes an offense with much more what servicemen, their parents and painful consequences. A civilian has families, and their representatives the right to quit his job. In the in Congress want to know is whether armed forces such conduct is deser there is any truth in the statement tion. A civilian who does not like that "when a person enters the mili his pay or working conditions may tary service, he gives up many of join with others and go on strike. his constitutional rights." In the armed forces this kind of ac As military lawyers, we know that tion is mutiny. there is a fundamental difference be Such rights involving individual tween an armed force and a civilian freedom of choice are given up by society. This difference is reflected a person when he takes the oath of in the law governing them. enlistment. But when he falls into The purpose of law in a civilian the toils of the court-martial system, society is to insure that veople live does he lose any of his rights to due together in peace and reasonable process or any of the traditional happiness consistent with the safety Anglo - American procedural safe of all. The object of an armed force guards? is to fight and win wars. The ob At the outset, let me say that ject of its law is to insure that it there is no need to dwell long on operates as a team under the com the argument which has enriched mand of its leader. Thus the law of military legal literature as to the armed for~es must furthel" dis whether the safeguards guaranteed cipline in a positive sense, whereas by the Bill of Rights, as such, are basically the criminal law of a civ applicable to courts-martial. Cer ilian society is intended to prevent tainly the older Supreme Court the members of the society fr.'.)m in cases: Dynes v. Hoover,4 Ex parte juring each other. Discipliue means Milligan,5 and Carter v. McClaugh that certain rights are given up ry 6 were unequivocal in stating that when a person becomes a soldier, the power conferred on Congress to sailor, or airman. Some acts which make rules for the Govern,nent and
3 Karlen and Pepper, The Scope of Military Justice, 43 The Journal of Criminal Law, Criminology, and Police Science 285 (1952). 4 Dynes v. Hoover, 20 How (61 U.S.) 65 (1858).
5 Ex parte Milligan, 4 Wall (71 U.S.) 2 (1867).
6 Carter v. McClaughry, 183 U.S. 365 (1902). The Judge Advocate Journal 7
regulations of the land and Naval Searches & Seizures forces was not limited by the Fifth The Fourth Amendment provides and Sixth, or any other, Amendment. that the people shall be secure in The more modern view expressed by their persons, houses, papers, and all but one judge in Burns v. Wil effects against unreasonable searches son 7 is that the constitutienal guar and seizures. antee of due process is p1eaningful Congress has not legislated di and sufficiently adaptable to protect rectly in this respect, but in Article servicemen as well as civilians. 36 it has laid down the general pol This question, generally speaking, icy that the President's regulations is moot or at least academic for as governing courts-martial shall, so far the Supreme Court pointed out in as he deems practicable, apply th<' Burns V. Wilson and in its most re principles of law and the rules of cent case, Kin·sella v. Krueger, Con evidence generally recognized in the gress has not been remiss in exer trial of criminal cases in the U. S. cising its power to establish a mili District courts provided, of course, tary legal system, to provide not that these regulations are T1()t con only for the fundamentals of due trary to, or inconsistent with, the · process, but to include protections Code. which the Supreme Court has not In Federal courts, the prov1s10ns required a state to provide, and some of the Fourth Amendment relative procedures which would compare fa to unlawful searches are enforced by vorably with most advanced crim the simple expedient of excluding inal codes. any evidence which is obtained as a result of an illegal search. In other words, the issue as to whether most constitutional safe The same general procedure is guards are applicable to courts-mar prescribed by the President in Par. 152 of the Manual. Although a war tial under the constitution itself rant is not a prerequisite to a law cannot be reached by the courts be ful search, the President has pre cause Congress, in the Uniform Code, scribed procedures looking to reason has provided at least an equivalent ableness of searches. Under. most which must be considered before any circumstances, the order of a com Constitutional issue can be consid ma.nding officer for a search is a ered.S prerequisite to a legal search. The Let us analyze this proposition so exclusion of evidence obtain<>d as a far as time permits: result of an unlawful search, pro
7 Burns v. Wilson, 346 U.S. 137 and 844 (1953). s For an excellent analysis of Service Safeguards see Edwards and Decker, The Service Man and the Law, The Military Service Publishing Co., Chapter 5. For a comparison 'Of Federal Civilian and Military Pro cedure, see Latimer, A Comparative Analy'sis of Federal and Military Criminal Procedure, 29 Temple Law Quarterly 1, ( 1955). 8 The Judge Advocate Journal vided by the President, places the stitution realized that convening person subject to military law on grand juries consisting of 24 mem the same footing as the civilian tried bers of a military force to investi in a Federal court. He is much bet gate serious offenses would unduly ter protected than the civilian tried interfere with military operations. in many state courts for the Su Congress, however, has provided for, preme court has held that state and required, an impartial pretrial courts are not required by the 14th investigation as a prerequisite to Amendment to exclude evidence ob trial of any offense tried by gen tained as a result of an illegal eral court-martial. The incider.ts of search,9 the military pretrial investigation Right To Indictment accord the military accused consider ably more safeguards and privileges Let us turn our attention to the than his civilian counterpart enjoys. Fifth Amendment. First of all, the As a general rule, the scope of a Fifth Amendment provides that "no grand jury's inquiry is limited to person shall be held to answer for the inquiry whether there is prima a capital or otherwise infamous facie evidence that a crime has been crime unless on a presentment or committed and whether the defend indictment of a grand jury, except ant is the person who has committed in cases arising in the land or naval the crime. On the other hand, the forces, or in the militia when in investigating officer is charge 9 Wolf v. Colorado, 338 U.S. 25 ( 1949). io UCMJ, Art 32; 10 USC 832. The Judge Advocate Journal 9 the defendant is sf'ldom present. In and the evidence considered by the deed, sometimes his first knowledge investigating officer. of the proceedings is when he is ar Compare this with the secret pro raigned on the indictment fcund by ceedings of a grand jury. The only the grand jury. In contrast with information the defendant gets con this secrecy-the military accused is cerning that proceeding is the bare, permitted to be present at the in cold indictment. vestigation and is given a full op In making this invidious compari portunity to cross-examine witnesses son, it would be unfair of me to against him and to present any mat neglect to mention one area where ter he desires-either in defense or civilian procedure appears to be ap mitigation. Unlike his civilian coun proaching that of the military. terpart, he has a right to be repre In U. S. v. Grunstein,11 the U. S. sented at the investigation by coun District Court for the District of sel. Such counsel may bP. a civilian New Jersey took a small step toward attorney if provided by the accused equalizing the right of the civilian at his own expense, or by military with those uf the military accused counsel of his own selection if rea by permitting discovery of the min sonably available, ur military coun utes of the grand jury. But this sel appointed by the officer exercis right of discovery was limited to ing general court-martial jurisdic the testimony of those witnesses only tion. If military counsel is used by who would definitely testify at a the accused such representation is trial of a civil suit arising out of without cost to him. the same transaction as that which Under Federal procedure a grand gave rise to the grand jury pro jury investigation is required only ceedings. Please note that this right in cases of felonies; that is an of uf discovery was expressly limited to fense for which the law provides civil actions. The criminal defend imprisonment for une year or more. ant is still in the dark as to what Again, the military accused has a happened in the grand jury room. more substantial safeguard since a formal investigation is required in Double Jeopardy any case where the court-martial has The Fifth Amendment provides jurisdiction to impose a sente'lce in that no person shall twice be put in volving confinement in excess of six jeopardy for the same offense. Ar months. ticle 44 gives persons subject to the Lastly, the military accused not Code the same right, but with addi only has the privilege uf observing tional safeguards. Take for example the whole proceedings, examinmg the the sad case of one Green. He was evidence, and cross-examining the indicted in the District of Columbia witnesses, but he also is furnished of first degree murder but he was a copy of the statement of witnesses convicted of second degree murder n U.S. v. Ben Grunstein & Co., 137 Fed Sup 197 (1955). 10 The Judge Advocate Journal only. He appealed and was for'"unate The military accused risks no such enough to obtain a reveri;al. But hazards. Under Article 63 he cannot upon a new trial he was less fortu be tried again for any offense or nate. He was found guilty of first part of any offense of which he was degree murder and was sentenced to found not guilty, and no sentence be hanged. In effect, the Court of more severe than that imposed at Appeals of the District of Columbia the first trial may be adjudged on said that he had asked for it.12 On a rehearing. In neither a military his way to the gallows, Green can court nor in a Federal court can the reflect on the glories of the system Government appeal from the findings of justice which will not permit him and sentence of a trial court. to serve a term of years because of The military accused enjoys one procedural errors, but which has no other right which his civilian coun objections to his hanging as a result terpart does not. A sentence to con of a fair trial. Green is not the first finement adjudged by a court-martial person who received a more severe begins to run on the date adjudged sentence on a second trial.13 and on a rehearing he receives One Frank Palko, who was tried credit for those portions of the sen by Connecticut was even less fortu tence previously served under the nate because he didn't ask for it. original sentence.15 Not so in the In his case, it was the state which case of the defendant in the Federal appealed from a finding of second court. He receives no credit on the degree murder and a life sentence service of the sentence until the pursuant to a Connecticut statute gates of the penitentiary clank shut which authorizes the state to appeal behind him as he enters to serve the in criminal cases. The state appealed particular sentence adjudged. on the ground that the trial court Certainly in the matter of the in erroneously excluded a confession cidents flowing from the former and limited the state with respect jeopardy prohibition, the military to certain impeaching testimony. On accused is much better off than his the new trial Palko was found guilty civilian counterpart. of first degree murder and sentenced to death. The United States Su Self-Incrimination preme Court found that there was The right against self-incrimina no deprivation of due process even tion enshrined in the Fifth Amend though the statute might enable ment is equally protected by Article Connecticut to appeal from an ac 31 of the Code, again with addi quittaJ.14 tional safeguards. If you watch 12 Green v. U.S., CA DC 236 F. 2d 708, 98 U.S. App. D.C. 413. 13 Trono v. U.S., 199 U.S. 521 (1905). 14 Palko v. Connecticut, 302 U.S. 319 ( 1937). 15 UCMJ, Art 57; 10 USC Sect. 857; MCM 1951, par 89c. The Judge Advocate Journal 11 "Your FBI" or "Dragnet" on your Adamson v. California, 17 illus TV sets, you may have to" wait a trates another facet of this safe long time before you notice the hero guard. Here the Supreme Court advising a suspect of his right to held that comment by a California remain silent concerning the offense prosecutor relative to the defend of which he is suspected. There is ant's silence at the trial does not no civilian requirement for such a violate due process. Of course, such warning, but-if a military investi comment is not permitted either by gator fails to warn a suspect, the Federal prosecutor or the trial coun resulting statement is just simply sel of a court-martial. not admissible in a military court Until January 1957, the Court of irrespective whether the suspect's Military Appeals, in common with statement is otherwise free from the Federal courts, had held that coercion or illegal inducement. oral compulsion to provide urine A striking illustration arose in the samples for chemical analysis to be recent case of Commonwealth v. used as evidence, did not violate the Beaulieu.16 In that case a marine right against self-incrimination.18 On was tried for murder by the Massa 4 January 1957, this line of decision chusetts authorities. The Common was expressly overruled by the Court wealth introduced a confession ob of Military Appeals. In U.S. v. Jor tained from Beaulieu in part under dan, the Court of Military Appeals the questioning of a Naval officer. held that the order of an officer to Beaulieu contended that the investi an airman to give a urine sample gators neglected to advise him of his for the purpuse of chemical analysis rights. The Supreme Judicial court for narcotics content amounted to an held that even if the statement had illegal order. Judge Ferguson, in a been obtained in violation of UCMJ, concurring opinion, distinguished this Article 31, it would still be admissi departure from usual civilian prac ble in Massachusetts courts because tice by pointing out that the protec there is no requirement that an ac tion afforded by Article 31a, "No cused be aware of his rights under person subject to the Cude may com Massachusetts law. The court went pel any person to incriminate him further and said: self * * *," is much broader than "Due process as used in the the language of the Fifth Amend Fourteenth Amendment does not ment which merely provides that require that a defendant be ex "No person * * * shall be compelled empted from compulsory self-in in any criminal case to be a witness crimination in the courts of a against himself, * * *." In Judge State." Ferguson's opinion protection in ~- -·-- ______J 16 Commonwealth v. Beaulieu (Mass), 133 NE 226 (1956). 