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The Army Lawyer (Sep I PUBLISHED BY: THE JUDGE ADVOCATE GENERAL‘S SCHOOL CHARLOTTESVILLE, VA. 22901 MILITARY AFFAIRS NOW ADMINISTRATIVE LAW DIVISION Effective 16 August 1971, Major General bear the symbol JAGA. General Prugh ex­ George S. Prugh directed that the Military pressed the view that non-JAGC members of Affairs Division, Office of The Judge Advo­ administrative staff elements could more read­ ate General, be redesignated as the Adminis­ ily understand the type of legal duties per­ trative Law Division. Opinions from the Ad­ formed by the Division if the name were ministrative Law Division Will continue to changed. GENERAL PRUGH SPEAKS TO MILITARY JUDGES L On 30 July 1971 Major General George S. In the military service our problem takes Prugh spoke at the graduation of the 10th on additional complexity as we change the Military Judge Course of The Judge Advo­ statement to read, “the military lawyer be­ cate General’s School. The following is the comes a military judge.” It is upon the mili­ substance of his remarks : tary aspects that I would like to focus. Neither the UCMJ nor the MCM gives us THE LAWYER BECOMES A JUDGE much help in looking at the makeup, either desired or required, of a military judge. Just making this statement raises several Superficially, the military judge’s require­ interesting thoughts. It suggests a transfor­ ments are to be a commissioned officer, a mation from one state of being to another and member of an appropriate bar, and certified quite a different one. It suggests some special as qualified to be a military judge by his qualifications required in the judge but not JAG. found in every lawyer. It suggests a question But obviously this is only the beginning as to what these special qualifications might point, because it tells us nothing of what the be, and simultaneously it suggests there may desired personal qualifications are. We can be some common characteristics which need get a hint of these by looking at the judge’s defining. It raises the further question duties. Many qualifications are quite well whether the new status as a judge has any known because they are typical of all judges, permanence or is only transitory and can be military or otherwise. Technical knowledge, changed with the assignment of new and dif­ good judgment, sound reasoning, patience, ferent duties. understanding, intellectual strength, psycho­ logical comprehension, clarity of expression -all are important. Some duties are peculiar Distribution of The Army Lawyer is one to the military, however, and point to addi­ to each active duty Army judge advocate and tional qualifications. For instance, not only Department of the Army civilian attorney. must he preside, but the Manual prescribes If your office is not receiving sufficient copies he must insure that the proceedings are con­ of The Army Lawyer to make this distribution, ducted in a dignified, milituw manner. I take please write the Editor, The Army Lawyer this “military” to mean in an orderly way, and an adjustment in the distribution to your not at all the heel-clicking, square-cornered . installation will be made. style, but a business-like, solemn, carefully I ,I The Army Lawyer 2 l CONTENTS and professionally operated forum. The judge I must not only try the case “faithfully and I 1 General Prugh Speaks To Military Judges impartially according to his conscience” but 1 Military Affairs Now Administrative Law also according to the “laws applicable to trials Division by court-martial.” This he swears to do. 4 The Military Claims Act: Application of Com­ At the outset, then, it is apparent that the parative Negligence in Gennany military judge must have some particular 6 Conscientious Objectors and Courts-Martial: knowledge of military matters in order to sit Some Recent Developments Code Committee in a court-martial. But even this leaves us Reports on UCMJ Changes Under Considera­ dissatisfied in our search for the military tion judiciary’s criteria of membership. In any 9 Report From the U.S. Army Judiciary case, we can note that the military judge should be familiar with the general conditions 11 Medical Care Recovery Act Items of the military community, just as a civilian 12 Determination of Bad Time judge is expected to know the general condi­ 13 Some Fundamentals of a Marine Casualty In­ tions of his community, and the military vestigation judge must know military law and manners in addition to that required of civilian judges. 