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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 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 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. That these three criteria as additional for becom­ it is a necessity is not doubted by anyone con­ ing a military judge, beyond what would be templating the government and deployment found in a lawyer or civilian judge. of hundreds of thousands of young men ­ ed and equipped to fight, furnished with in­ 1. The military judge must have consider­ dividual , and having ready access to able knowledge of the military life and mili­ other dangerous weapons and material tary law. without civilian counterpart. The authors of 2. He must also have considerable exper­ the Constitution and the first Congress itself ience in or study of the principles and prob­ where acutely aware of the need for authori­ lems of leadership for nco's and officers. tative control over the armed forces ao that they will be well disciplined. From America's 3. Finally, he must consider himself not very beginnings, the military law as enacted merely as an umpire but as a responsible by Congress struggled to support discipline participant in the process of governing and and at the same time to provide an orderly regulating the land and naval forces. The Army Lawyer 4 - 7’ These three characteristics are not wel­ charged to him. In this I’ll remain steadfastly corned. I’m sure, by those who see military at the side of the military judge. justice as something simple and uncompli­ The military judge is evolving figure, cated, like a military march. Neither will they an one whose part in the whole scheme of mili­ be welcomed by those who see an easy transi­ tary law is still not perfectly understood. I tion from civilian to military legal processes. pledge my support to the military judges in On the other extreme, some may suggest that achieving a better understanding of their the military judge is a mere extension of com­ work; I ask only a full recognition by the mand, I reject that out of hand. Knowledge military judges of the special and unique by the judge of the Army’s need for and features of being a judge within a large body methods of achieving discipline, leadership, of fully armed and frequently transplanted and military authority does not mean that the young men. In the atmosphere of mutual judge should or would forsake his independ­ understanding and cooperation we can to­ ent role, reliance upon his own judgment, and gether gain public and military confidence in the unfettered application of his own author­ our enlightened military system of law and ity in dealing with those matters properly justice.

THE MILITARY CLAIMS ACT: APPLICATION OF COMPARATIVE NEGLIGENCE IN GERMANY Bg Lieutenant Colonel William R. Mullins, Chief, Foreign Claims Division, US.Arm8 Chim Service. Public Law 90-522, 26 September 1968, where comparative negligence is involved, amended the Military Claims Act (10 U.S.C. the process is essentially subjective. The 2733) to provide that local law should be ap­ German courts base their findings upon the plied in determining the effect of a claimant‘s particular facts of each case, and in conse­ negligence on his right to recover damages. quence different courts arrive at different re­ The amendment has been implemented by sults in cases where the facts are essentially paragraph llb, AR 27-21.The effect of this the same. change in the law is to make the doctrine In adjudicating cases under the Military of comparative negligence applicable to all Claims Act, claims approving authorities cases under the Military Claims Act arising should first analyze all the facts, including in Germany. any violations of traffic law, safety regula­ Under comparative negligence principles, tions or other rules and regulations. Most contributory negligence does not bar recovery cases fall into one of three major categories: but merely affects the amount recoverable. In the first, one party is entirely responsible As applied in Germany comparative negli­ for the accident, whereupon a claim should be gence means that in the case of an incident paid in full or denied completely depending or accident, where both parties are negligent, upon whether the government agent or the the responsibility assigned to each party for claimant is at fault. In the second, both par­ causing the accident or incident is determined ties are at fault, in which case the claimant is and apportioned in fractions or a percentage ; entitled to 50% or yl of the proven damages. and each party Is entitled to recover from the In the third, one party is primarily liable, other that proportion of the damages equal to but the other party is guilty of some negli­ the fraction or percentage assigned to him. gence which contributed to the incident. In these cases the usual division of liability is Though the general principles of negligence on a ?&%, v4-x,or 4h-V~basis, depending law are applied in the adjudication of cases upon the seriousness of the contributory 5 The Army Lawyer negligence. If, however, the degree of negli­ est degree of care’’ as opposed to “ordinary gence of one party, is slight as compared with care.” that of the other, it map be ignored in ad­ judicating the claim, in which case the other In any event, under either method of pro­ party is held entirely responsible. ceeding (ordinary tort law or the holder’s liability theory), the contributory negligence A complicating factor in traffic accident of the claimant reduces his claim in propor­ cases is that, under the German Road Traffic tion to the damages he causes. Thus, as a Law, an injured person has the election of practical matter, in adjudicating cases under proceeding under ordinary tort law, where the Military Claims Act, holder’s liability is negligence on the part of the person causing relevant in two respects: (1) when placing the damage must be proved, subject to a per­ liability upon the Government in cases where centage decrease in the award for any con­ evidence of negligence on the part of its driv­ er is weak or non-existent, and (2) when the tributory negligence, or under the “holder’s “operational risk” theory is used to determine liability” theory. This latter theory makes the the degree of comparative negligence. As an holder of a motor vehicle liable for damages example, should a case arise involving a col­ he causes, on the premise that the owner as­ lision between an Army truck and a passen­ sumes the operational risk when he places a ger car, where it has been established that vehicle on the road. The “holder” may or may both drivers were equally at fault, the per­ not be the owner. A person who has control, centage of liability chargeable to the Govern­ (pays for a vehicle’s maintenance, insurance, ment would not be Yz-lh,as would normally repairs, etc.) though legal title is invested in be the case, but Y3-9’3 or %5d/, because the someone else, may be the “holder.” “operational risk” of the truck is greater than the passenger car. On the other hand To avoid liability under this theory, the if the passenger vehicle was being operated burden of proof is on the holder to show at a grossly excessive speed the “operational that, as to him, the accident was unavoidable risk” attached to it would equal the “opera­ and that he or his agent exercised the “high­ tional risk” of a slow-moving truck.