11 Adamson v. California, 332 U.S. 46 (1947). 18 U.S. v. Williamson, 15 CMR 320 (1954); U.S. v. Barnaby, 17 CMR 63, (1954). 12 The Judge Advocate Journal military law is against the use of In U. S. v. Clay,21 one of the compulsion to gain from the accused earliest cases decided by the Court any form of incriminating evidence, of Military Appeals, the court cata whereas the Fifth Amendment pro logued and enumerated some of the tects citizens against the use of com rights and safeguards which make pulsion to obtain self-incriminating up military due process: communications only.19 (1) To be informed of the charges Due Process against him. We now come to due process. The (2) To be confronted by witnesses Fifth Amendment, of course, forbids testifying against him. the Federal Government to deprive (3) To cross-examine witnesses for any person of life, liberty, or prop the Government. erty without due process of law. The (4) To challenge members of the 14th Amendment imposes the same court for cause or peremptorily. limitation on the powers of the States. (5) To have a specified number of We have seen that the due process members compose general and clause has been held by the Supreme special courts-martial. Court to apply to courts-martial, but (6) To be represented by counsel. the Supreme Court has also indi cated that military due process is (7) Not to be compelled to incrimi not necessarily the same thir,g as nate himself. civilian due process. Thus, Mr. Jus (8) To have involuntary confes tice Frankfurter, in a separate opin fessions excluded from consid ion in Burns v. Wilson said: eration. "Congress in the exercise of its (9) To have the court instructed war power * * * is * * * not freed on the elements of offenses, the from the requirements of due proc presumption of innocence, and ess of the Fifth Amendment. But the burden of proof. there is no table of weights and (10) To be found guilty of an of measures for ascertaining what is fense only when a designated due process." number of members concur in In an earlier case, Reaves v. Ains the finding. worth,20 the Supreme Court said: (11) To be sentenced only when a "To those in the military or certain number of members naval service of the United States, vote in the affirmative. the military law is due process." (12) To have an appellate review. 19 U.S. v. Jordan, 7 USCMA 452, 4 Jan. 1957. 20 Reaves v. Ainsworth, 219 U.S. 296 (1911). 21 U.S. v. Clay, 1 CMR 75 (1951). 'fhe Judge Advocate Journal 13 To this list may be added: U.S. v. Jones,26 in which it held that (1) To have compulsory process to obtaining urine samples for analysis obtain defense witnesses.22 by catheterization over accused's ob jection amounts to police brutality (2) To have a speedy and public trial.23 and is a deprivation of due process. Again we see that the civilian's ( 3) To have every step in the proc rights against police brutality and essing of the case determined those of the serviceman are iden by officials who enjoy the free tical. dom to exercise their discretion without fear of outside infiu b. Right of appeal. ence.24 The Supreme Court has held that appeals are not essential to "due Time does not permit us to engage process" within the meaning of the in a microscopic comparison of Fed Fourteenth Amendment. There is no eral, State, and Military Due Proc provision of the Constitution which ess-but a few areas may require forbids a State to vest in one tri scrutiny. bunal the final judgment in criminal a. Protection against obtaining of cases. Appellate review m criminal evidence from the person of the ac cases is wholly within the discre cused by brutal means. tion of the State to allow or not to In Rochin v. Calif ornia,25 the Su allow.27 Nevertheless, in both Fed preme Court held that applying a eral and State courts, the right of stomach pump to a suspect in order appeal has been accorded by statute to force him to regurgitate nar under certain circumstances, usually cotics he had swallowed is police upon a specific assignment of error. brutality and amounts to a depriva vVith certain exceptions, unless the tion of due process under the Four defendant takes affirmative action to teenth Amendment. Note that the perfect an appeal, and an &ppeal is majority was most careful not to thereafter granted, there is no re bottom this on the right against view in a criminal case. Frequently, , self-incrimination. The Court of Mili whether a civilian case is reviewed tary Appeals has followed suit in depends on whether the defendant 22 UCMJ, Art 46; 10 USC Sect. 846. 23 U.S. v. Brown, 7 USCMA 251; 22 CMR 41 (1956). 24 U.S. v. Hawthorne, 7 USCMA 293; 22 CMR 83 (1956) . .25 Rochin v. California, 342 U.S. 165 (1952). 26 U.S. v. Jones, 18 CMR 161 (1955); see, however, U.S. v. Jordan, supra, wherein it appears that the distinction drawn by the Supreme Court be tween due process and the right against self incrimination is too subtle for the Chief Judge of the Court of Military Appeals. 27 McKane v. Durston, 153 U.S. 684 (1894); Reetz v. Michigan, 188 U.S. 505 (1903). The Judge Advocate Journal has the funds ·with which to defray If the military accused is sen the costs and attorneys fees. I need tenced to death, or if he happens not tell you that appeals are costly to be a general or a flag officer, he and this factor operates as a built gets three reviews automatically in deterrent against frivolous ap by the convening authority, by the peals. Board of Review, and, lastly, by the The military accused, however, re Court of Military Appeals. ceives more solicitous consideration. The right of appeals has incidents The Uniform Code of Military Jus seldom found in civilian appellate tice provides for a minimum of two procedure. The convening authority automatic reviews in every case tried and the Boards of Review have the by general court-martial or by a power to weigh the evidence, judge special court-martial involving a the credihility of witnesses, and de sentence to bad conduct discharge. termine controverted issues of law. The first of these reviews is by the Federal appellate courts have no Staff Judge Advocate to the conven such power-and only a few state ing authority and the second is in appellate courts have such power, the Office of The Judge Advocate and then oi1ly in capital cases. This General. is a tremendous advantage to the If the sentence extends to bad accused :..ierause a court without this conduct discharge or dishonorable power cannot reverse a judgment discharge, or to confinement for one simply because it does not believe year or more, automatically the rec the witnesses. If the record presents ord must be reviewed by a Board of a prima facie case and there is no Review in the Office of The Judge prejudicial error, the civilian courts Advocate General. At this proceed are usually powerless to reverse. On ing, as at the pretrial and trial the other hand, a military board of level, the accused may be represented review, like the original triers of the free of charge by counsel appointed facts, mnst be convinced of the ac for him by The Judge Advocate cused's guilt beyond a reasonable General or he may retain civilian doubt, although it will give consider counsel at his own expense. If the ation to the fact that the trial court Board of Review affirms, the accused heard and saw the witnesses. -assisted by counsel furnished by the Government-may petition the I'm sure I need not compare in Court of Military Appeals to review detail the right to counsel and the any assigned error of law. If that right to be informed of the charges court grants a review, the accused against an accused. These are mat may again be represented, without ters which you have studied in de cost, by appellate counsel furnished tail. by the Government. Again there are Public Trial no court costs, attorney,; fees, print ing bills, or any other expense With respect to the right to a usually associated with civilian ap public trial, on 17 August 1956 the pellate procedures. Court of Military Appeals held in The Judge Advocate Journal 15 U.S. v. Brown 28 that, except for se inal courts and of the people who curity reasons perhaps, it is a depri appear in them. On the other hand, vation of due process to exclude the because of the mobility of military public from a trial by court-martial. units and frequent movement of in dividuals in the military service as Right To Confrontation well as the hazard of casualties in The Sixth Amendment guarantees battle, the use of depositions is an to a defendant in all criminal cases essential adjunct of the administra the right to be confronted by the tion of military justice. witnesses against him, and of course Of course, the right to confronta the military accused has the same tion is not an absolute guarantee right. But now we are wandering that every item of testimony pre into a narrow area where the issue sented against a defendant will come of the applicability of the Sixth from the mouths of live witnesses Amendment, as such, may be liti who are subject to cross-examination gated. Some, very few perhaps, of and who face the accused in open the incidents of the right to con court. The Sixth Amendment has frontation as practiced in Federal been construed consistently to pre criminal procedure are not compati serve only those rights commonly ble with the mobile nature of mili recognized at the time of the adop tary organizations. I refer partic tion of the constitution-but not to ularly to depositions. These are not create new rights. Well recognized permitted at the instance of the exceptions to the right to confronta prosecution in Federal criminal tion, in existence at that time were cases. The Supreme Court has said preserved. of the right of confrontation in Thus, both military accused and the Sixth Amendment: civilian defendants may have used "It was intended to prevent con against them dying declarations,30 victions of accused upon deposi former testimony,31 official records tion or ex parte affidavits, and and business entries.32 These excep particularly to preserve the right tions to the right of confrontation of accused to test the recollection are historical and are considered to of witnesses in the exercise of the carry with them an oath substitute right to cross-examination." 29 based on experience that they a re generally trustwol'thy. This is reasonable in view of the Well, where do we stand on depo static nature of most cilivian crim sitions? Were they authorized prior 28 U.S. v. Brown, Op Cit. 29 Dowdell v. U.S., 221 U.S. 325 (1911). 30 Kirby v. U.S., 174 U.S. 47 (1909). 31 Mattox v. U.S., 156 U.S. 237, 240 (1895). 32 U.S. v. Leathers, 135 F 2d 507 (1943); 28 USC 1732, 1733. 16 The Judge Advocate Journal to the adoption of the Constitution present without manifest inconven in court-martial proceedings? The ience, don't keep him away. answer is "Yes"-but the Articles of Trial By An Impartial Jury War of 1775, 1776, and 1806 pro vided for the admissibility of depo The specific exception of the Fifth sitions only when taken in the pres Amendment relative to the require ence 'Of the accused. It was not until ments for grand jury indictment has 1874 when the presence of the ac been considered to apply, by implica cused was no longer required. tion, to the petit jury requirements The Court of Military Appeals of the Sixth Amendment.35 Never considered this matter in U.S. v. theless, Congress has prescribed that Sutton,33 and upheld the present the composition of special and gen practice on the basis of military eral courts-martial include many of necessity. In an earlier case, U.S. v. the incidents of the Anglo-American Deligero,34 a board of review wres jury system. The impartiality and tled more deeply with this problem. independence of court members is The present deposition practice was guaranteed by Article 37,36 and rig sustained on the basis that the Brit orously enforced by the appellate ish East India Act of 1775 author agencies established under the ized depositions to be taken outside Code.37 The military accused, like the presence of the accused. Consider his civilian counterpart, has a right ing certain activities held in Phila to challenge for cause any number delphia in 1776, it is doubtful of court members, although his right whether a 1775 act of Parliament is to exercise peremptory challenges is a good precedent. This, then, is one limited to one such challenge.38 of the areas where the issue of The enlisted accused, moreover, whether the Sixth Amendment, as has the right to have enlisted men such, is applicable may some day be participate as members of the court litigated. martial which tries him.39 If there is a moral to this story, The members of a court-martial, like it is this: If the accused can be the American jury, are the exclusive 33 U.S. v. Sutton, 11 CMR 220 (1953). 34 CM 329468 Deligero, 78 BR 43. 3? ?x pU!f"t.e Milligan, (4 Wall (U.S.) 123, 138, 193 (1867); Ex parte Quirin, 317 U.S. 1, 40, 45 (1942); DeWar v. Hunter, 170 F 2d 993, 997 (1948). 36 UCMJ, Art 37; 10 USC Sect. 837. 37CM 363294 Moses, 11 CMR 281 (1952); U.S. v. Allen, 18 CMR 250 (1955); U.S. v. Whitley, 19 CMR 82 (1955). 38 UCMJ, Art 41; 10 USC 831. 39 UCMJ, Art 25; 10 use 825. The Judge Advocate Journal 17 finders of fact. The final determina esty and sense of justice which tion of the weight of the evidence, nearly all of them undoubtedly the credibility 'Of witnesses, and the have, it still remains true that resolution of controverted issues of military tribunals have not been fact rest solely with the court-mar and probably never can be con tial. Like the jury, the court-martial stituted in such way that they undertakes its fact finding function can have the same kind of quali under appropriate instructions as to fications that the C'Onstitution has the elements of the offense (inclvd deemed essential to fair trials of ing lesser included offenses), the civilians in Federal courts. For presumption of :nnocence, an 40 UCMJ, Art 51; 10 USC 851; U.S. v. Clay, 1 CMR 74 (1951); U.S. v. Clark, 2 CMR 107; U.S. v. Hatchett, 9 CMR 112 (1953). 