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The Army Lawyer \ rJ THE ARMY Headquarters, Department of the Army Department of the Army Pamphlet 27-50-192 December 1988 Table of Contents TJAG Memorandum Tenth Adversary Message to TDS Personnel .................................... 3 Articles Legality of the “Safe-Sex’: Order to Soldiers Having AIDS. ........................................... 4 Major Eugene R. Milhizer Common Sense and Article 9: A Uniform Approach to Automobile Repossessions.. ..................... 8 Captain Danyll K. Jones USAISAReport ................................................................................. 14 United States Army Legal Services Agency The Advocate for Military Defense Counsel DADNotes .................................................................................. 14 The Demise of the Burton Demand Prong; Murphy’s Law: The Rating ChainCtill an Issue Regarding Challenges of Court Members?; The Providence Inquiry and Rule for Courts-Martial 1001(b)(4) Government Appellate Division Note ............................................................. 18 Review of Courts-Martialby the Supreme Court of the United States-Miles to Go Before We Sleep Captain Pam’ck J. Cunningham (USAR) Trial Defense Service Note. ....................................................................... 25 The Commander’s Role in Ordering Urinalysis Testing Captain Robert A. Mast Clerk of Court Notes............................................................................ 28 Court-Martial Processing Times;A.C.M.R.Caseload, FY 1986-1988; Court-Martial and Nonjudicial Punishmqnt Rates Per Thousand TJAGSA Practice Notes .......................................................................... 29 Instructors, The Judge Advocate General’sSchool Criminal Law Notes ............................................................................ 29 n! Larceny of a Debt: United States v. Mervine Revisited; Quick and the Confrontation Clause; The Military’s Anomalous Kidnapping Laws;Update: Rights Warning Requirements in the Military; Solorio is Retroactive Contract Law Note ............................................................................. 35 Minor Construction-New Authority to Renovate Facilities? Legal Assistance Items .......................................................................... 36 Legal Assistance Mailout 88-4; Consumer Law Notes (Coping with the Post-Christmas /- Credit,Blues, Consumer Bills in Congress); Family Law Note (Adoption Expense Reimbursement Program); Professional ResponsibilityNote (Illinois Lawyer Suspended for Failure to Report Misconduct); Tan Notes (Congress Approves New Tax Act, I Deferral of Gain Unavailable Upon Purchase of Membership in Retirement Home, Welfare Reform Legislation Passed) Administrative and Civil Law Note ............................................................... 40 Digest of Opinion of The Judge Advocate General: Standards of Conduct Claims Repbrt............................................................................... _.... 40 United Stares Army Claims Service Case Study: Evaluating Damages in a Medical Malpractice Claim .................................... 40 Marilyn C. Byczek Claim Notes......................... ).....,........v..., ............... ..................... 44 Personnel Claims Notes (Claims for Unusable Airline Tickets, Missing Inventory Line Items and Obvious Damage at Delivery); Management Notes (STANFINS, Forwarding Article 139 Fila) criminal Law Notes ................ ..,,...,....................................45 . Criminal Law Divkion, OTJAG Reserve Components and Command Influence; Kiddy Porn; Elimination of Tower .. Amendment . Guard and Reserve Affairs Items ................................................................... 45 Judge Advocate Guard adReserve Affairs Department, TJAGSA RC Quotas for Resident Graduate Course; Notice AY 89 %-Site Changes CLE News.. .................... -.............;. ...................................... 46 Current Material of Interest ....................................................................... 48 Cumulative Index, November 1978-December 1988 Subject Index .................................................................................. 50 fl Author Index .............,......................b.. ................................. Index of Legal Assistance Items, January 1988-December 1988 ................................. ,.....97 Index of Policy Letters and Messages from The Judge Advocate Genera Index of The 3udge Advocate General's Oplnfons, Jan- 1988-December 1988........................................ 