CONSCIENTIOUS OBJECTORS AND COURTS-MARTIAL: SOME RECENT DEVELOPMENTS By Captain Stephen L. Buescher, Editor, The Am3LuwBer Following denial of an application for dis­ in a plane used in Vietnam, following denial as a , the next of his application for discharge or assignment step for the militant objector-service member to non-combatant duties. Noyd contended that may well be to disobey orders rather than to the denial of his conscientious objector appli­ return to duty. At trial, his claim of conscien­ cation by the Secretary of the Air Force was tious objection will undoubtedly be raised in unlawful and that the law officer and board defense of his disobedience. The treatment of of review had mistakenly ruled that the conscientious objection and denial of an ap­ court-martial lacked jurisdiction to consider plication for discharge as a defense in courts­ the issue. In deciding that the law officer had, martial continues to be troublesome. in fact, considered the legality of the Secre­ tary’s decision and that his decision was cor­ The starting point for any discussion of rect due to Noyd’s selective objection, the conscientious objection and courts-martial is Court of Military Appeals set forth guide­ United States v. Noyd, 40 C.M.R. 195 (1969). lines for treatment of this subject. They This was the famous case of the Air Force stated that since relief for in-service con­ officer who refused an order to train a pilot scientious objectors is a privilege rather than The Army Lawyer 6 a matter of right, “the obligation to obey a 1969) (application filed, regulations not fol­ lawful order cannot be, and is not, as a mat­ lowed, claim was a defense to disobedience) ; ter of law, terminated on the mere occurrence MueEEer v. Brown, 40 C.M.R. 246 (1969) (no of a condition or circumstance that might court-martial pending, court would not review justify separation from the service,” i. e., legality of denial of application) ;Lee v. Pear­ conscientious objection. Rather, the obliga­ son, 40 C.M.R. 257 (1969) (once application tion to obey continues until the individual is denied, have duty to obey lawful order) ; US. discharged. Thus, conscientious objection v. Kent, 40 C.M.R. 404 (ACMR 1969) (no ap­ alone is not a defense to disobedience of plication pending, must obey orders). orders, no matter how sincere or well founded. The Army Court of Military Review, in US. v. Goguen, - C.M.R. - (ACMR At the same time, DoD Directive 1300.6, 21 1970)l, discussed those factors to be con­ Aug. 1962, revised 10 May 1968, and the im­ sidered in determining whether or not the plementing regulations set forth standards decision of the Secretary of the Army was a and procedures for relief for conscientious legal one. The court stated that the standard objectors in the form of discharge or assign­ to be used is the standard applied by Federal ment to non-combatant duties. When a con­ Courts in deciding pre-service conscientious scientious objector has filed an application objector claims. The crucial question is for relief under these regulations, it is pro­ whether the decision of the Secretary had a vided that, pending consideration, the appli­ “basis in fact.’’ If so, his decision must stand. cant will be assigned to duties providing If not, the denial, and any generated order is minimum conflict with the professed beliefs. unlawful. It was stated that an order of the Upon denial of relief by the Secretary, orders Secretary of the Army is unlawful when it to perform duties in conflict with conscienti­ (1) erroneously construes the standard pro­ ous objection can again be given. Thus, the vided in the regulations; (2) applies a stand­ denial may “generate” orders that could not ard inconsistent with standards provided by be given during the pendency of the applica­ the Secretary of Defense or the President; or tion. As to these “generated” orders, if the (3) acts in a matter the Secretary is not au­ Secretary’s decision was unlawful, they are thorized to decide. Further, procedural errors also unlawful. Thus, wrongful denial of an amounting to a denial of due process Will also application for relief as a conscientious ob­ render the Secretary’s decision illegal.2 In jector may be asserted as a defense of dis­ reviewing the decision of the Secretary, the obedience of some orders. The conditions military judge is limited to those matters con­ precedent to the defense are a denied applica­ tained in the application file. The military tion: an allegation that the application was judge may not determine the merits of the wrongfully denied: and an order generated claim de novo, nor consider new evidence.” by the denial (i.e., an order that could not The question of the legality of the Secretary’s be given under the regulations to one who had decision is a question of law for the military a C. 0. application pending because of a con­ judgeY4although questions of fact essential to flict with the professed beliefs). the determination will be submitted to the triers of fact. These principles were adhered to and reiterated in: U.S. 2). Wilson, 41 C.M.R. 100 These rules seem clear, and the matter (1969) (conscientious objection no defense to might have been laid to rest, but for two more disobedience of lawful order) ; US.v. Avila, recent decisions by the Court of Military Ap­ 41 C.M.R. 654 (ACMR 1969) (no conscien­ peals, United States v. Stewart, 43 C.M.R. tious objector application pending, claim of 112 (1971),and United States v. Lamon, 43 C. 0. status not a defense to disobedience of C.M.R. 405 (1971). Stewart had been trained order); US.v. Mag/, 41 C.M.R. 664 (ACMR as a noncombatant for nonprofessional medi­