41 Toth v. Quarles, Op Cit. 18 The Judge Advocate Journal post, etc. But whether right or courts-martial, Boards of Review, wrong, the premise underlying the and the Court of Military Appeals constitutional method for determin because they are more independent. ing guilt or innocence in federal It may be conceded that military courts is that laymen are better personnel engagec'. in duties of law than specialists to perform this officer and members of boards of task. This idea is inherent in the review do not have life tenure with institution of trial by jury. respect to their judicial duties, but "Juries fairly chosen from dif they do have that te1,ute to which ferent walks of life bring iHto the their status as commissioned officers jury box a variety of different entitles them. As commissioned of experiences, feeling, intuitions, and ficers they take the same oath as habits. Such juries may reach do Federal judges to protect the completely different conclusions Constitution. In their judicial ca than would be reached by special pacity the law officers take an oath ists in any single field, including in each case to faithfully and im specialists in the military field. partially perform all duties incum On many occasions, fully known bent upon him as law officer.42 It to the founders of this country, is hardly conceivable that Mr. Jus jurors-plain people-have man tice Black considers that the moral fully stood up in defense of liberty obligations represented by the oath against the importunities of judges of office of a commissioned officer, and despite prevailing hysteria that of the military judge, or of the and prejudices. The acquittal of civilian members of the Court of William Penn is an illustrious ex Military Appeals is lightly consid ample. Unfortunately, instances ered by those who undertake that could also be cited where jurors obligation. have themselves betrayed the Moreover, Congress has gone far cause of justice by verdicts based to remove the suggestion of im on prejudice or pressures. In proper influence, and, from experi such circumstances, independent ence, I can assure you that military trial judges and independent ap courts are extremely jealous of their pellate judges have a most im independence. The safeguards against portant place under our constitu improper control of courts include tional plan since they have power and extend far beyond a fiat pro to set aside convictions. * * * " hibition against any censure or rep rimand of the personnel of courts.43 In other words, in Mr. Justice On the other hand, counsel who Black's view, Federal judges, Fed practice in Federal courts may have eral juries, and Federal appellate seen a Federal judge scold a jury for judges are superior to law officers, bringing in an unwarranted verdict. 42 MCM 1951, par 114. 43 UCMJ, Art 37; 10 USC Sect. 837. The Judge Advocate Journal 19 This cannot be done in a court they are the nominees of political martial. parties and run for office under the Be that as it may, relatively few label of those parties for relatively civilians are tried in Federal courts. short terms. Most criminal law is enforced by the The independence of the judiciary States, and a question raised by the in these latter states is indeed sub Toth case might be, "How does the ject to doubt. Psychologically, and judiciary of the several states com in some instances actually, some pare in independence with the mili state and municipal judges become tary judiciary"? beholden to the leaders of the po In 1832, Mississippi abolished life litical party which provided their tenure for its judges and provided places on the tickets.4T for their election by popular vote Former Governor Alfred E. Smith for a relatively short term. In 1846, once said: New York substituted popular elec tion for appointment of all New "In the long run [the elective York judges. Thereafter, this con system] means the selection of cept of Jacksonian Democracy has judges by political leaders and the spread to most states.44 Life tenure ratifkation of their selection by remains in Rhode Island, Massachu an electorate who are not really setts, and New Hampshire.45 In in a position to pass upon the some states, judges are selected for legal and other abilities of the varying terms either by the Gover individual." 48 nor or the legislature. In Missouri and California, judges are initially The disclosures of the Seabury In appointed by the Governor, and later vestigation of the magistrate court their reelection is submitted to the in New York City and those of the voters with no opponents on a sepa Senate Committee to investigate rate judicial ballot, the sole question crime in interstate commerce indi being whether their record justifies cate the extent to which some po their retention in office.46 In 36 litical leaders attempt to exercise states, however, judges are elected political influence on some state and by popular ballot and in 22 of these municipal judges.49 44 Election of military officers of militia units also became the vogue of that period. However, experience in the Civil War soon indicated the fal lacy of this method of selecting military officers. 45 Vanderbilt, Arthur T., Minimum StaruJ,ards of Judicial Administration. 46 Harris, The Selection of Judges; The Virtues of the Pennsylvania Plan, 41 American Bar Association Journal 142. 47 Ibid, p. 178. 48 Ibid. 49 Ibid, p. 143. 20 The Judge Advocate Journal Conclusion experience with military justice while in uniform. Perhaps, these same From the foregoing comparison it leaders of the bar are less tamiliar may be concluded that the present with the system of criminal justice court-martial system affords the ac in their own communities than they cused safeguards which are certainly are in the system of criminal justice equivalent to those enjoyed in Fed in the armed forces. eral courts and considerably superior to those afforded in many state and In a recent letter to the Com municipal courts. The periodic revi mandant of The Judge Advocate sions of the military justice system General's School, a well known writer have provided, in the words of Mr. in the practice of criminal law and Justice Clark, "procedures which crime detection 51 wrote: would compare favorably with the "In civilian life, the administra most advanced criminal codes."00 tion of justice is something of a Among the reasons why military compromise. I have frequently codes have been revised and im contended that the influential mem proved, both with the view of in bers of the bar whose practice is creasing efficiency and safeguarding largely devoted to the representa human rights, are the wholehearted tion of corporate cli;;,n Ls, handling dedication of the military lawyer business and probate law, etc., and the cooperative assistance "Of must devote more time and effort influential members of the bar. Some to a consideration of criminal law. of the nations foremost lawyers and Otherwise, the administration of legal scholars, including Dean Wig justice in the criminal courts will more, Mr. Justice Frankfurter, and be left to district attorneys on Professor Edmund Morgan, wE:re in the one hand, who a1·e inclined to uniform during the two world wars. become prosPcuticn minded and ifl The study, ideas, and recommenda time look on our constitutional tions of such men-and that of civ guarantees as a legal loophole, and ilian lawyers such as Chief Justice to professional defPnse attorneys Arthur T. Vanderbilt ·of New Jersey on the other, who are apt to be -gave impetus and inspiration to the interested only in <:;E>curing verdicts actions which led to the revision of of acquittal. the Articles of War in 1920 and 1948, "The armed forces are in a po and the enactment of the Uniform sition to blaze the trail in the Code of Military Justice in 1950. administration of criminal justice The military lawyer is grateful for by avoiding the pitfalls of legal the interest in military justice dis technicalities as such, yet insisting played by the leaders :>f the bar, upon proper safeguards and the many of whom have had first-hand correct interpretation of E::vidence." 50 Kinsella v. Krueger, Op Cit. 51 Erle Stanley Gardner. The Judge Advocate Journal 21 The armed forces are aware of the armed forces and its courts can their opportunity to blaze the trail be adapted to civilian practice with and have accepted the challenge. salutory results.52 Much that has been developed by 52 In Court's of Injustice (Twayne Publishers, N.Y.), 1956, p. 182, I. P. Callison quotes Dean Wigmore as declaring: "I am not here to defend military justice. It is civilian justice that is on the defensive. It has been on the defensive for a generation past. It has done very little in that generation to take up that defensive. It is doing very little now. Criminal justice does not even know what it wants, much less does it resolutely go in and get anything. "It maintains a substantive law which is a hodgepodge of inadequate and illogical definitions. It maintains a procedure which has not been revised for a century. It maintains a prosecuting personnel which is in large proportion crude and untrained and narrow-minded, and a defense personnel which is usually skilled only in evading the law. It maintains a judiciary personnel which seldom studies its larger prob lems and which seldom understands more than the elementary features of its duty. It maintains a police which in rural jurisdictions is often a match for Dogberry, the ancient Watchman, and in city jurisdictions is frequently undermined by politics and petty intrigue. And it organ izes all this personnel in a shiftless manner which would break down the efficiency of the ordinary business house in thirty days." General Caffey Retires Major General Eugene M. Caffey * 8tudy at the school make it not only retired as The Judge Advocate Gen one of the finest service schools, but eral of the Army on 30 December have earned for it as well the ac 1956 after a distinguished military creditation of the American Bar career that extended over a period Association's Committee on Legal of more than 38 years. General and Education. The school is conducted Mrs. Caffey have taken up residence in a new building designed and built at Las Cruces, New Mexico, where for the purpose on the University of the General will hang out his shin Virginia grounds adjacent to the gle as attorney at law. Law School. General Caffey's keen Notable among the accomplish interest in the school has been a ments of General Caffey's tenure as chief legal officer of the Army has prime mover in its development. been the development of The Judge The Caffeys are assured of the Advocate General's School at Char good wishes of their many friends lottesville, Virginia. The courses of in the Judge Advocates Association. * For a full and interesting account of General Caffey's military career, see the informal biography "The Army's New Judge Advocate General" by Frederick Bernays Wiener in 16 JAJ 1. 22 The Judge Advocate Journal Incentive Pay For Lawyers in the Armed Forces? In the present Congress, Senator yers with two to six years service Strom Thurmond of South Carolina would receive $150 per month; be and Honorable DeWitt Hyde, Con tween six and ten years service, $200 gressman of the Sixth District of per month, and for those lawyer Maryland, have introduced com officers with more than ten years panion bills designed to help the service, the incentive pay would be Services secure and retain the re $250 per month. quired number of fully qualified law Some indication of the need for yers to provide necessary legal serv legislation to enable the Services to ices in the military establishment. secure and retain in active duty, These bills are designated as S. qualified lawyers, was set forth in 1165 and HR 4786. the report of the Committee on the The effect of the proposed legisla Status of the Lawyer in the Armed tion would be to place lawyers in Forces published in the October is the same category of treatm"!nt ac sue of The Judge Advocate Journal corded other professions, such as, (23 JAJ 17). There it was observed medical doctors, dentists and veteri that although the implementation of narians presently serving in the the Uniform Cnde of Military Jus Armed Forces. The bills provide tice and other legal requirements had that the lawyer-officer would have substantia:Jy increased the need for three years service credit for pay qualified lawyers in the Armed Serv and promotion purposes to adjust for ices, the Services have been able to the three years delay in the start meet the need onlv by the use of of his military career occasioned by young law school graduates commis the time necessary to complete law sioned in the reserve as lawyers on 0 school education provided, of cours , condition of an obligated tour of ac the legal education was obtained tive duty. This source of young law before entry into the military serv yers has been kept productive only ice. They would also provide for an because of the general vulnerability accelerated promotion to foe grade of lawyers to the Selective Service of Captain, or equivalent, after the Law. The Committee pointed out the first anniversary of the date of ad mission to the bar. The most far result has been that the strength of reaching proposal is a provision for the uniformed law departments of special or incentive pay for lawyer the Services hM been maintained by officers. The pay provisions would a fine group of young lawyers hold provide that a judge advocate or ing the rank of Lieutenant, or equiv legal specialist officer with less than alent; but, none of these young of two years service would receive in ficers continue a military career be centive pay of $100 per month; law yond the duration of their obligated The Judge Advocate Journal 23 tours. With the older legal officers ciation will be represented at hear retiring and the younger lawyers ings on this legislation, it will be leaving the military service after extremely helpful if members of the only two or three years of duty, the Association and others interested will level of professional experience has write to the national headquarters declined in the face of expanding expressing their views as a guide to requirements. the Association's Legislative Com Since the Judge Advocates Assa mittee. JOIN A.B.A. The Judge Advocates Association A.B.A. now.