16 Procurement Legal Service Clearly the judge must be knowledgeable 19 Personnel Actions in the law, the rules of his craft. He must 21 Current Materials of Interest have unimpeachable integrity, morality, and honesty-characteristics in a judge which are The Judge Advocate General at best relative matters but at worst are Major General George S. Prugh destructive of any judicial system. He must be knowledgeable of human nature and wise The Assistant Judge Advocate General in the ways of men and women, knowledge Major General Harold E. Parker difficult enough for any of us to master. He The Commandant, The Judge Advocate General’s must have the moral courage to act and de­ School cide as his conscience and intellect dictate. Colonel John Jay Douglass Editorial .Board But there are other criteria, some quite Colonel William S. Fulton, Jr. negative. For example, the military judge Major James A. Endicott, Jr. can no longer be an advocate. He must shift Editor gears from the lawyer’s role where he argues Captain Stephen L. Buescher for adoption of a particular point of view. Articles Editor Here, obviously, we have room to inquire into Captain Donald N. Zihn the special characteristics of each party, the lawyer and the judge. The one must have the The Army Lawyer is published monthly by The insight to seize upon the most favorable sup Judge Advocate General’s School. By-lined articles porting fact and legal point; the other, to be represent the opinions of the authors and do not able to see through the oral haze to the truth necessarily reflect the views of The Judge Advocate Is General or the Department of the Army. Manuscripts of the matter. But what about truth? there on topics of interest to military lawyers are invited a place for truth in the procedure at all? to: Editor, The Amy Lawyer, The Judge Advocate Twenty years ago I unhesitatingly and prob­ General’s School, Charlottesville, Virginia 22901. ably naively said, “yes,” but today I’m chal­ Manuscripts will be returned only upon specific re­ lenged and seem to be in the minority when I quest. No compensation can be paid to authors for expect judges to search for truth. To the articles published. Funds for printing this publica­ tion were approved by Headquarters, Department of counsel, truth often is what his client says it the Army, 26 May 1971. is. To the judge, truth seems frequently to be I The Army Lawyer 8 forgotten altogether, victim of his search for and fair system capable of adjudicating measurement of whether a reasonable doubt criminal matters as well. As General West­ exists based upon the evidence presented. Of moreland has said, "an unfair or unjust cor­ course, he is forbidden by his own act to hin­ rection never promotes the development of der the ascertainment of truth by counsel, but discipline." Balancing discipline and justice is if he conceives his role merely as an umpire a mistake - the two are inseparable. To sit between the two sides, the prosecution and in judgment in criminal cases, however, poses the defense, then is truth even a considera­ few unfamiliar problems for the military tion for the judge. judge. It is in the disciplinary area where he I personally do not agree with this restrict­ quickly runs into difficulty unless he has an ed role of the military judge. I believe he has understanding of leadership, military author­ an obligation to apply the code where and ity, and discipline. This would be unfamiliar when it is legally proper to do so, regardless to the civilian transplanted to a military of his personal approval or disapproval of bench. particular procedures, provisions, -or even offenses. While he cannot be the prosecutor, I take it as an essential that the military neither may he be the defender; while he judge know and understand the roles of dis­ must avoid even a controversial manner and cipline, leadership, and military authority, tone, he need not sit passively by while op­ in the same manner as he must how the law, portunity to clear up an obscurity slips by, possess good judgment, and be familiar with ignored by counsel. Especially if he is to make the circumstances of his community. This findings and sentence, the military judge is knowledge of discipline, leadership, and mili­ not only free but obliged to inquire of wit­ tary authority does not come easily or quick­ nesses, and to call new witnesses, to assist him in discovering the truth pertinent to the ly. It requires diligent study of the who's, charges, and responsibility rests heavily upon what's, and why's. He will thereby recognize the military judge to cure the creeping rot proper and improper application of leader­ of delay by doing all proper to expediate our ship principles, use of discipline as an effec­ processes. tive device in furthering a command's mis­ sion, and appropriate divisions of military Another significant element in the military authority. judiciary, it seeems to me, is the unique role of military authority, distributed as it is The summary of the few points we've been through officers generally, commanders and able to examine causes me to consider at least noncommissioned officers specifically.
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