, The Army Lawyer 7 cal service. He came to believe that even this to disobedience of orders. He rejects the activity would violate his religious principles. “generated by the illegal decision of the His application for discharge was denied and Secretary” rational, stating that “no statute he was ordered to “put on your uniform to makes conscientious objection or the Secre­ continue your movement to your overseas tary’s improper denial of conscientious ob­ destination in compliance with your written jector applications a defense in military overseas movement orders.” He refused to trials.” Thus, Chief Judge Darden sees no obey and, at trial, he made an offer of proof authority for litigation of the issue at courts­ at an out-of-court hearing that at the time of martial. He also states that “if a court­ the offense he was a conscientious objector marital could declare on order illegal be­ and that his application for discharge was cause, under discretionary regulations, the unlawfully denied. The law officer refused to Secretary has denied the application, the hear any evidence on either part of the offer Secretary would have to grant a discharge.” of proof. Stewart then pleaded guilty. Chief Judge Darden feels this result conflicts with the grant of authority for administering Larson also had his application for dis­ the armed forces. charge as a conscientious objector denied. However, his allegation of unlawfulness was At the other end of the spectrum is Senior based on procedural irregularities. He assert­ Judge Ferguson, now serving until appoint­ ed that the chaplain’s interview came before ment of his replacement. In Larson he would his application form had been submitted not have overturned the Court of Military rather than after, as required by the regula­ Review’s decision that a rehearing on the tions. In an out-of-court hearing, Larson legality of the Secretary’s decision and re­ sought to have the charge of disobeying an sultant order was necessary. He further order dismissed because of denial of due made known his feeling that the chaplain process in processing his application, based used an improper standard in determining on the asserted error. The military judge re­ that Larson was insincere in his claim of fused to hear the motion or receive evidence, conscientious objection. If true, this error erroneously holding it to be a factual issue for might be the basis for a defense to the dis­ the court members. However, when the de­ obedience of orders charge. The fact that fense called two officers within the command Judge Ferguson found an error not alleged charged with making the administrative by the defense, which was apparently rely­ determination, the military judge restricted ing strictly on the asserted procedural irregu­ the scope of counsel’s inquiry, ruling that the larity, and his insistence on hearing on the witnesses’ assertion that they had complied merits of accused’s claim of illegal deniai. is with the regulation closed the matter. Ac­ indicative of his more liberal stance. In cused’s application was not admitted into evi­ Stewart, Judge Ferguson would again require dence. Finally, in reply to a request for a rehearing, holding that the law officer’s instructions on the defense of denial of ad­ ruling was to the substantial prejudice of ministrative due process, the military judge accused. ruled the matter was not in issue. The Court Judge Quinn stands in the middle. In of Military Review would have returned the Stewart he concurred with Darden in the re­ case for a hearing on the legality of the order, sult, but would not repudiate Novd. Rather he permitting presentation of witnesses on the held that Stewart’s guilty plea and testimony issue. during sentencing demonstrated no abuse of discretion or denial of due process in the In both cases then Judge, now Chief Judge, Secretary’s disapproval. Judge Quinn also Darden repudiated the Court’s decision in cited the Army Court of Military Review’s Nogd. He is now of the opinion that con­ decision in Goguen, which affirmed the con­ scientious objection can never be a defense viction based on the fact that the order was The Army Lawyer 8 legal in any event,6 thus not making clear his outcome of the conscientious objector dis­ exact basis for affirming Stewart’s convic­ charge in courts-martial in doubt, especially tion. In Larson Judge Quinn, writing for the in view of Senior Judge Ferguson’s expected majority, looked to the record and Larson’s departure from the bench. However, if the C. 0. application, which while not in evidence military courts do not review the legality of was an appellate exhibit, and found suffi­ the Secretary’s decision, the district courts cient undisputed factual material to deter­ will. It would seem preferable for both an mine that the denial of the application was accused and the Government to litigate all not improper. He held that the procedural issues, including the legality of the Secre­ error alleged was a mere “technicality” not tary’s decision, at a single trial. amounting to a denial of procedural due 1. The decision in Goguen was subsequently re­ process. versed and the charges dismissed by the Court of Military Appeals which found that a Federal Court’s Thus, Chief Judge Darden would not allow grant of a writ of habeas corpus to Goguen termi­ the defense, Senior Judge Ferguson would nated military jurisdiction. United States v. Goguen, require a full and complete hearing on the 43 C.M.R.367 (1971). issue of the legality of the denial at the trial 2. United States v. Larson, 43 C.M.R. 405 (1971). level in all cases, and Chief Judge Quinn is 3. United States V. Goguen, 43 C.M.R. -(ACMR 1970). inclined to decide the legality of the denial 4. United States v. Avila, 41 C.M.R. 654 (ACMR at the appellate level on those facts available 1969). and with an apparently more favorable view 5. The order in Goguen was to wear a uniform, found not to be in conflict with conscientious objector to the Government than Judge Ferguson. beliefs, and thus an order that could have been given These trifurcated opinions have placed the during the pendency of the C. 0. application.