* became an affiliated organization of It was the opinion of the govern the American Bar Association in ing body of the Judge Advocates September 1948. To preserve this Association in 1947, and that opinion status, it has been necessary that at still obtains, that the Judge Advo least 25% of Judge Advocates Asso cates Association as a national legal ciation members have membership in society of military lawyers can best the American Bar Association. Ac attain its purposes by its affiliation tually, more than 40% of J.A.A. with the American Bar Association members belong to the A.B.A. There and by working from within that is however a proposal being con organization's framework. sidered that would increase the pre You may make application for requisite of common membership to membership in the A.B.A. by ad 50% to maintain affiliated status. dressing your communication to the We have never inferred that J.A.A. American Bar Association, American members must belong to A.B.A. or Bar Center, 1155 East 60th Street, that membership in A.B. A. should be Chicago 37, Illinois. Annual dues are a prerequisite of joining the J.A.A. $16, but for those who have been at We do ~eel, however, that the A.B.A. the bar less than two years, $4 and has much to sell itself to every law if admitted to the bar more than yer and we, therefore, urge all mili two and less than five years, $8. If tary lawyers, and particularly those you will send your application who belong to the J.A.A., to con through this office, we will be happy sider the advantages of joining to endorse it as your sponsoL * For an article setting forth the achievements, activities, services and objectives of the American Bar Association, see "The American Bar Asso ciation'', 16 JAJ 22. The Judge Advocate Journal JAA Passes Resolution To Support Legislation For Betterment of Military Career At the meeting of the Board of members of the legal profession Directors of Judge Advocates Asso serving with the armed services to ciation on 23 February 1957, the follow a military legal career com following resolution was passed: mensurate with the special induce The Judge Advocates Association ments now available to the other resolves that unless legislation is professions, notably physicians and promptly enacted by the Congress dentists. which will provide a realistic, scien At the close of the mid-winter tific pay schedule for all members meeting of the House of Delegates of the armed services sufficient to of the American Bar Asociation provide the incentive to keep compe held at Chicago, a similar reso tent officers and technical enlisted lution was offered and approved men on a career basis, thus saving without a dissenting vote. huge sums now lost by the rapid .. The Association's Legislative Com turnover of highly trained and ex mittee, headed by Col. Thomas H. perienced personnel in all branches King, has been instructed to support of the armed services, then this As this position in Congressional hear sociation considers it essential to ings when scheduled on S 1165 and provide adequate inducements for HR4786. Lt. Gittinger Receives JAA Award First Lieutenant Leonard J. Git Judge Advocate General's School. tinger, Jr., has received the Judge The award was made by Major Gen Advocates Association's Award for eral Stanley W. Jones at graduation scholarly attainments in the study ceremonies on 15 February 1957, held of military justice while a student in the School at Charlottesville, Vir in the 24th Special Class at The ginia. Use the Directory of Members when you wish -local counsel in other · jurisdictions. The use of the Directory in this way helps the Association perform one of its functions to its membership and will help you. You can be sure of gettinng reputable and capable counsel when you use the Direc tory of Members. TEAMWORK BY THE PROVOST MARSHAL AND THE JUDGE ADVOCATE IN MAINTAINING DISCIPLINE, LAW, AND ORDER* By Colonel Nathaniel B. Rieger** General Holland, members of the Advocate General's School in Char staff and faculty, and students of lottesville. We hope to arrange for The Provost Marshal General's further exchange of guest instruc School. It is a real pleasure for me tors between our two schools. to be here, to enjoy your hospitality, I am aware that the Military to visit your fine School, and to have Police Gorps has many missions and the opportunity to address you as responsibilities not immediately or brothers-in-arms in the fields of our directly connected with JAG func common interests. While the Infan tions, and in turn the JAG has a try, Artillery, and Armor are in number of responsibilities not di separable on the field of battle, few rectly connected with the Military special staff sections are by mission Police Corps. and operation so closely interdepend An erroneous impression exists in ent as the Military Police Corps and the minds of many that The Judge the Judge Advocate General's Corps. Advocate General of the Army is al The Provost Marshal and the Staff most exclusively concerned with Mili Judge Advocate are the Damon and tary Justice matters, that is, courts Pythias of the Special Staff. They martial and their related problems. must work closely and harmoniously Actually, The Judge Advocate Gen together if the program of law en eral is by statute the legal adviser forcement and the administration of to the Secretary of the Army and to justice in the command is to suc all officials and agencies of the Army, ceed. Each has a specialized part to wherever located. The duties of The perform. In fact, if there are fail Judge Advocate General encompass ures by either of us, we may both a great deal more than just Military be blamed. Justice. In fact, these duties are so It follows that the more each far-reaching that the largest law knows of the functions and respon firm in the world is required to ac sibilities of the other, the greater complish them. This firm, at the will be the operational efficiency of moment, consists -of about 1200 Judge this staff team. That is the basic Advocate officers and 900 civilian at reason for my being here with you torneys. The members of this firm this morning. We are anticipating are scattered all over the world General Holland's visit to our Judge wherever there is a sizable command *An address delivered 26 November 1956 at The Provost Marshal Gen eral's School, Fort Gordon, Georgia. **Commandant, The Judge Advocate General's School, Charlottesville, Virginia. 25 26 The Judge Advocate Journal of American troops or more than for and against the United States. minor American military interests. In 1946, the Congress passed the As might be expected, the largest Federal Tort Claims Act. By that concentration of lawyers, approxi Act, the Congress waived its sover mately 200, is in the Office of The eign immunity-in other words, per Judge Advocate General in Wash mitted itself to be sued for damages. ington. In addition, legal advisers Prior to the passage of the Federal are distributed through the head Tort Claims Act, the only suits that quarters of the Department of the could be filed against the United Army in the offices of the Chiefs of States were in the Court of Claims the Technical Services and else and limited suits under the Lucas where. A mere listing of the major Act. Jurisdiction was limited to subdivisions of The Judge Advocate suits sounding in contract, or con General's Office will give you an idea tracts implied in law-the just com of the legal functions performed. pensation cases arising from a tak These subdivisions are: ing by the Government. The Fed 1. Procurement Law Division eral Tort Claims Act gives Federal 2. Patents Division District Courts jurisdiction of civil 3. Claims Division actions on claims for damages for 4. Military Affairs Division personal injury or death or loss or 5. Litigation Division damage to property, caused by the 6. International Law Division negligent or wrongful act or omis 7. Legal Assistance Division sion of any employee oi the Govern 8. Lands Division ment while acting within the scope 9. Military Justice Division of his office or employment, under 10. Boards of Review circumstances where the United 11. Defense Appellate Division States, if a private person, would be 12. Government Appellate Division liable to the claimant in accordance with the law uf thf' place where the The last four deal with Military act or omission occurred, with cer Justice. I will not detail their scope tain exceptions. of responsibility or operations. In While the claims arising under passing, I might add that less than the Act involve every conceivable 50 per cent of the total man hours occurrence from malpractice of Army of Judge Advocate time is devoted doctors to cases like Texas City, a to Military Justice matters. case where a whole ship being loaded While you may have legal prob with ammonium nitrate blew up, ac lems and have occasion to work with tually most of the cases involve traf the Judge Advocate in any of the fic accidents. fields of law which I have enumer I am aware that Army Regula ated, I would like to make some tions require a Driver's Accident Re personal observations in the areas port of traffic accidents, and Regula where we are the most closely asso tions (AR 15-6) provide for inves ciated. tigating officers to investigate such The first is claims for damages occurrences. But in many casPs the The Judge Advocate Journal 27 first knowledge of an accident comes cipline. The flow of delinquency re from the MP. Frequently, the ulti ports, complaints, charges, and rec mate successful defense of such cases ords of trial, if analyzed intelligently will depend upon the accuracy and and candidly, reveals the state of dis thoroughness of the observations of cipline of units and of the command an MP, his measurements of tire as a whole, and frequently reveals marks, identification of 11ersons and the cause. If we recognize our re vehicles, or his knowledge of ve sponsibility in this respect and exer hicles, their velocity, and their char cise our coordinated imagination, we acteristics. Frequently, the accident can report to our commander not could have been avoided by the only where the trouble spots are but proper actions of an MP in the what their cause is--ar.d of course management of a convoy or proper we can, and should, nec,mmend a traffic control. A whole host of legal cure. problems arise when an em•'lgency Let us consider briefly how we vehicle violates traffic controls and can recognize, diagnose, and cure as a result is involved in a collision. these basic causes of crime. We Often in the guidance of the investi sometimes call this field "preventive gation of accidents by the J A, he discipline." sorely needs the skill and special The Provost Marshal, from his ex training of the MP to assist in the perience and training, his frequent ;nvestigation. inspections on the ground, his many I remember reviewing a litigation contacts, and his study of reports report of a serious accident which submitted by his men, often is in a occurred on US # 1 near the main position to know how, when, and gate of Fort Belvoir where a guard where soldiers are getting into trou was stationed. It happened at noon ble or into situations where crim hour, yet only two witnesses were inal activity or trouble is likely to listed on the accident report, and develop. The Staff Judge Advocate, their correct addresses were not from his experience and training, given. These cases cost millions of his careful review of all of the in dollars annually, and in all cases vestigations, board proceedings, and settled, the money comes from funds records of trial, and his post trial appropria~ed for the operation of interviews with prisoners, is also in the Army. a position to work with the Provost The Provost Marshal and the Marshal in this important field and Judge Advocate are immediately and to make a real contribution to the jointly concerned with the state of commander. discipline in a commar.d r,r units of In many commands, the Judge a command. While the commander Advocate is required to monitor the bears the responsibility, the Provost action taken by the various subordi Marshall and the Judge Ac.vocate nate commands on delinquency re are the staff officers who frequently ports and to report to the com have the earliest cpportunity to rec mander instances of failure to take ognize the symptom:;: of poor dis action or the taking of inadequate 28 The Judge Advocate Journal action. The Staff Judge Advocate shal and the Judge Advocate-a rec normally keeps charts and statistics ommendation followed by command of the trials conducted by the vari action. ous special and summary court-mar At times, the solution of problems tial jurisdictions. Such conclusions of preventive discipline requires the and recommendations to be of great participation of additional agencies. est value should be the product of In the fall or early winter of 1950, teamwork between the Staff Judge after the fighting in Korea had sta Advocate and the Provost Marshal. bilized somewhat, the effects of nar I remember reading the investiga cotic addiction by military person tion of a fight between two soldiers nel became more and more apparent. in a detached Engineer company sta In fact, it had reached substantial tioned at the time near Pusan, Ko proportions. Addicted persons nat rea. Examination of the witnesses, urally gravitate toward a theatre as reflected in the report, disclosed where morphine and heroin can that all of the company officers ex readily be procured, and I suspect cept one who was very junior were that units in Japan, Okinawa, Ha absent from the company on special waii, etc., did not in every instance assignments and that the young of send their very best men as replace ficer could not maintain discipline. ments to the units in Korea. The The company had not been out on a Provost Marshal and the Judge Ad work project in a number of days, vocate made studies which resulted and the men were spending their in bringing in an expert on loan time as you would expect. The fight from the Federal Narcotics Bureau grew out uf a Faro game. A dis of the Treasury Department. The closure of the situation to the Chief Troop Information Officer, the Chap of Staff brought prompt action and lain, the Medics, and selected com I am sure prevented a repetition in manders were called in. As a result, that and perhaps other dispersed an intensive educational program for companies. officers and men was developed and I remember another instance where conducted. Pamphlets were prepared it was brought out in a record of and moving pictures secured. The trial that a laundry platoon officer men were taught the insidious effects ! suppose in a misguided effort to of this deleterious drug. The officers gain platoon unity-was advising his were taught the habits peculiar to men not to "squeal" on each other. addicted persons and how to identify There had been excessive shortages addicted persons so they could be of clothing handled by the platoon, caught. The doctors set up observa and yet little could be developed as tion so that persons arrested could to the cause or the persons responsi be observed as to withdrawal symp ble. A change of commanders per toms. But to the Provvst Marshal mitted the breaking of a well-estab and the Judge Advocate fell the re lished black market uperation. There sponsibility of eliminating from the had been very close cooperation in command those persons already ad the case between the Provost Mar dicted. Orders from the major over The Judge Advocate Journal 29 seas command prohibiting the unau guardianship of combat Engineers. thorized possession of needles, spoons, The program was well advertised and other paraphernalia of the drug within the division, and the AWOL user were published in order to gain and delinquency rate dropped to a the presumption of knowledge and new low. thus to authorize the greater punish The annals of both our Corps are ment for violation thereof. It was replete with examples of imaginative thought that a convicted addict and successful means of preventive should receive a sentence of more discipline. In the field of neutraliz than one year's confinement so that ing potential trouble spots or condi he would be eligible for incarcera tions conducive to crime, I can think tion in one of the Federal drug of several. addiction facilities. The situation, in In one large post, some 30 or 40 time, was brought under control. miles from a large metropolitan Another instance