98 \ , I The Army Lawyer (ISSN 0364-1287) ' < I Edltor Captain Matthew E. Winter DCA RFT, or ASCII format. Articles should follow A Unfjiorm System of ' The Army hwyer is published monthly by The Judge Advocate Oener­ Citation (14th ed. 1986) and Military Citation (TJAGSA, July 1988). d's School for the official use of Amy lawyers in the performance of their Manuscripb yill be returned only upon specific request. No compensation legal responsibilities. The opinions expressed by the authors in the articles, can be paid for articles. however, do not ndlyreflect the view of The Judge Advocate Oener­ The Army Luwyer articles arc indexed in the Index to Legal Periodicals. d or the Department of the Army. Masculine or feminine pronouns ap­ the Current Law Index, the Legal Resources Index. and the Index to U.S. pearing in this pamphlet refer to both genders unless the context indicates Government Periodicals mother use. Individual paid subscriptions arc available through the Superintendent neArmy Luwyer welcomes articles on topics of interest to military law­ of Documents, U.S.Government Printing office, Washington, D.C. 20402. ycrs. Articles ahodd be typed doubled spaced and submitted to: Editor, Issues may be cited as The Army Lawyer, [date], at [page number]. The Army hwyer. The Judge Advocate General's School, U.S.Army, Second-class postage paid at Charlottesville, VA and additional mailing Charlottesville, Virginia 22903-1781. Footnotes, if included, should be offices. POSTMASTER: Send address changes to The Judge Advocate typed double-spaced on a separate sheet. Articles should also be submitted General's School, U.S.Army, Attn: JAGSZDDL, Charlotkville, VA on floppy disks, and should bc in either Enable, Wordperfect, MultiMate, 22903-1781. DEPARTMENT OF 3' OfFlCE OF THE ,JUDGE ADVOCATE GENERAL WASHINGTON, DC 20310.2P00 ATTENTION dC DAJALZA 21 October 1988 MEMORANDUM 'FOR: ALL TRIAL DEFENSE SERVICE PERSONNEL SUBJECT: Tenth Anniversary Message 1. This year marks the tenth anniversary of the founding of the United States Army Trial Defense Service (TDS). Since 1978 TDS has developed into a dynamic, flexible, and efficient organization dedicated to providing top quality representation to service members in any forum. It has clearly achieved its goal of ensuring that soldiers and commanders understand that the Army's defense counsel are independent of command control and deserve the full confidence of their clients. ' 2.' I extend my personal thanks and congratulations to all the , attorneys and support personnel who have served and are serving in TDS. I am wry proud of.the contributions that the attorneys and support personnel of TDS have made to the Army. HUGHw- R. OVERHOLT Major General, USA The Judge Advocate General DECEMBER 1988 THE ARMY lAWYER 6 DA PAM 27-5&192. 3 Legality of the “Safe-Sex” Order to Soldiers Having AIDS Major Eugene R Milhizer Instructor, Criminal Law Division, TJAGSA c Introduction Manning. The judge dismissed a disobedience charge against the accused for violating the “safe-sex” order be­ A cornerstone of ’the Army’s AIDS l policy is the re­ quirement for commanders to formally counsel soldiers cause it had an insufficient military nexus and was overly was who tat positive for the HIV antibody. 2 This counselling broad.’ The judge’s based primarily on includes an order to inform of the an application of United States v. Roach. In Roach, the soldier’s diagnosed conation prior to engaging in intimate Coast Guard Court Of Military Review held that an ,order sexual behavior and not to engage in unprotected sexual re­ not to consume alcoholic beverages WBS an unlawful order, lations. 3 The regulation provides that soldiers who willfully as it had an inadequate connection to a military duty justi­ disobey this order may be considered for administrative or fying its enforcement. This article will specifically address disciplinary action. the applicability of Roach to the “safe-sex” order, ds well as the lawfulness of the “safe-sex” order in general. The legality of such an order-the so-called “safe-sex” order-has never been directly reviewed by the military ap pellate courts. Thus far, several service members have been United States‘v. Roach convicted by court-martial for violating the “safe sex” or­ Seaman Roach, a crewmember of the USCGC pependa­ der, but their cases have not yet been decided on appeal.5 ble, had a history of alcohol abuse and alcohol related In addition, Commentators have gmdlY concluded that misconduct. IO early 1985, he was counselled on at least the order is lawful. three occasions for returning to his ship in an intoxicated In September 1988, however, a military judge reached a condition. He was later screened and recommended for contrary result in the court-martial of Private E-1 David E. attendance at mandatory Alcohol Anonymous meetings. l2 I AIDS is the acronym for acquired immunodeficiency syndrome. A person with AIDS has the human immunodeficiency virus (HIV), which damages the body’s
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