CODE COMMITTEE REPORTS ON UCMJ CHANGES UNDER CONSIDERATION

Each year the committee created by Article (3) Legislation to permit an appeal to the 67(g), UCMJ, and consisting of the Judges U. S. Supreme Court from decisions of the of the U.S. Court of Military Appeals, The Court of Military Appeals in cases involving Judge Advocates General of the Armed constitutional questions. Forces, and the General Counsel of the De­ (4) Legislation to permit the execution of partment of Transportation, reports to the a sentence to confinement at the time the Committees on Armed Services of the Senate convening authority approves the sentence. and House and the Secretaries of the Military Such legislation not only would reduce the Departments, This year’s report, covering 1 pointless and costly segregation of various January 1970 31 December 1970, states to classes of prisoners, but would permit this that the Code Committee now has under class of prisoner to benefit from rehabilita­ study and consideration the following sub­ tion training. jects : (5) Legislation to amend article 69, Uni­ (1) Legislation which would expand the form Code of , to permit power of the military trial judge in contempt limited delegation of the authority of the matters. Judge Advocate General of an Armed Force (2) Legislation which would specify the to correct errors in certain court-martial powers of the Court of Military Appeals, the cases and to give the Judge Advocate Gen­ Courts of Military Review, and military eral of an Armed Force the authority to cor­ judges to issue writs and orders in aid of rect errors in certain records of trial by gen­ th’eir jurisdiction. eral court-martial without the necessity of !

The Army Lawyer 9 referring such records to a Court of Military situation where a specification before a court­ Review. martial has been dismissed. (6) Legislation to amend article 62 (a), (7) Legislation to relieve the convening Uniform Code of Military Justice, to permit authority of responsibility for making a post­ an appeal of an interlocutory ruling by the trial review of the findings of a court­ prosecution in certain limited categories of martial. cases, such as a ruling that a confession, or evidence obtained as the result of a search, (8) Legislation to provide for a system of is not admissible, or a determination that a random selection of court members in gen­ specification failed to allege an offense. eral courts-martial and possibly in special Such a provision would conform military courts-martial. practice to civilian practice (see, for exam­ (9) Legislation which would transfer ple, the American Bar Association Standards sentencing power to the military judge in all on Criminal Appeals, section 1.4; see also, cases, except those involving the death 18 U.S.C. 3731). Such an appeal would be penalty. made to a senior trial judge in the area or to a Court of Military Review. Under current The Code Committee also recommended law, such appeals may be made only to the increased use of para-prof essional personnel convening authority and only in the limited to save money and improve career retention.

REPORT FROM THE U.S. ARMY JUDICIARY The following items were prepared by the US.Army Judiciary Statistics of cases received in the U.S. Army Judiciary for review during the same period. The fig­ The following Court-martial Statistics are ures on SPCM~include cases tried before a compiled from monthly reports filed by military judge alone and cases tried with a military judges. These statistics represent judge and court members. Special court­ cases tried in the field during the periods in martial cases tried before a court without a question. They will differ from the number judge presiding are not included.

FY 1970 1st 2nd 3rd 4th Total Qtr Qtr Qtr Qtr General Court-Martial Cases Tried ...... 696 628 669 797 2779

Special CourbMartial Cases Tried by: Judge from Judiciary ...... 3406 6289 6438 6963 22096 Part-time Judge ...... 1066 2920 2626 2617 9119

FY 1971 General Court-Martial Cases Tried ...... 709 668 697 669 2743 Special Court-Martial Cases Tried by: Judge from Judiciary ...... 6521 6774 6893 6095 22283

Part-time Judge ...... 2066 1336 1099 972 6472 The Army Lawyer 10

Recurring Errors and Irregularities “is forwarded for review by the Court of Military Review,” This is inappropriate since (a) Since the purpose of the post-trial re­ such a case may not be referred to the Court view by the Staff Judge Advocate is to pro­ of Military Review. vide accurate information to the convening authority in order that he may make an in­ Administrative Processing of Records of Trial formed and intelligent decision in a case, in­ accurate post-trial reviews prevent such a (a) Staff Judge Advocates should take af­ decision by the convening authority. These f irmative action to implement the provisions inaccuracies result from a failure to make of paragraph 96, MCM, 1969 (Rev.), which a minimal check of the record before require a report to The Judge Advocate Gen­ the record is forwarded to this headquarters eral [by electric means or airmail, ATTN: for review. For example, an accused was Clerk of Court, U.S. Army Judiciary] when­ originally charged with eight (8) specifica­ ever an accused is transferred before he has tions of unauthorized absence. Specification been notified of the decision of the Army one (1) was dismissed before trial and the Court of Military Review. This is especially other seven (7) specifications were renum­ important when an accused, whose record of bered. The SJA review states that the ac­ trial is being reviewed under the provisions cused pleaded guilty to eight (8) specifica­ of Article 66, UCMJ, is reassigned and sub­ tions of unauthorized absence. No indication sequently granted excess leave pending com­ was given in the post-trial review that one pletion of appellate review. Staff Judge Ad­ specification was dismissed and the others vocates are urged to maintain close contact renumbered. A second example : The accused with commanding officers and personnel was originally charged with wrongful intro­ officers involved in the issuance of transfer duction, wrongful possession and wrongful and/or excess leave orders to assure that the sale of marihuana. The sale specification was U. S. Army Judiciary is advised promptly of dismissed on recommendation of the SJA. the whereabouts of the accused. This can be The accused was tried on the other two speci­ done by placing the Clerk of Court, U. S. fications and found guilty. The military Army Judiciary, on the distribution list of judge held that the two specifications were the transfer and/or excess leave orders. multiplicious for sentencing and stated that the maximum punishment was confinement (b) In a number of instances staff judge at hard labor for 5 years. The SJA post-trial advocates have failed to process correctly review advised the convening authority that special court-martial records of trial that the maximum punishment was confinement have been returned to their commands for a new review and action pursuant to a decision at hard labor for 15 years. This was 5 years in excess of the maximum for the offense of of the Army Court of Military Review. which the accused was convicted even had the When, as a result of the new review, the two specifications not been held mUltiPlicious convening authority approves the findings of by the military judge. guilty but disapproves the bad-conduct dis­ (b) When a case is to be forwarded for charge or does not approve any sentence at review under Article 69, Uniform Code of all, further review of the record by the Court of Military Review pursuant to Article 66, Military Justice, the pmper UCMJ, is not authorized. ~ l examination~ ~ , language in such a case is “The record Of pursuant to Article 69, UCMJ, is precluded. trial is forwarded to The Judge Advocate Therefore, the new action should not contain General of the Army for examination under any of the following statements: “The the provisions of Article 69, Uniform Code record of trial is forwarded to The Judge Ad­ of Military Justice.” Some actions and gen­ vocate General of the Army for review by a era3 court-martial orders have used the phrase Court of Military Review;” “The record of !