of cooperative area, over one of the most danger action which resulted in the solution ous highways in the nation, drunken of a serious disciplinary problem driving led to an inordinate number occurred in Italy during World War 'Of casualties. The Provost Marshal II. One particular division, in com instituted a courtesy service whereby mon with many others, was afflicted any soldier who had had too much with a tremendous incidence of com to drink could call the MP station bat offenses. General courts-martial and get a military policeman to were in constant session, trying from drive him to his billets in his own 45 to 60 cases per month of dis car. This may have been a lot of obedience, AWOL, misbehavior, and trouble, but it reduced drunken driv desertion. Sentences adjudged ran ing and consequent casualties mate from 50 years to life-yet the court rially. martial rate continued. About this Your Commandant recalls vividly time, the Provost Marshal and the the situation which developed in Judge Advocate put their hends to connection with procurement frauds gether and discovered that convicted while he was the USAREUR Pro prisoners were more than happy to vost Marshal. War and the after go to the Pisa Disciplinary Training math of war always furnishes an Center where life may have been opportunity to operators. The occu rough, but it wasn't as rough as pation of Germany was no exception combat. The solution was to stop to. this axiom. The economic disor trying the shirkers by general ganization of Germany inevitably led courts-martial. Instead they were to black marketing and corruption tried by special courts-martial and among many persons engaged in sentenced to confinement at hard la procurement of supplies and services bor in the division area. The hard from the local economy. German labor consisted of such hazard'Ous business practices, in common with tasks as clearing mine fields and those of many countries, contemplate working on bridges and roads very gratuities and kickbacks to those close to the front line under the in a position to award requisition 30 The Judge Advocate Journal demands or codracts. Such prac great majority of honest military tices became prevalent and were ag personnel and civilian employees. gravated by a gP.neral and cynical All who were engaged in this ardu relaxation of ethical standards. ous, painstaking, and difficult enter Some looseness in procedures and prise may well be proud. practices made fraud and bribery I'm delighted to notice that a con easy, and of course the temptations siderable portion of the Program of were too great for many of our Instruction of the Criminal Investi people. Extensive procurement frauds gation Course is devoted to the in in connection with routine, as well vestigation of procurement fraud. as crash, programs became obvious. The investigation of frauds in the In conjunction with the USAR securing of Class Q allotments in EUR G4, SJA, and IG, General Puerto Rico is another clinical ex Maglin began a series of extensive ample of this close caoperation. investigations, and General Holland It is recognized, of course, that carrier on. This is a type of work any system of crime prevention will usually conducted by the FBI in not eliminate all crime. It is to that this country, but over there it be crime which is not prevented that I came necessary for MPCI investi direct my next remarks. Here is the gators to undertake investigations opportunity, the necessity, for the which assumed tLe magnitude of Provost Marshal and the Judge Ad anti-trust suits. The Judge Advo vocate to work very closely together cate Division went to work and ren in improving the efficiency of inves dered detailed day-by-day advice and tigating and processing charges guidance. One Judge Advocate and against offenders and in the subse-· one civilian attorney devoted their quent trial. full time to these projects. The co We recognize the necessity for an operation and invaluable assistance immediate and proper investigation of the GAO, Army Audit Agency, of an alleged offense and the prompt and the German authorities were ob processing of charges. The liaison tained. The results were the convic and assistance rendered between the tion of many operators engaged in Provost Marshal and the Judge Ad corrupt practices, the debarment and vocate should reach that level of suspensions of venal suppliers, and teamwork demanded by the Infan the recovery of very substantial try and Artillery. sums in overpayments. Through liaison with the Provost The preventive effects were even Marshal, the Judge Advocate should more beneficial. The investigations keep informed as to the 'Occurrence resulted in a general tightening of of serious offenses and incidents and controls and procedures, thus mak the status of investigations thereof, ing procurement fraud less attrac to the end that he can render tech . tive. Best of all, it resulted in a nical legal assistance where needed . marked and apparent improvement He should keep informed as to the in the standards of procurement per status of charges against personnel sonnel and in the morale of the in confinement in order that he may The Judge Advocate Journal 31 render necessary advice in the pro the Federal Communications Act, curement of evidence and expediting and in foreign countries the Federal the processing of charges. Communications Act is not applica Many of you are thinking t~at ble. Thus, the MP criminal investi the Judge Advocate is quick to pomt gator would be well advised to check out that certain facts can't be shown with the Judge Advocate as to in court because of some exclusion whether a wire tap can be used and ary rule of evidence, and you are in not to give up too quickly because clined to think that too often the he believes that generally such evi lawyer takes a negative approach to dence is excluded. criminal investigation. In the matter of the investigation of narcotic cases, the legal questions It is true that our rules of evi of entrapment frequently come into dence are such that much informa play. The average layman has a tion upon which ordinary men base preconceived notion that if a law the decisions of their business and enforcement officer solicits criminal day-to-day affairs cannot be consi~ goods, the defense of entrapment is ered by a court. This, of course, is available to the supplier of the based on the experience of English criminal goods. But the Judge Ad and American courts over the cen vocate can chart a course for the turies and is a guarantee that no investigator which does not run man shall be deprived of life or lib afoul of the law. If the investigator erty on the basis of suspicion, ru has good reason to believe that a mor, or hearsay. Moreover, some suspect is engaged in criminal ac it<>ms of evidence, such as those tivity, then it is not an entrapment which result from an illegal search, to provide the suspect with the op or coerced confessions, are excluded portunity to ply his trade. The de in order to preserve those personal fense of entrapment is available only rights of individuals which our sys to the suspect who is induced to tem considers .fundamental. commit a crime by law inforcement But the ramifications of the rules agents when he would otherwise not of evidence are very complicated, have committed the crime. and it is in this field where a little So you will find that the Judge knowledge is a dangerous thing Advocate is more than willing to ac from the standpoint of law enforce cent the positive if there is any way ment. of doing it. If a proposed action is Just about every criminal investi illegal or dangerous, the Judge Ad gator knows that as a general rule vocate will advise you; but on the evidence obtained as a result of a other hand, he will seek a legal way wire tap is a violation of the Fed to accomplish the result you want. eral Communications Act, and as During this brief period, I have such is inadmissible. However, there discussed the necessity of teamwork are exceptions. For example, an ex by the Provost Marshal and the ciusive military line within a mili Judge Advocate in the maintenance tary installation is not protected by of discipline, law, and order. This 32 The Judge Advocate Journal included an analysis of the principle the outstanding cooperation of your of good leadership in the prevention school representatives, we have been of crime and demonstrated s·ome able to inject more problems which ways in which we can work together require coordinated action with the to improve our efficiency in investi Provost Marshal than with any gating and processing charges where other service. offenses are committed. I hope that I have been able to You should note that my remarks give you some idea of the scope of have been limited to certain aspects the legal services provided for the of the maintenance of discipline, Army by the Judge Advocate. Total law, and order. Time has not per legal service is as near as your tele mitted me to cover many other phone. I trust that you will use the phases of the relationships between legal services available to you to the the Provost Marshal and the Judge fullest possible extent. Advocate. In conclusion, I again express my However, I can demonstrate the appreciation for the opportunity to variety of these common problems address this School. It is a pleasure by referring you to LOGEX. In to work with you. We are looking that exercise which involves the sup forward to your Commandant's visit port of a field type Army under as to The Judge Advocate General's sumed combat conditions, through School. The opm1ons, doctrines, and conclusions expressed herein are those of the individual author and do not necessarily represent the opinion or doctrine of The Judge Advocate General's School, the Judge Advocate General's Corps, the Department of the Army, or any other g-overnmental agency. The Judge Advocates Association is a national legal society and an affiliated organization of the American Bar Association. Members of the legal pro fession who are serving, or, who have honorably served in any component of the Armed Forces are eligible for membership. Annual dues are $6.00 per year, payable January 1st, and prorated quarterly for new applicants. Applications for membership may be directed to the Association at its national headquarters, Denrike Building, Washington 5, D. C. The back pages of this issue contain a supplement to the Directory of Members, December, 1955. The Judge Advocate Journal 33 General Harmon Receives Distinguished Service Medal Major General Reginald C. Har changes in military law were imple mon, who was reappointed for a mented in a highly efficient manner third term as The Judge Advocate during this period. He personally General of the Air Force on 5 No devised systems of education and in vember 1956, was presented the doctrination for officers of his de Distinguished Service Medal by Gen partment which insured the adminis eral Nathan F. Twining, Chief of tration of Air Force military justice Staff of the Air Force on 17 Decem on a consistently high plane. Under ber 1956. The citation reads as fol his direction procedures were devel lows: oped whereby persons sentenced to "Major General Reginald C. Har punitive discharges who are capable mon distinguished himself by excep of rehabilitation are afforded oppor tionally meritorious service to the tunities to be restored to honorable United States in a position of great duty and to earn discharges under responsibility from 8 September 1948 honorable conditions. His actions and to 8 September 1956 as the first services have contributed immeas Judge Advocate General of the urably to public confidence in the United States Air Force. In this military lawyer and in the adminis important and highly specialized as tration of justice in the Armed signment, the extraordinary leader Forces. The singularly distinctive ship, initiative and foresight of Gen services of General Harmon are eral Harmon were significant factors worthy of emulation by his country in the establishment of a legal de men and reflect the highest credit partment for the United States Air upon himself and the United States Force. Two drastic Congressional Air Force." The Journal is your magazine. If you have any suggestions for its im provement or for future articles, please bring them to the attention of the Editor. We invite the members of the Association to make contributions of articles for publication in the Journal. Publishability of any article sub mitted will be determined by the Editor with the advice of a committee of the Board of Directors. II>""' >-3 ::r ~ ..... ::i..= l1q ~ ~ < 0 r> .... "'~ ..... Official U.S. Air Force P hoto. 0 General Twining presents DSM to General Harmon at Pentagon ceremony. =.... e:.