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THE ARMY LAWYER Headquarters, Department of the Army THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-360 March 2003 Articles The Integrated Active and Reserve Division: Background, Legal Foundation, and the Role of Judge Advocates Major Christopher Behan Making the Appellate Record: A Trial Defense Attorney’s Guide to Preserving Objections—the Why and How Lieutenant Colonel Patricia A. Ham TJAGSA Practice Notes Faculty, The Judge Advocate General’s School, U.S. Army Administrative and Civil Law Note (New Army Regulation on Fatal Training and Operational Accident Collateral Investigations and Family Presentations) USALSA Report United States Army Legal Services Agency Litigation Division Notes (Trial Counsel’s Pre-Referral Subpoena Puts Bank at Risk; Court Strikes Down Post-Award Attempt to Make a Good Procurement Better; Case Note: Federal Court Keeps Army Out of Custody Fight) CLE News Current Materials of Interest Editor, Captain Joshua B. Stanton Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly ed. 2000) and Military Citation (TJAGSA, 7th ed. 2001). Manuscripts will be by The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, returned upon specific request. No compensation can be paid for articles. for the official use of Army lawyers in the performance of their legal responsibilities. Individual paid subscriptions to The Army Lawyer are avail- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the able for $45.00 each ($63.00 foreign) per year, periodical postage paid at Char- Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- lottesville, Virginia, and additional mailing offices (see subscription form on the ment Periodicals. The Army Lawyer is also available in the Judge Advocate inside back cover). POSTMASTER: Send any address changes to The Judge General’s Corps electronic reference library and can be accessed on the World Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL- Wide Web by registered users at http://www.jagcnet.army.mil. P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of The Judge Advocate General Address changes for official channels distribution: Provide changes to the or the Department of the Army. Masculine or feminine pronouns appearing in Editor, The Army Lawyer, TJAGSA, 600 Massie Road, ATTN: JAGS-ADL-P, this pamphlet refer to both genders unless the context indicates another use. Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978, ext. 396 or electronic mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian authors on topics of interest to military lawyers. Articles should be submitted via elec- Issues may be cited as ARMY LAW., [date], at [page number]. tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL-P, Charlottesville, Virginia 22903- 1781. Articles should follow The Bluebook, A Uniform System of Citation (17th Articles The Integrated Active and Reserve Division: Background, Legal Foundation, and the Role of Judge Advocates ............................... 1 Major Christopher Behan Making the Appellate Record: A Trial Defense Attorney’s Guide to Preserving Objections—the Why and How ............................ 10 Lieutenant Colonel Patricia A. Ham TJAGSA Practice Note Faculty, The Judge Advocate General’s School, U.S. Army Administrative and Civil Law Note (New Army Regulation on Fatal Training and Operational Accident Collateral Investigations and Family Presentations)........................................................................................................................................................... 32 USALSA Report United States Army Legal Services Agency Litigation Division Notes Trial Counsel’s Pre-Referral Subpoena Puts Bank at Risk......................................................................................................... 35 Court Strikes Down Post-Award Attempt to Make a Good Procurement Better........................................................................ 38 Case Note: Federal Court Keeps Army Out of Custody Fight ................................................................................................. 40 CLE News......................................................................................................................................................................................... 43 Current Materials of Interest ......................................................................................................................................................... 53 Individual Paid Subscriptions to The Army Lawyer ................................................................................................ Inside Back Cover The Integrated Active and Reserve Division: Background, Legal Foundation, and the Role of Judge Advocates Major Christopher Behan1 Student, 51st Graduate Course The Judge Advocate General’s School Charlottesville, Virginia Introduction History of the Integrated Divisions On 4 and 5 June 1999, the Army activated its first integrated The United States Army has three major components: the Active and Reserve Component combat divisions: the 7th Active Component, the U.S. Army Reserve, and the National Infantry Division (Light), with headquarters at Fort Carson, Guard of the United States.6 Members of the National Guard of Colorado;2 and the 24th Infantry Division (Mechanized), with the United States also serve a dual role as members of their headquarters at Fort Riley, Kansas.3 Although these units bear state’s National Guard under control of the state governors and the designations of some of the most storied divisions in Army adjutants general (TAG).7 Although the Army’s leadership has history,4 they are unique organizations that break new ground in made several efforts to integrate the three components into a integrating the Army’s active and Reserve combat units. Each cohesive whole, the efforts have not always been successful. division is commanded by an active duty major general and has The components have often competed for resources, roles, and an active duty headquarters staff; however, the combat power training,8 notwithstanding official Army rhetoric to the con- of each division consists entirely of Army National Guard trary.9 enhanced-readiness combat brigades.5 Army leaders have made a number of efforts to integrate the This article discusses the history and legal basis for the inte- Active Component and the National Guard more seamlessly grated divisions, outlines their organization and structure, and over the past quarter century. In 1973, following the Vietnam analyzes the role of judge advocates in these new units. War, the Army adopted the “Total Force” policy, a force restructuring that attempted to “integrate the active duty, 1. The author served as Chief, Administrative and Operational Law, 24th Infantry Division (Mechanized), from June 2001 to June 2002. 2. Fort Carson Integrates Active Duty and National Guard, ASSOCIATED PRESS STATE & LOCAL WIRE, June 5, 1999, LEXIS, News Group File. 3. Daniel Hobson, 24th Infantry Division Reactivated, ARMY NEWS SERVICE (June 11, 1999), at http://www.dtic.mil/armylink/news/Jun1999/a1999062424thid.html. 4. The 7th Infantry Division first fought in World War I. The “Bayonet Division” also fought with distinction in World War II and Korea. In the 1980s, the 7th Infantry Division became the Army’s first true light infantry division. Before being deactivated in 1994, the division participated in actions in Honduras, Panama, and the Los Angeles riots. Seventh Infantry Division, Bayonets, at http://www.carson.army.mil/7ID/7ID.htm (last modified Nov. 15, 2001). The 24th Infantry Divi- sion, “The Victory Division,” was the first Army unit to fire hostile shots in the Pacific during World War II—at Pearl Harbor. Elements of the 24th Infantry Division, including the well-known Task Force Smith, were the first to fight in Korea. In the Gulf War, the 24th Infantry Division penetrated deep into the heart of Iraq as part of General Schwarzkopf’s famous “left hook” maneuver, carrying out what has been called “the longest cavalry charge in history.” U.S. 24th Infantry Division Asso- ciation, Victory Division, at http://home.att.net/∼victory24/history.htm (last visited Jan. 6, 2003). 5. The 24th Infantry Division has three mechanized infantry brigades: the 30th Heavy Separate Brigade (HSB) in North Carolina, the 218th HSB in South Carolina, and the 48th HSB in Georgia. The 7th Infantry Division has three light infantry brigades: the 45th Separate Infantry Brigade (SIB) in Oklahoma, the 39th SIB in Arkansas, and the 41st SIB in Oregon. U.S. Dep’t of Army, News Release No. 99-028, Unit Designation of Two New U.S. Army Active Component/Army National Guard Integrated Divisions (7 Apr. 1999) [hereinafter News Release No. 99-028], available at http://www.dtic.mil/armylink/news/Apr1999/r19990406greentop.html. The Army created the enhanced readiness brigades in 1993 to serve as a trained and ready force of National Guard units that could augment and reinforce active duty in the event of two major and nearly simultaneous regional conflicts. GEN. ACCOUNTING OFFICE, ARMY NATIONAL GUARD: COMBAT BRIGADES’ ABILITY TO BE READY FOR WAR IN 90 DAYS IS UNCERTAIN, REPORT NO. GAO/NSIAD
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