The Army Lawyer 11 trial is forwarded to the Judge Advocate pletion of appellate review. Numerous cer­ General of the Army pursuant to Article 69, tificates of attempted service which do not Uniform Code of Military Justice.” If the contain sufficient documentation of attempt­ sentence has been disapproved in its entirety, ed service, have also been received by the the action should state that disapproval of the Clerk of Court, U.S. Army Judiciary, result­ sentence does not affect the approved find­ ing in delay of appellate review. Staff Judge ings of guilty. It should also include, a state­ Advocates are urged to insure that Army ment that all rights, privileges, and property Court of Military Review decisions are of which the accused has been deprived by served upon an accused as expeditiously as virtue of the disapproved sentence will be possible or are forwarded to the appropriate restored. general court-martial jurisdiction with a copy of the transmittal letter or indorsement for­ Review of the record must then be accom­ warded to the Clerk of Court, S. Army plished in accordance with Article 66 (c), U. Judiciary. A receipt from the accused for a UCMJ, paragraph 94a (2), MCM, 1969 Court of Review decision and any request (Rev.), and paragraph 2-24b (4), AR-27-10. for final action should include the date that the Two copies of the new special court-martial accused signed the receipt or the request. order should be stamped to show that review If an accused cannot be served, a certificate of has been completed pursuant to Article 66 attempted service, including date, place of (c), UCMJ, and returned to the Clerk of attempted service and reason for non-service, Court, US. Army Judiciary, with the orig­ should be forwarded to the Clerk of Court, inal record of trial, including the new Action. U. S. Army Judiciary. All Army Court of (c) Delay in the prompt service of Army Military Review decisions served upon ac­ Court of Military Review decisions and delay cused by mail should be sent by certified in forwarding these decisions to the-appro­ mail, return receipt requested. The certified priate general court-martial jurisdiction to mail receipt showing non-delivery of a de­ which an accused has been transferred, has cision should be attached to the certificate of created numerous administrative problems attempted service when it is forwarded to the and has resulted in excessive delay in com- Clerk of Court, U.S. Army Judiciary.

MEDICAL CARE RECOVERY ACT ITEMS

The following statistics were prepared by the Litigation Division, OTJAG. Collection pursuant to AR 2738 Sixth United States Army 58,314.59 (Medical Care Recovery Program) MDW 16,613.00 2d Quarter CY 1971 DA 681.78 1 Apr - 30 Jun 1971 OVERSEAS All Activities $588,878.65 U. S. Army Alaska 1,646.77 CONUS U. S. Army Forces First United States Army $120,042.12 Southern Command XXXMXXXX Third United States Army 140,463.66 U. S. Army Europe 102,989.48 Fifth United States Army 136,209.16 U. S. Army Pacific 13,119.00 The Army Lawyer 12 DETERMINATION OF BAD TIME The following article was prepared by the Litigation Division, OTJAG. The recently published revision of Army 296 F. Supp. 986 (E. D. NY, 1970) ; Parsley Regulation 630-10 now provides among other v. Moses, 138 F. Supp. 799 (N. D., 1966)). things, that in most cases commanders will Unfortunately, the criteria to be utilized by finally decide whether absences, including the military agencies, and the standard for absences in excess of thirty days, will be ex­ judicial review is not so well settled. The cused or must be made up (para. 4-24). test seems to be whether there is some basis Since decisions against members are often in fact for the decision of the military litigated, staff judge advocates should be agency, Roberts v. Commanding General, aware of the applicable Federal decisions and supra. insure that adverse bad time determinations The cases which have been litigated gen­ are reached in accordance with applicable erally have dealt with soldiers who have re­ regulations and can be defended in court. ported to a post and been told to go home The basic authority for retaining enlisted and await further orders because their rec­ men on active duty to make up time lost due ords have been lost. The members have done to unauthorized absences is set forth in title so and then not returned to military control 10, United States Code, section 972. Para­ for six months to several years. In the in­ graphs 4-22 through 4-24, AR 630-10, imple­ terim, some have not attempted to contact ment that statute and provide a procedure for military authorities, while others have had determining whether an absence is excused fleeting or substantial contacts with a mili­ or must be made up. It should be noted that tary or civilian agency. there is no authority for retention of officers As has been indicated, the Federal courts to make up unauthorized absences. have had no difficulty in concluding that a soldier has an obligation to determine his The criteria in the regulation for excusing status, Beatg v. Kenan, supra; Roberts v. an absence is whether an absence is unavoid­ Commanding General, supra. Thus a soldier able insofar as both the member and the who remains away for a substantial period of Government is concerned (para. 4-23c.) This time (perhaps in excess of 60-90 days) in reflects a standard established by the Comp­ such circumstances and makes no further at­ troller General in 40 Comp Gen 366 (1961). tempt to ascertain his status probably will The administrative test utilized by The Judge receive no relief from a Federal court. Advocate General has been to inquire whether the member acted in good faith and The more difficult problem is the disposi­ made reasonable efforts to determine his tion of the soldier who contacts a military status. Similarly, the Federal courts have agency during his absence and is told to con­ recognized that a member has a continuing tinue to await orders. Can some of the time duty to attempt in good faith to ascertain prior to his contact be bad time, assuming his status (Beaty v. Kenan, 420 F. 2d 66 sufficient time has elapsed? Moreover, is the (9th Cir, 1969); Roberts v. Commanding member under an obligation to do something General, 314 F. Supp. 998 (Md.1970)). more if he receives no orders? The Judge Advocate General would answer in the af­ have consistently chal­ firmative. Courts apparently would also ans­ lenged their retention based on administra­ wer in the affirmative (Roberts v. Com­ tive decisions not to excuse absences. How­ manding General, supra; Gardner v. Resor, ever, the body of reported cases is modest. No. 1243, USDC, Md., Pa., decided 8 August The validity of section 972 seems clear (See 1970) ). However, the Ninth Circuit appears Beaty v. Kenan, supra; Gaston v. Cassidy, to have adopted a mechanical test and to have