= of the Court of Military Appeals Command Influence by Policy mary court-martial jurisdiction over Directive the accused is given discretion to U.S. v. Hawthorne (Army) determine whether the charges should 24 August 56, 7 USCMA 293 be disposed of administratively or by The accused, a regular Army sol courts-martial under UCMJ and the dier, was convicted of misappropri commanding officer is required to ating a Government vehicle. There make a specific recommendation as was evidence of three previous con to disposition when charges are sub victions by summary and special mitted for trial by special court courts-martial for drunkenness and martial or general court-martial. In related offenses. The accused was addition, charges should be tried by sentenced to dishonorable discharge, the lowest court that has power to total forfeitures and confinement at adjudge an appropriate punishment. hard labor for one year. A few The policy directive required that months prior to trial, the convening the charges be referred to a general authority had promulgated a policy court-martial and thereby deprived directive concerning the elimination the accused's commander of any dis from the Service of regular Army cretion except to refer the matter repeated offenders providing that as for general court-martial. In addi a general rule any charge against tion, the policy directive in this case a regular Army soldier with two provided that it be brought to the prior convictions should be referred attention of every member of every to a general court-martial so that general courts-martial and therefore elimination by a punitive discharge it deprived the accused of a right could be effected under the provi to be tried by an impartial court. sions of MCM 1951, Paragraph 127, U.S. v. Fowle (Navy) Section B. On petition of the ac 31 August 56, 7 USCMA 349 cused, the Court held that the policy The accused was convicted by a directive directly tended to control special court of larceny and sen the judicial processes rather than tenced to a BCD, partial forfeitures, merely attempt to improve the dis reduction and cor>finement at hard cipline of the command and, there labor for three months. The trial fore, was illegal. TheTe seemed to counsel brought to the attention of be no exception to the directive re the court a policy directive of the quiring trial by general court-mar Secretary of the Navy that all per tial of regular enlisted men with sons convicted of larceny and other two previous convictions within two crimes involving moral turpitude years. The officer exercising sum should be separated from the Serv 35 36 The Judge Advocate Journal ice. The defense counsel argued that the former commanding officer was this policy did not deprive the court designated as law officer. After con of its discretion in the matter of viction, the accused petitioned CMA sentencing and urged leniency, but for review which was granted. The the trial counsel in his argument in Court held that the power to refer sisted that this was a case for the charges for trial is non-delegable and application of the policy announced since the SJA in this case had re by the Secretary of the Navy. CMA ferred the case for trial under dele held that there was prejudicial er gated authority from the convening ror as to the punitive discharge, authority, there was prejudicial er finding that the policy directive ror. Further, the Court said that acted as a leverage to compel a cer the law officer having advised the tain result in the trial itself. earlier command concerning the When the trial counsel insisted charges was disqualified to serve as that the policy be applied in the law officer since the defense was not case even an instruction of the put on notice as to the law officer's president or law officer that the prior advice on the charges. members of the court were not bound by the policy could not re Excusing Challenged Member move the prejudice, for "reasonable U.S. v. Jones (Army) men must conclude that once the Sec 24 August 56, 7 USCMA 283 retary of a Service enters into the The accused soldier was convicted restricted arena of the court room, of wrongful use of narcotics. Dur whether the members of the court ing the trial while one of the prose are conscious thereof or not, he is cution witnesses was on the stand, a bound to exert some influence over court member rcvrnled that he had them. A trial must be kept free served as member of a court that from substantial doubt with respect to fairness and impartiality." had tried the witness for the same offense on the same occasion as that Improper Delegation of Authority alleged against the accused. The law officer then excused the member U.S. v. Roberts (Army) subject to objection by any member 31 August 56, 7 USCMA 322 of the court, and over defense ob Desertion charges in this case jection, no member of the court ob were investigated by order of a con jecting, the challenged member with vening authority on the advice of his drew. On petition of the accused, SJA and referred for trial by GCM. CMA held that there was no preju After a continuance of the trial, a dicial error and pointed out that successor command re-referred the Article 29 (a) UCMJ provides that case for trial by GCM, but appar a court member shall not be excused ently this reference to trial was after arraignment except as a result made by a new SJA under delega of a challenge. The member in this tion from the new cunvenmg author case was excused by the law officer, ity. The old SJA who had advised obviously on the basis of a challenge The Judge Advocate Journal 37 for cause. The Court observed that action. CMA held that the forfeit a challenged member should be ex ures could not be applied to any pay cused only after a vote in accord or allowances which accrued prior to ance with the procedure in Articles the completion of appellate review. 51 and 52, but that any error in the The Court said that desertion is not procedure followed in this case was a continuing offense, but is committed not prejudicial. on the date when the accused absents himself without authority intending Staying Appellate Review Because of Insanity of Accused not to return. Accordingly, the 1949 Manual (Ellston Act) was in effect U.S. v. Korzeniewski (Army) when this offense was committed and 31 August 56, 7 USCMA 314 under that law, the forfeiture of the The accused under a pre-trial accused's pay and allowances could agreement pleaded guilty to deser not be effective until after comple tion. The court had determined that tion of appellate review. Under Ar the accused was mentally responsible ticle 57 (a), UCMJ, the forfeiture at the time of his offense and during could be made applicable on and the period of his absence and fur after the date sentence is approved ther that he was mentally capable by the convening authority but that to stand trial. However, at the time article did not govern this case. the case came before the board of review, the accusE:d had become men Burden of Proof on Defense of tally incompetent. CMA on petition Mistake of Fact of accused held that a board of re U.S. v. Noe (Navy) view with its fact finding powers 2 November 56, 7 USCMA 4.08 cannot proceed with the review of a case of an insane accused, but that The accused was convicted of big appellate review of the case is tolled amy. The defense introduced evi until sanity is subsequently restored. dence tending to establish that the accused was under the impression Effective Date of Sentence of that he was divorced from his first Forfeiture wife at the time of his second mar U.S. v. Ray (Army) riage. The law officer instructed the 19 October 56, 7 USCMA 378 court that a person who at the time The accused on convicti'on of de of his alleged wrongful and bigam sertion in violation of Article of ous marriage had an honest and rea War 58 was sentenced to DD, TF sonable belief that his prior mar and CHL for 20 years. The deser riage had ceased to exist cannot be tion began 11 April 1951 and the found guilty of bigamy even though absence continued until apprehension he may have been mistaken in that on 2 August 1955. The convening belief. He then went on to instruct authority approved the sentence and the court "if you believe from the directed that the forfeitures should evidence beyond a reasonable doubt apply to pay and allowances becom that the accused had been informed ing due on and after the date of his that his first wife had divorced him 38 The Judge Advocate Journal ***,you should find him not guilty". Defense Counsel Challenged as a CMA held the law officer's instruc Subordinate of the Trial Counsel tions improperly shifted the burden U.S. v. Hayes, (Air Force) of proof. The accused having raised 4 January 57, 7 USC.MA 477 the issue of mistake of fact, the The convening authority of a GCM Government had the burden to prove appointed the SJA of a subordinate beyond reasonable doubt that his command as trial counsel and one of theory was not correct. The instruc that SJA's subordinate officers as de tion was improper in part, and the fense counsel. It appeared that the fact that it was correct in other trial counsel in his capacity as SJA parts. does not remove the prejudice had advised accused's commanding of the error. The board of review officer as to the formulation and having affirmed the conviction was disposition of charges and had par reversed and a rehearing was or ticipated in the pre-trial investiga dered. tion. The defense of the case was conducted by civilian counsel who Power of Board of Review to Refer objected to the trial counsel because Case to Another Convening he was the superior of the regularly Authority appointed defense counsel. The board U.S. v. Papacik (Army) of review affirmed the conviction and 9 November 56, 7 USCMA 412 CMA, on petition, affirmed, stating that of course in certain circum The board of review in reviewing stances the appointment of a su a conviction of desertion concluded perior and a subordinate as trial and that the SJA's review was preju defense counsel, respectively, may af dicially deficient and directed that fect the freedom of action of the the record of trial be referred to subordinate, but since civilian coun another convening authority for re sel carried the burden of the defense view and action. TJAG certified the in this case, there was no probabil question of the propriety of a boara ity of improper influence of the trial of review directing the record of counsel over the conduct of the de trial to be referred to another con fense. The Court found also that the vening authority for review and ac trial counsel was not disqualified as tion. CMA held the board did not such because he had advised ac abuse its discretion since it is con cused's commanding officer concern ceivable that it would be difficult for ing these charges. an accused to receive an objective and unbiased review if his case was Delegation of Power over Suspension referred to the same legal authority of Punitive Discharge and staff. The Court specifically U.S. v. Butts (Navy) said, however, that it did not hold 4 January 57, 7 USCMA 472 that a case should never be returned In this case, the accused received to the same convening authority to a sentence by special court-martial either correct its action or for addi which included a bad conduct dis tional review. charge. The convening authority re The Judge Advocate Journal 39 duced the confinement to thirty days December 55. Evidence established and suspended the execution of the the beginning of the accused's ab BCD until release from confinement sence on the 28th of October but or the completion of appellate re established no date for its termina view. The supervisory authority ap tion. The Board of review affirmed proved the sentence directing that the finding of guilty and on petition execution of the BCD be suspended of the accused, CMA reversed hold for six months at which time unless ing that the evidence established only suspension is sooner vacated, the an absence without leave on October BCD will be remitted, but added a 28th. Where only the inception of proviso that the suspension will not the unauthorized absence is shown, become effective unless the conduct presumptions cannot serve to estab of the accused has been satisfactory lish the length of the absence. to his commanding officer between the date of trial and the date of Self-incrimination this action. The board of review U.S. v. Jordan (Air Force) held that the supervisory authority's 4 January 57, 7 USCMA 452 action was void as an illegal delega The accused was found guilty of tion of authority. This question was willful -disobediance of an order to certified to CMA, which affirmed the furnish a urine specimen to military ooard of review, holding that the police agents, at a time when he supervisory authority's action added was suspected of using narcotics. conditions to the suspension which The board of review affirmed the did not exist in the convening au conviction and on petition of the ac thority's action and being more se cused, CMA reversed and ordered vere than those in the latter's ac the charges dismissed. The Court tion were illegal. Further, the Court held that the order to furnish a said that the convening authority specimen violated Article 31 as com must personally exercise his powers pliance therewith would compel the when he reviews the record of trial. accused to produce evidence against The supervisory authority must also himself for use in a criminal pro take personal action. The condition ceeding. Judge Latimer dissented on here imposed by the supervisory au the basis that Article 31 (a) pre thority granted the accused's com vents the accused from being com manding officer the power to deter pelled to perform acts which require mine the effectiveness of the suspen active participation and affirmative sion and is, therefore, an illegal dele conduct in prcducing incriminating gation of p'Ower and accordingly void. evidence. Insufficiency of Proof of Continuing Double Jeopardy-Self incrimination AWOL U.S. v. Schilling (Army) U.S. v. Lovell (Air Force) 4 January 57, 7 USCMA 482 21 December 56, 7 USCMA 445 The accused was found guilty of The accused was found guilty of larceny. At the first trial during AWOL from 28 October 55 to 20 final argument by the trial counsel, 40 The Judge Advocate Journal the defense moved for a mistrial on Jurisdiction over Offenses Committed the basis of improper comments by During Prior Enlistment the trial counsel. It was then dis U.S. v. Gallagher (Army) covered that the court reporter's re 18 January 57, 7 USCMA 506 cording machine had not been oper ating properly and a great deal of The accused was captured by the the proceedings had gone unrecorded. enemy in Korea on 2 November 1950. Upon this latter basis, the law of While a prisoner of war, it was al ficer declared a mistrial. The ac leged that the accused committed cused was again tried on the same certain offenses against his fellow charges without objection and found prisoners and in collaboration with guilty. The evidence developed that the enemy. On 27 August 1953, he the victim of the theft reported the was returned to the American Forces matter to the battery duty officer and granted leave in the U. S. until who called the accused to the office October 1953 when he re-enlisted in offered to explain to him his right~ the Army for a period of three under Artie]!) 