, The Army Lawyer 13

taken the position that once a soldier contacts notice, permit him to retain counsel, show an agency and has been told to wait, he need him the available evidence, and permit him do nothing further (Beaty v. Kenan, supra: to present his version of events and evidence McFarlne v. DeYoung, 311 F. Supp. 621 (E. in his behalf. Unless there is some compelling D. Calif, 1970) rev. 431 F. 2d 1197 (9th Cir,, reason to the contrary, the member should be 1970)). This approach has a certain super­ permitted to appear in person with counsel ficial attraction because it is so simple. It has and present his evidence. Staff judge advo­ been cited in several unreported decisions. cates should furnish continuing advice on this However, the Ninth Circuit has not had the point. opportunity to consider all of the ramifica­ tions of Beaty. It seems likely that in the Additionally, there is the question of evi­ proper circumstances, it will modify its test. dence. Staff judge advocates have the choice of insuring that an adequate written record Several procedural problems raised by AR of the investigation and decision are main­ 630-10 have not yet been litigated. Para­ tained or, in the event of litigation, present­ graph 4-24 authorizes certain cpmmanders ing at the hearing all the officers who par­ to excuse absences. The regulation does not ticipated in the administrative decision not to indicate whether the authority can be dele­ excuse the absence in question, including, gated. The only safe course is to insure that perhaps, the Commanding General. The the appropriate commander personally ap­ former alternative is the only practical proves the decision not to excuse an absence, course and should be followed. Past experi­ even though the determination is published ence has indicated that, if it is adequate, the over a command line. Similarly, the proce­ Government can successfully argue that the dure to be used in the informal investigation judicial hearing must be limited to the ad­ is not clear. The Federal courts have always ministrative records. insisted on some basic due process. See Gold­ beyg v. Kelly, 397 U.S. 254 (1969). Thus, as­ Finally, the new regulation contains no suming that the language of paragraphs 4-22 appeal procedures. However, the provisions and 4-231, takes this investigation out of the of Article 138, Uniform Code of Military Jus­ ambit of AR 16-6 (See para. 1 AR 16-6), tice are available as a substitute. This avoids it is still essential that the basic rudiments of the constitutional problem. Parsleg v. Moses, due process be followed. Accordingly, the in­ supra; Smith v. Resor, 406 F. 2d 141 (2d vestigating officer must give the member fair Cir., 1969).

SOME FUNDAMENTALS OF A MARINE CASUALTY INVESTIGATION The following article was prepared by the US. Army Claims Service. 1. Introduction. a. The Army Maritime For this reason a marine casualty investiga­ Claims Settlement Act (AMCSA) (10 U.S.C. tion (MCI)must be made in a professional 4801-04, 4806) is an alternative remedy, and manner and in accordance with commercial an exclusive Army administrative remedy, practice as set out in AR 55-19. Claims offi­ to the Suits in Admiralty Act (46 U.S.C. cers should not, without checking for adequ­ 741-743) and Public Vessels Act (46 U.S.C. acy for a determination under AMCSA, sub­ 781-790) for damage caused by an Army ves­ mit a report of a marine casualty investiga­ sel. A claimant may bring his action initially tion by the in a district court, with one exception as pro­ (MSC),intended primarily for other pur­ vided in 46 U.S.C. 740 where an administra­ poses, i.e., charter coverage, in lieu of an tive action is mandatory at the outset, or file Army report of a marine casualty investiga­ his claim with the Department of the Army. tion (ARMCI) . The Army Lawyer 14

b. The AMCSA is an established remedy, casualty. For example, the draft of the two well .known to the major steamship com­ vessels involved may show the location with panies. Hence, almost all claims for collision respect to their freeboard, which, of course, damage allegedly caused by Army vessels are would not be the same after one or both ships forwarded direct to the U. S. Army Claims had partially loaded or discharged cargo. Service (USACS) . This procedure, as ship­ Similarly, concerning pier damage, the height owners know, normally obviates the delay of tide, constantly varying, may prove or dis­ and expense incident to litigation and affords prove the vertical point of impact. the opportunity for prompt settlement of (3) If an error in navigation, Le., fail­ just claims. Infrequently, a claim will not be ure to exercise the care of a competent sea­ settled by the USACS, usually because there man, is alleged, the set and drift of the tide, is no liability or because a claimant will not as well as the direction and velocity of the settle for a sum considered to constitute wind existing at the time are highly relevant reasonable damages. In such cases litigation circumstances, The impact of these two usually follows. forces should be considered. They may never c. It is seen, therefore, that a workman­ again precisely coincide to generate the same like MCI report should be prepared either for effect. A competent master or other conning guidance of the USACS or for a court in the officer will explain his maneuvering orders event of litigation. Some of the basic steps in with respect to these factors. preparing an ARMCI are set out below. b. Joint Survey : 2. Basic Procedures: Although six funda­ mental steps in the investigation of a marine (1) While the foregoing are essential casualty are discussed here, the first two with respect to liability, the prompt joint constitute the indisputable parts of such in­ damage survey is equally fundamental to any vestigation. Of these, the first concerns agreement as to the physical items of damage liability; the second, the amount of damages. and consequent repair costs. The courts “frown” upon ex pa+-te surveys and some a. Notice of Damage: courts do not allow fees for such surveys as (1) The marine casualty investigating an item of damages. Incidentally, classifica­ officer will first ascertain whether prompt tion survey fees are routinely allowable notice of damage has been given by the ag­ as an item of damages. Such surveys grieved party to the offending vessel, or to determine the seaworthiness of a vessel her owners or agents. Such notice should be after casualty, important information for ves­ given as soon as practicable after the incident sel owners, underwriters and shippers or con­ of damage and at the latest before the vessel signees of cargo. leaves the of the alleged casualty. This (2) A delayed joint survey may be as affords opposing interests the opportunity to futile as an ex parte survey. Old damage be­ inspect for “fresh” damage or to ascertain comes obscure and may be confused with that the damage is “old” and not caused other damage. All parties having a possible when, where, and how alleged. The difficulty interest in the casualty should be invited to in establishing any damage after the vessel the joint survey. In addition to the various sails is frequently pointed out by the courts. owners or agents of the property involved, There is the opportunity for damage by sub­ Le., vessels, cargo when damaged, and shore sequent similar incidents, as well as the structures, third parties such as vessels which fact that the damage may have been pre­ may have embarrassed the maneuvers of the existing. vessels directly involved should be invited (2) Further, the coincident physical fac­ to attend joint surveys. At the outset of an tors tending to prove or disapprove liability investigation, it may be difficult to ascertain may be present only at about the time of a who will ultimately pay for a loss. The Army Lawyer 15

c. Statements by Witnesses. Although not fault and is difficult to rebut. Any such vio­ of the preeminence of the first two above lation, however insignificant it may appear, “musts”, the interrogation of witnesses and should be noted. The rules of the road rou­ the obtaining of signed statements when tinely state which vessel is “burdened”, the‘ possible rank as a close third requirement in other being “privileged”; or the rare case conducting a marine casualty investigation. when both are under a duty to take affirma­ A general description of the incident by the tive action as when vessels are meeting end­ marine casualty investigating officer con­ on, or nearly so, thus involving risk of col­ stitutes a useful summary but should not be lision. A competent lookout is so necessary in lieu of the statement of witnesses except in that a defective one is a major fault resulting cases of necessity. The absence of witnesses in prim facie liability. or their refusal to be interrogated or to give a signed statement, a privilege which they f. Physical Facts. A sixth and final factor to be considered in investigating and report­ may exercise, may constitute such necessity. ing a marine casualty in ascertaining indis­ Such fact should be in the record. In these putable physical facts, alluded to above. cases heresay evidence, together with the in­ These facts are frequently overlooked in vestigating officer’s opinion and conclusion, reliance upon testimony which, at best, is may afford the basis for a determination by circumscribed by memory, ability to estimate, the settling authority. to perceive and to describe what has been seen ;and which, at worst, is subject to preju­ d. Drawings or Sketches. fourth es­ A dice and falsification. Established physical sential in completing a report of a marine facts are irrefutable and may show error or casualty investigation is an oriented drawing accuracy in written or oral evidence. As an or sketch, not necessarily to scale, of the extreme example, an indent in the side of a area. An oriented sketch, showing as a mini­ vessel 15 feet above the waterline could not mum north as the upper or top of the page, have been caused by the corner of a barge may readily depict the heading of vessels, the having a freeboard of only 6 feet, in the longitudinal axis of shore structures, the absence of some explanatory circumstance. location of buoys or other aids to navigation, The speed of a vessel may be conclusively es­ position of third party vessels, the set, drift, tablished by the time and distance of her run. and stage of the tide, and the direction and The damaged condition of a vessel may be velocity of the wind. All of these factors as­ good evidence of the force and angle of col­ sist the authority having settlement responsi­ lision. Physical facts may show the impossi­ bility to determine whether a collision could bility of an alleged maneuver, as well as the have prevented and, in fact, which vessel or impossibility of damage. vessels were at fault. 3. Conclusion: This resume is not intended e. Rules and Regulations. A fifth essential to exhaust the subject of investigating and in reporting a marine casualty, particularly reporting marine casualties. Indeed, where a in foreign waters, is the furnishing of perti­ minor claim, reasonably estimated as less nent statutory law, rules of navigation, in­ than $500.00 is involved, much of the detail cluding any local regulations and established suggested above may be omitted. On the customs which may be contrary to, or appear other hand, investigating and reporting a to be in conflict with, the general rules. A potentially large claim would require all of violation of a written rule resulting in an the above and no doubt more as the facts of incident of damage is evidence of prima fucie the case unravel. The Army Lawyer 16