31, but the accused years. The accused's prior enlist refused to make a statement, but ment as extended by executive order then proceeded to discuss the matter expired on 12 October 1951. His re with the victim in the presence of enlistment began 27 October 1953 the duty officer. At the trial the and he was furnished an honorable duty officer, 'Over defense objections, discharge on that date from his first testified as to incriminatory remarks enlistment. Upon being charged and made by the accused in the conver tried for the above mentioned of sation. The board of review affirmed fenses while a prisoner of war, the the conviction. CMA on petition of accused contended that, there was a the accused affirmed the board of hiatus between his discharge and re review, holding (1) A claim of for enlistment which prevented the exer mer jeopardy is waived by the fail cise of court-martial jurisdiction over ure to ·object at the time of the sec him for offenses committed during ond trial. Further the absence of a his prior enlistment. He was found guilty by the court-martial, but the full and accurate record of trial board of review ordered the charges caused by the breakdown of the re dismissed on the ground 'Of lack of cording machine fully justified the jurisdiction. This issue was certified law officer in declaring a mistrial to to CMA, which reversed the board prevent a failure of public justice; of review, holding that the court and, (2) The accused's oral state martial possessed jurisdiction to try ment as testified to by the battery the accused for the offenses which duty officer was properly admitted were committed during his prior en in evidence, since the battery duty listment. CMA referred to U. S. ex officer had no official connection with rel Hirshberg v. Cook, 336 U.S. 210, the case and the entire conversation saying that the basis of the decision was entirely personal and outside in that case was that Congress had the reach of Article 31. not authorized the exercise of such The Judge Advocate Journal 41 jurisdiction upon a re-entry in the April. He was then placed under in Service after a hiatus had occurred, formal restriction and directed to but the Supreme Court had indicated report to the director's office daily that such legislation would be con after 15 April, but instead he flew stitutional. CMA stated that Article to the United States at his' own ex 3 (a) UCMJ was enacted by the pense on 17 April 1952. About four Congress for the express purpose of teen months later, the accused en eliminating the Hirshberg rule and tered Korea as a commercial entrant although the Supreme Court had and was apprehended by the Air held Article 3 (a) unconstitutional .Force authorities and taken to Japan in U.S. ex rel Toth v. Quarles, 350 where his trial was held and he was U.S. 11, it did so only with respect convicted. The board of review held to persons like Toth who are civ that the court-martial had jurisdic ilians at the time of the attempted tion over the accused. This decision exercise of court-martial jurisdic was affirmed by CMA. CMA stated tion. CMA, therefore, decided that that the accused was a person ac Article 3 (a) is constitutional when companying the Armed Forces at the applied so as to preserve jurisdic time of his offenses and at the time tion over discharged Servicemen who of his return to the United States have re-enlisted. under Article 2 (11) UCMJ. Hi~ flight from Japan while under an Court-martial Jurisdiction over informal type of restriction was ob Civilians viously to avoid criminal prosecu tion. The investigation of the ac U.S. v. Rubinstein (Air Force) 25 January 57, 7 USCMA cused's conduct was the first step in the prosecution and jurisdiction to The accused was a civilian em try the accused had vested and was ployed as an Air Force club man not lost by his wrongful departure ager (a non-appropriated fund activ from Japan. The Government by its ity) in Japan. His activities as club acts may lose the power to try an manager, coupled with certain black accused by court-martial, but the market transactions, brought him under interrogation by military po accused cannot by his unilateral ac lice agents on 12 April 1952. His tion take that authority away. It contract of employment, which pro would seem that this opinion reflects vided that he was subject to military a broader concept of the vesting of jurisdiction, expired on 15 April 1952 jurisdiction to try a person subject and he advised the military police to military law than contemplated agents of his intention to return to by the Manual, Paragraph 11 (d) the United States by ship on 22 MCM. 42 The Judge Advocate Journal General Hickman Named TJAG of the Army Major General George W. Hick Jones was also sworn in as The man, Jr.*, took the oath of his office Adjutant General of the Army.** as The Judge Advocate General of The elevation could not have come the Anny on 2 January 1957. The to a finer gentleman; and, the mem oath was administered by the Honor bers of the Judge Advocates Asso able Wilber M. Brucker, Secretary ciation wish for General Hickman a of the Army, in a double ceremony happy and successful tenure as chief held in the Secretary's Office at legal officer of the Army. which Major General Herbert M. * See 23 J AJ 24, "General Hickman Adds a Second Star" for a bio graphical statement of the new TJAG and a photograph of the ladies in the General's life. **See cut. Statement of Policy The Judge Advocates Association, an affiliated organization of the Ameri can Bar Association, is composed of lawyers of all components of the Army, Navy, and Air Force. Membership is not restricted to those who are or have been serving as judge advocates or law specialists. The Judge Advocates Association is neither a spokesman for the services nor for particular groups or proposals. It does not advocate any specific dogma or point of view. It is a group which seeks to explain to the organized bar the disciplinary needs of the armed forces, recalling, as the Supreme Court has said, that "An Army is not a deliberative body," and at the same time seeks to explain to the non-lawyers in the armed forces that the American tradition requires, for the citizen in uniform not less than for the citizen out of uniform, at least those minimal guarantees of fairness which go to make up the attainable ideal of "Equal justice under law." If you are now a lawyer, if you have had service in the Army, Navy or Air Force or are now connected with them in any capacity, active, inactive, or retired, and if you are interested in the aims herein set forth, the Judge Advocates Association solicits your membership. U.S. Army Photograph TJAG and TAG TAKE OATH OF OFFICE (Left to right) Mr. Brucker, General Jones and General Hickman 44 The Judge Advocate Journal General Jones Named Army Assistant TJAG On 1 January 1957, General Stan Law, in 1942. He has had wide ley W. Jones* was promoted to legal experience throughout all levels Major General, Regular Army, and of the Army. , designated The Assistant Judge Ad He is a member of the American vocate General of the Army. Bar Ass'Ociation and active in that General Jones is a native of New Association's Section on International York; he graduat€d from the Mili and Comparative Law. He currently tary Acadamy in 1929 and from the serves as a member of the Board of University of Virginia, School of the Judge Advocates Association. *See biographical statement in 21 JAJ 34, December 1955. JAA Members At Work In 'Visconsin The Wisconsin Chapter of the ship therein are determined. Pursu Judge Advocates Association was or ant to this order, prop'Osed rules for ganized in Milwaukee on February bar integration were filed with the 17, 1956, during the Mid-Winter Court in the fall of 1956 and those Meeting of the Wisconsin Bar Asso rules provide, among other things, ciation. Charles A. Riedl of Mil for the establishment of a section waukee and Richard N. Hunter, on military law. Waukesha, were elected chairman The Wisconsin members of the and secretary of the group, respec Judge Advocates Association have tively. The then President of the been largely resp'Onsible for this Wisconsin Bar Association, Alfred work and there is now a section on La France, spoke to the J AA mem military law in the Wisconsin Bar bers on that occasion and urged them Association. At its first meeting in to request the House of G'Overnors June, Brig. Gen. Don E. Carleton, of the Bar Association for authority Director of the Milwaukee City Civil to organize a military law section. Defense Administration, spoke on Too Supreme Court of Wisconsin "The Lawyer's Role in Civil Defense on June 22, 1956 (In the Matter of Administration". the Integration of the Bar, 273 Wisc. 281) ordered that the bar of Wis The Judge Advocates Association's consin should be integrated when Wisconsin Chapter and the new sec proper rules for the structural or tion on military law held meetings as ganization and government thereof part of the mid-winter session of the and the definition of the rights, ob State Bar of Wisconsin in Milwau ligations and conditions of member kee in February 1957. U .S. Army Photogr aph General Hickman and Mrs. Jones pin another star on General Jones at ceremony in the Pentagon. 46 The Judge Advocate Journal ANNUAL MEETINGS, 1957 - NEW YORK AND LONDON The Judge Advocates Association on arrangements for the London ses will hold its annual meeting at 2 :30 sion of Judge Advocates is Col. Carl p.m. on Monday, 15 July 1957, at Williamson. On 25 July 1957, there the Columbia University Club, 4 will be a dinner sponsored by the West 43rd Street, New York City. Judge Advocates Association at the On the evening of the same day, Dorchester Hotel followed by a floor there will be a Judge Advocates show. The cover charge will be £2 dinner-dance held at the Brooklyn per person. The Judge Advocates Navy Yard Officers' Club. Cocktails General of each of the Services and will be served from 6:30 to 7:30 p.m. the Judges of the Court of Military followed by supper, and dancing Appeals will attend both the New from 9:00 to 12:00. Of course, an York and recessed sessions. In Lon excellent menu has been planned and d·on, the British Judge Advocates the tariff of $8.00 per person will will be guests and the speaker will cover cocktails, dinner and dancing. be the Honorable Ewen Montagu, It is also planned that military bus Judge Advocate General of Her transportation will be available from Majesty's Fleet, the author of "The the Waldorf to the Navy Yard and Man Who Never Was". return. Capt. Robert G. Burke is Members are requested to make chairman in charge of the New York their plans known for each of these Citv portion of the annual meeting-. meetings as early as possible so that The Judge Advocates Association some estimation of atten.dance can will have a recessed meeting in Lon be made and adequate accommoda don. The chairman of the committee tions arranged. lht fllrmnrtum Members of the Judge Advocates Edward A. Levy of Passaic, New Association profundly regret the Jersey. passing of the following members whose deaths are here reported: Col. John J. O'Brien, Seattle, A. G. C. Bierer, Jr., of Guthrie, Washington. Oklahoma. Abram Nicholls Jones of Roches Charlc3 L. Williams of Henderson, ter, New York. Texas. The Judge Advocate Journal 47 Supreme Court Reconsiders Military Jurisdiction Over Civilians The Supreme Court of the United and bearing on the relations of Ar States for the first time in seven ticle III and the Fifth and Sixth years has granted a petition for re Amendments in interpreting those hearing in a case after the filing clauses. In particular, the question of a formal opinion. In Curtis Reid whether such historical evidence vs. Covert and Kinsella vs. Krueger points to the conclusion that the (352 US 901), the Court granted a Art. I, section 8, cl. 14 power was petition for rehearing filed by Fred thought to have a fixed and rigid erick Bernays Wiener, attorney for content or rather that this p-ower, Covert and Krueger. as modified by the Necesasry and The Court invited discussion by Proper Clause, was considered a counsel on reargument of the fol broad grant susceptible of expansion lowing matters: under changing circumstances. 1. The specific practical necessities 3. The relevance, for purposes of in the government and regulation of court-martial jurisdiction over civ the land and naval forces which ilians overseas in time of peace, of justify court-martial jurisdiction over any distinctions between civilians civilian dependents overseas; the employed by the armed forces and practical alternatives to the exercise civilian dependents. of jurisdiction by court-martial. 4. The relevance, for purposes of 2. The historical evidence, so far court-martial jurisdiction over civ as such evidence is available and ilian dependents overseas in time of relevant, bearing on the scope of peace, of any distinctions between court-martial jurisdiction authorized major crimes and petty offenses. under Art. I, section 8, cl. 14, and Reargument of the cases was held the Necessary and Proper Clause, on February 27 and 28th. A strong Association can serve you better. Pay your annual dues. If you are uncertain as to your dues status, write to the offices of the Associa tion for a statement. Stay active. Recommend new members. Remember the Judge Advocates Association represents the lawyers of all components of all the Armed Forces. District of Columbia A.B.A.'s House of Delegates and Col. Thomas H. King and Col. President-designate spoke on "The Edwin S. Bettelheim were recently A.B.A. and the Military Lawyer". named as members of a distinguished Maryland awards jury to select the recipients of the Freedoms Foundation's awards. On February 8, 1957, the last Murray A. Kivitz recently an Texas City disaster claim was set tled by the Claims Division of the nounced the removal of his law office to Suite 628, Investment Building, Office of The Judge Advocate Gen Washington 5, where he will continue eral at Ft. Holabird. On the occasion, the general practice of law. Hon. Clark Thompson, Member of Congress from Texas, visited Col. John Gibson Semmes recently an Alfred C. Bowman, Chief of the nounced the establishment of new Claims Division, to meet and express law offices in the Walker Building his personal thanks to the personnel for the practice of patent, trademark who had handled the job of settling and related causes. Mr. Semmes the Texas City disaster claims. Con formerly practiced as a member of gressman Thompson said: "I speak the firm of Semmes & Semmes. for all those people involved when I Jules Fink, having recently com say that this accomplishment of the pleted a tour of extended active personnel of the Claims Division, duty in the Office of The Judge Ad Office of the Judge Advocate Gen vocate General, Department of the eral, has created a group of grateful Army, has resumed the general prac citizens who have gained a clearer tice of law with offices in the Wen understanding and appreciation of der Building. the Army's effectiveness through Washington area members of the this association. Those concerned Association held a dinner meeting at have nothing but kind thoughts and Bolling Air Force Base Officer Club admiration for the Army, and will on the evening of 27 March. The entrust their s·ons to military service festive occasion celebrated General with greater alacrity and a deeper Hickman's appointment to TJAG of sense of confidence, as a result of the Army and General Harmon's this contact." These claims involved reappointment as TJAG of the Air a total cost to the Government of Force. Additional cause of celebra $16,000,000. (see cut) tion was General Jones' promotion to Major General and Major General Massachusetts Kuhfeld's first permanent star. The Ralph G. Boyd recently announced speaker of the evening was Mr. the formation of a partnership un Charles S. Rhyne of the District der the firm name of Boyd & Mac Bar. Mr. Rhyne, who is chairman of Crellish for the practice of law at U.S. Army Photograph Congressman Clark Thompson of Texas visits Ft. Holabird. (Left to right) Gen. Prather, Commanding General; Col. Alfred C. Bowman, Chief of the Claims Division, and Lt. Col. Thomas C. Marmon, Chief of the Texas City Claims Branch. 50 The Judge Advocate Journal 75 Federal Street, Boston 10. Mr. New Jersey William D. Weeks is associated with Harold L. Wertheimer, who was at the firm. one time the Chief Regional Trial Lt. Walter F. Brown, USNR, has Attorney for the Office of Rent been transfered from Great Lakes, Stabilization for the region compris Illinois, to Boston, where he is Legal ing Pennsylvania, New Jersey, Dela Officer for the United States Naval ware and Maryland and who, for the Receiving Station. past three years, has been a member of the Legal Department of the Michigan Lawyers Title Insurance Corporation Benjamin H. Long of Detroit, for at the Camden, New Jersey, Branch merly a member of the firm of Dy Office, has resigned his position with kema, Jones & ·wheat, has recently the latter company and has just announced the opening of his offices opened offices for the general prac for the general practice of law in tice of law in the Schwehm Building the Penobscot Building. Col. Long in Atlantic City. will have associated with him Mr. David M. Preston. New York Missouri Abraham S. Robinson of New York City has been appointed Chairman Bertram W. Tremayne, Jr., re of the Military Justice Committee of cently announced that Helen G. Joa the Association of the Bar of the quin and A. Wimmer Carr have be City of New York-for a fourth come associated with his firm. Mr. term. Tremayne's firm engages in the gen eral practice of law at 25 North Samuel G. Rabinor of Jamaica has Meramec Street, St. Louis 5, Mis been named by the Queens Gounty souri, under the firm name of Tre Bar Association to address the round mayne, Joaquin & Lay. t::.ble conference of the Queens County Bar Association on the preparation Nevada for trial of a negligence case. Clel Georgetta of Reno has taken Robert A. Morse, having recently time from a busy law practice to completed a tour of active duty in become an author. His recent work the Office of the SJA at Middletown entitled "Wool, Beef and Gold" is Air Materiel Area, Olmstead AFB, published by Pacific Books of Palo has accepted an appointment as As Alto, California, and sells for $4.75. sistant United States Attorney in The book is a collection of thirteen Brooklyn. stories about Sage River Valley in Nevada. The basic charm of the Ohio book is the charm of Ciel Georgetta. Warren M. Briggs recently an It isn't polished or self-conscious, but nounced the opening of offices for the an honest presentation of Sage River general practice of law in the So Valley and should prove to be thor ciety for Savings Building, Cleve oughly entertaining reading. land 14. The MLOO's U.S. Army Photograph (Left to right) Front row: Col. Loy, Legal Officer, 3rd Marine Division; Col. King, Chairman, U. S. Land Acquisi tion Commission; Col. Gaynor, SJA, RYCOM; Col. Rollman, SJA, 313th Air Division; Col. Mac Eachern, RYCOM Provost Marshal; Capt. Amery, SJA, 51st F-1 Wing. Back row: Maj. Furman; Maj. Knapp; Capt. Bagley; Lt. Blan, Jr.; Capt. Eastman; Lt. Goffey; Capt. McClellan; Capt. Talbot; Lt. Grahl; Lt. Basso; Capt. Steele; and Lt. Cameron. 52 The Judge Advocate Journal Oregon William F. Parkerson, Jr., acted as Col. Benjamin G. Fleischman (3rd Law Officer and Col. Edward M. Off.) has been again elected Presi Hudgins presided over the court. dent of the Retired Officers Club of Members of the court were Col. Portland. Charles T. Blair, Lt. Col. John W. Norman A. Stoll has been named Knowles, Major Julian E. Savage, Capt. William J. Qualls, Lt. Win Chairman 'Of the Statutory Revision frey T. Wade and Lt. Marshall L. Committee of the Oregon State Bar Lowenstein. Col. Hansell M. Pasco Associaticn. was the Court Reporter and the wit Virginia nesses were Lt. Col. Rosswell P. Walter W. Regirer of Richmond Snead, Lt. Col. Lewis W. Martin and recently defended military justice Major P. D. Muse, Jr. The result of under the Uniform Code of Military trial was not announced, but the Justice by an article on the editorial Editor is assured that justice pre page of the Richmond Times Dis vailed. patch. He stated in his article that Washington "UCMJ-is without any doubt the Wheeler Grey of Seattle recently finest development of military legal announced that his firm, Jones & thinking in the world. I 'Ought to Grey, has admitted to the partner know and be able to compare it. ship Richard A. Clark and Richard Before entering into the U. S. Army, I. Sampson. Jones & Grey have of I served under four foreign flags." fices in the Colman Building. Richmond lawyers swapped roles and portrayed the accused and wit Okinawa nesses in a moot court-martial trial The uniformed lawyers of the mili staged by Army Reserve School on tary services stationed in Okinawa March 5, 1957, at Reserve Armory. have organized a monthly bull ses The Maot Court team was organized sion with cocktails, dinner and guest and rehearsed under direction of speaker. They call themselves the Colonel Joe T. Mizell, Jr. The prose MLOO's (Military Lawyers of Okin cution was represented by Captain awa), but actually they could pass Edward R. Parker, Lt. Lewis I. as a chapter of Judge Advocates Booker and Lt. Marion B. Morton. Association. Col. John P. King is The imaginary PFC Harry D. May the "chief justice" and Lt. Col. Rob be played by Lt. Col. Earl M. Ed ert 0. Rollman, Lt. Col. John I. Loy wards was alleged to have stolen an and Col. James K. Gaynor are "asso automobile and having deserted the ciate justices". Some insight into U. S. Army. Marine Major Wil their activities may be gathered from liam H. Sager and Capt. Arlin F. the cut which, incidentally, was Ruby defended the accused. HenriC'O taken before the meeting began and County Commonwealth Attorney, not after the cocktails. SUPPLEMENT TO DIRECTORY OF MEMBERS, 1955· CHANGES OF ADDRESS Maj. LeRoy J. Abt, USAF (JAGD) Lt. William C. Bullard Hq., Tenth Air Force 1600 Esperson Bldg. Office of the Staff Judge Advocate Houston 2, Texas Selfridge Air Force Base, Michigan George L. Burns Lt. Col. Louis F. Alyea 4966 Westwood Road 7723 Lakeview Drive Kansas City, Missouri Falls Church, Virginia Maj. Gen. Eugene M. Caffey Capt. William B. Anderson Route 2 - Box 216 Assistant City Counselor Las Cruces, New Mexico 234 City Hall Lt. Col. Lucille Caldwell St. Louis 3, Missouri Box 283, Truax Field Hugh B. Archer Madison, Wisconsin 7405 Beverly Road Donald K. Carroll Washington 14, D. C. P. 0. Box 58 Capt. Donald V. Bakeman Jacksonville 1, Florida 62 W oodock Drive Maj. Clifford R. Carver Westbury, New York Staff Judge Advocate Lt. Col. Morrie Benson Parks Air Force Base Office of the Staff Judge Advocate California Hq. 2d Air Force Sol J. Chasnoff Barksdale Air Force Base 155 Midland Avenue Shreveport, Louisiana Kearny, New Jersey Lt. Col. James F. Bishop 2530 N. Kenilworth Street John V. Connorton Arlington, Virginia 3 East 54th Street New York 22, New York Lt. Walter F. Brown, USNR Legal Office Lt. Col. Francis R. Coogan U. S. Naval Receiving Station Hqs.· 5th A.F. Box 307 495 Summer Street APO 710, San Francisco, California Boston 10, Massachusetts Jack M. Cotton Robert E. Bullard c/o Feedback Controls P. 0. Box 21 899 Main Street Rockville, Maryland Waltham, Massachusetts *See 22 JAJ 48-53 and 23 JAJ 44-48 for changes and additions hereto fore made. 53 54 The Judge Advocate Journal Edward B. Crosland Lt. Col. Eugene M. Gant, Jr. Assistant to President Staff Judge Advocate American Telephone & Telegraph Co. Hq. NAMAP 195 Broadway APO 323, San Francisco, Calif. New York 7, New York Delbridge L. Gibbs Capt. Victor A. De Fiori 1321 Florida Title Building Judge Advocate Section P. 0. Box 447 Hqs., 4th Army Jacksonville 1, Florida Fort Sam Houston San Antonio, Texas Cdr. Franklin P. Gould, USNR Staff, Commander Amphibious Group Col. John H. Derrick Two McKnight Building c/o Fleet Post Office Minneapolis 1, Minnesota New York, New York Ernest H. Dervishian Capt. Charles P. Grahl 516 American Building Hq., Squadron Section (SJA) Richmond 19, Virginia 18th Air Base Group Maj. John J. Ensley APO 239, San Francisco, :.04 Vista Drive California Falls Church, Virginia Joseph R. Gray Maj. Herman C. Estes 310 Merchandise Mart 7506 North Street, S. W. Chicago 54, Illinois Tacoma 99, Washington Capt. Rupert P. Hall Oscar M. Fair, Jr. Staff Judge Advocate Section 107 Berkshire Drive Hq., Southern Area Command Virginia Hills APO 407, New York, New York Alexandria, Virginia Col. Tom B. Hembree Lt. Albert J. Feldman Staff Judge Advocate Apt. 22-B Franklin Park Hq. I Corps Chew Ave. & Duval St. APO 358, San Francisco, Philadelphia 38, Pennsylvania California Col. Claude E. Fernandez Milford F. Henkel Staff Judge Advocate 7258 Coles Avenue Headquarters KMAG (8202 AU) Chicago 49, Illinois APO 102, San Francisco, California Albert S. Friedlander Lt. Col. Robert S. Hermann 8736 Sunset Boulevard 0.S.I. Procurement Division Los Angeles 46, California APO 633, New York, New York Capt. William S. Fulton Bernard Hirschhorn 426 Mobile Lane 163-18 Jamaica Avenue Charlottesville, Virginia Jamaica, New York The Judge Advocate Journal 55 William J. Horrigan Col. Doane F. Kiechel 445 Park Avenue 3200 South 29th Street New York 22, New York Lincoln 2, Nebraska Col. Charles S. Hoult Murray A. Kivitz SJA Section, 2d Log Comd Investment Building Ft. Polk, Louisiana Washington 5, D. C. Capt. Seymour Hozore Col. Robert L. Lancefield 33-51 73rd Street OJAG, Dept. of the Army Jackson Heights 72, New York The Pentagon Washington 25, D. C. Maj. Dugald W. Hudson Office 'Of the Staff Judge Advocate Lt. Charles J. Lipton Hqs. 7th Inf. Div. Office of Staff Judge Advocate APO 7, San Francisco, California Hq., Ogden A.M.A. Maj. Robert T. Hummer Hill AFB, Utah 1649 E. 50th St., Apt. lOA Cdr. C. E. Lundin, USN Chicago 15, Illinois Legal Office Philip Huss, Jr. Fifth Naval District Lewis and Drew Law Offices Naval Base 900 Farmers Bank Building Norfolk 11, Virginia Pittsburgh 22, Pennsylvania Col. John W. MacLeod Lt. Col. Reginald E. Ivory 2910 Landover Street U. S. Army Claims Office, Paris Alexandria, Virginia APO 163, New York, New York Weldon L. Maddox Richard 0. Jones 20 E. Lexington Street 1022 Union Center Building Baltimore 2, Maryland Wichita 2, Kansas Keith Masters Maj. Gen. Stanley W. Jones Prudential Plaza 2 - 4200 Columbia Pike Chicago 1, Illinois Arlington, Virginia Col. Robert H. McCaw Henry Kaiser Office of TJAG 1701 K Street, N. W. Department of the Army Washington, D. C. Washington 25, D. C. Maj. Irvin M. Kent Maj. D. S. Meredith, Jr. JA Sec., Hq. 1st Army First National Bank Building New York 4, New York L'Ongview, Texas Brig. Gen. Herbert M. Kidner Robert 0. Muller 3 Fort Hunt Road 1805 Holly Street Alexandria, Virginia Anderson, South Carolina 56 The Judge Advocate Journal Col. Edward J. Murphy, Jr. Col. C. E. Reitzel Hq. USATC, INF Judge Advocate Division Fort Dix, New Jersey Hq., USAREUR APO 403, New York, New York Capt. Eugene J. Murphy 17 Hancock Street Brig. Gen. Allen W. Rigsby Boston 14, Massachusetts SAC Headquarters, Offutt Air Force Base Col. James L. Nolan Omaha, Nebraska Staff Judge Advocate Norman Roth Fort Lee, Virginia 141 Broadway New York 6, New York Joseph P. O'Gara 713 First Natl. Bank Bldg. Carroll R. Runy0n Lincoln, Nebraska 702 Florida Theatre Building St. Petersburg, Florida Louis A. Otto, Jr. Lt. Robert F. Sagle c/o Attorney General 1630 Jonquil Street, N. W. P. 0. Box 1175 Washington 12, D. C. Agana, Guam E. Bernard Schlegel David M. Owens Market St. National Bank Building 23 Halifax Street Market and Juniper Streets Boston, Massachusetts Philadelphia 7, Pennsylvania Lt. Charles L. Parker Wendell D. Sellers Apt. 2D Holley Chambers c/o Pickrel, Schaeffer and Ebeling 33 Washington Square West 14th Floor, 3rd National Building New York 11, New York Dayton 2, Ohio J. Gibson Semmes George A. Pavlik Walker Building Vice Consul Washington 5, D. C. United States Consulate General Toronto, Ontario, Canada Col. Clifford A. Sheldon 1624 Eye Street, N. W. Raymond L. Perkins, Jr. Washington, D. C. Tel Aviv-FSO Col. Harold D. Shrader Department of State 205 Sherman Avenue Washington 25, D. C. Fort Leavenworth, Kansas David S. Pochis Capt. Billy J. Shuman 135 S. LaSalle Street 4421 31st Street, S., Apt. 10 Chicago 3, Illinois Arlington 6, Virginia Lt. Walter B. Raushenbush Capt. John A. Smith, Jr. 110 E. Main Street 3118 E. Shadowlawn, N. E. Madison 3, Wiseonsin Atlanta 5, Georgia The Judge Advocate Journal 57 Robert T. Smith Robert E. Trevethan 910 17th Street, N. W. Referee in Bankruptcy Washington 6, D. C. Federal Building Lt. Col. Edward L. Stevens Bridgeport, Connecticut 4906 Old Dominion Drive Harold F. Tucker Arlington, Virginia 48 Cornelia Street Lt. Col. Arthur J. Sullivan Plattsburg, New Y.ork 3543 A South Stafford Street Arlington 6, Virginia Job D. Turner, Jr. Suite 404 First National Bank Bldg. Maj. Herbert C. Swigert Lexington, Kentucky Hq. 2d Air Division, USAFE APO 616, New York, New York Lt. Col. Calvin M. Vos Norbert A. Theodore Hq. 7100 Support Wing 204 Palmetto Building APO 633, New York, New York Columbia, South Carolina Harold L. Wertheimer Alfred Thomas 312 Schwehm Building 185 Devonshire Street Atlantic City, New Jersey Boston 10, Massachusetts Lt. Mark S. Tolle Thomas A. Wheat Box 839 P. 0. Box 890 Liberty, Texas Ellington AFB, Texas Benton C. Tolley, Jr. Col. Howard Russell Whipple 6000 W oodacres Drive 2862 South Buchanan Street Washington 16, D. C. Arlington, Virginia NEW MEMBERS Bruce P. Badley Robert E. Doane Assistant Attorney General Mackiernan & Doane Capitol Building 73 Tremont Street Cheyenne, Wyoming Boston 8, Mass. David M. Bloomberg Blake Downie 740 Seybold Building Donaghey Building Miami, Florida Little Rock, Arkansas Pvt. Hillard Chapnick Lt. A. Fred Freedman, 1442 South 3rd Street Office of the Staff Judge Advocate Louisville, Kentucky Chanute AFB, Illinois Lt. Edward C. Cody Lt. William L. Garwood Box 535, Hq. Sq. The Judge Advocate General's 5th AB Gp. School Travis AFB, California Charlottesville, Virginia 58 The Judge Advocate Journal Robert L. Gee Lt. Col. Robert 0. Rollman 718 Majestic Building Hq., 313th Air Division, Box H Denver, Colorado APO 239, San Francisco, Maj. L. Archie Harris California Hq. Sq. Sec., 5th Air Base Gp. Lt. Daniel L. Rotenberg Travis AFB, California Hq. Sqn. Sec., 5th AB Gp. George B. Harris, Jr. Box 534, Travis AFB, California 403 Stuart Court Apts. Eulan Snyder Richmond 20, Virginia 3023 14th St., N. W., Apt. 615 Col: M. W. Hazlehurst Washington 9, D. C. Hq. Bay Area Army Terminal Center Fort Mason, San Francisco, Robert J. Swan California Stark Federal Building Canton, Ohio Capt. Everett G. Hopson Office of the Staff Judge Adv. Hq., Capt. James Taylor, Jr. Strategic Air Command 246 Fairchild Circle Offutt AFB, Nebraska Offutt AFB, Nebraska Philip E. Morin W. S. Tyson 44 School Street Department of the Navy Boston, Massachusetts Room 4 C 828 Pentagon Marvin Henry Morse Washington 25, D. C. 901 Hoffman Building Louisville 2, Kentucky Arthur Venitt 163-18 Jamaica Avenue Cecil B. Nance, Jr. Jamaica 32, New York Box 626 West Memphis, Arkansas Capt. Philip A. Walker Alfred Olsen Office of JAG, Navy Department 421 - 99th Street Washington 25, D. C. Brooklyn 9, New York Lt. Ralph T. Welch Maj. Alexander J. Palenscar, Jr. Box 673 Office of the Staff Judge Advocate Scott Air Force Base, Illinois 1607th Air Transport Wing (H) Dover AFB, Delaware Capt. Marcus Leonard Whitford, Capt. Robert D. Powers, Jr. USN 3905 Vacation Lane AOSD (MP&R) Room 2A 870 Arlington, Virginia The Pentagon Washington 25, D. C. Capt. Thomas G. Roberts Staff Judge Advocate Lt. Joseph N. Wiltgen, 3911th Air Base Group Base Legal Office APO 197, New York, New York Offutt AFB, Nebraska