7: PROCUREMENT LEGAL SERVICE The following items were prepared by the Procurement Law Division, TJAGSA Formal Advertised Procurements - District the stated minimums and that the failure to Court rejects GAO opinion; enjoins award. submit goals for minority employment was Northeast Construction Co., v. Romney, a material deviation from the IFB require­ DCDC, No. 1163-71, June 21, 1971. ments and thereby precluded award to the plaintiff. The GAO opinion was apparently The plaintiff in this case was a bidder on rendered after a careful review of the facts a HUD contract. The IFB required that bid­ in the case. The District Court opinion is ders indicate on the bid form what percent­ therefore questionable in view of the revised age of his work force would be filled by opinion of the US Circuit Court of Appeals members of designated minority groups. Also in the Schoonmaker case. (Schoonmaker v. included in the IFB were designated mini­ Resor, USCA, DC, 23 June 1971). In Schoon­ mum percentages of minority employment in maker the Army had acquiesced in a GAO order for a bidder to be eligible for award. opinion and had denied award on the con­ The plaintiff failed to designate what per­ tractor. The District Court for D.C. found centage of his work force would be from the denial of the award to be arbitrary and minority groups but signed the bid and the capricious and overturned the Army’s de­ appendix which asked for the percentage cision. The Circuit Court originally ruled designations. against Schoonmaker in that the GAO opin­ The Government‘s contracting officer re­ ion was not arbitrary or capricious (USCA, jected the plaintiff’s bid as being nonrespon­ DC, 6 March 1971). In its rehearing the sive and awarded the contract to the second Court further finds that the Army’s section low bidder. Plaintiff protested to the Comp­ in acceding to the GAO view was not arbi­ troller General who concurred in the decision trary or capricious either even though the of the contracting officer (B-172581, 60 Army may disagree with the GAO. It is Comp. Gen. - [1971]). The plaintiff then theref ore arguable that, applying the Schoon­ brought this action in the District Court for maker standard to the Northeast Construc­ the District of Columbia. tion Co. case, the injunction should not have been issued. It would be difficult to say that The Court disagreed with the GAO and both the GAO and HUD were arbitrary and the contracting officer and found that the capricious in denying award to the plaintiff irregularity (failing to specify percentages in view of the long standing rules on re­ of minority employment) was minor. The sponsiveness of bids. Court felt that the contractor was legally bound to employ the stated minimum and Bid Protests -Comp. Gen. review of District that no competitive advantage could accrue Court decision. by allowing him to so state after opening of Comp. Gen., Ms. B-171782, July 19, 1971. his bid. The Court then issued a preliminary injunction enjoining award to the second low In this case the Comptroller General was bidder as work had not commenced under the asked to rule on a protest filed by National contract. Cash Register (NCR) regarding a Depart­ ment of Education contract. NCR had, simul­ COMMENT: The decision of the District taneously with filing the protest, requested Court is of great importance to the procure­ an injunction in the District Court of the Dis­ ment attorney especially since it results in an trict of Columbia. injunction against award. The GAO, in its opinion, felt that it could find no basis by The protest and the action in the District which the plaintiff could be legally bound to Court asserted that the Office of Education The Army Lawyer 17 should not have awarded a contract to Leasco was supported by the Justice Department Corp. in that improper evaluation criteria which asserted that GAO decisions are ad­ were used ;the procurement should have been visory only and cannot directly interfere in conducted by formal advertising: and the Of­ an executive agency’s contracting function. fice of Education violated its own procure­ ment regulations in several instances. The Formal advertising - Responsiveness ­ Judge for the district court found that NCR failure to return all pages of IFB. Comp. had not shown a “flagrant disregard” of the Gen., Ms B-172163, 6/29/71. procurement rules by the Office of Education The bidder in this case had failed to return and denied NCR’s request for an injunction all pages of the IFB with his bid. The pages and since injunction relief was NCR’s sole deleted covered most of the terms and condi­ prayer, the Judge dismissed the complaint tions of the proposed award. The bidder had sua sponte. returned the first page of the IFB which In an appearance before the GAO, Leasco’s provided that “subject to the terms and con­ attorneys asserted that the Judge’s actions ditions herein, the undersigned offers to were res judicata on the merits of NCR’s lease.” The bid was rejected as nonresponsive claim. GAO concurs with Leasco and states even though the bidder asserted that the that the dismissal of the complaint operates “subject to” language incorporated the terms as a full adjudication upon the merits which and conditions by reference. is conclusive not only as to the matters which The GAO agreed with the contracting offi­ were decided, but also as to all matters which cer that the bid was nonresponsive. It pointed might have been decided in the original ac­ out that the key issue was the meaning of tion. the words quoted above. The GAO stated, “We believe there is a substantial question as COMMENT: The decision by the GAO em­ to whether ‘herein’ refers to the provisions of phasizes that the Court had made a determi­ the solicitation as issued or to the provisions nation on the merits of NCR’s claim. This will returned with the bid. Thus, we find no clear not always be the case since a hearing on a indication in the language of the bid that preliminary injunction normally will not pre­ [the bidder] intended to be bound by all of clude further evaluation of the merits. How­ the material provisions of the solicitation. ever, here the Judge dismissed stating that, When a bid is subject to two reasonable inter­ “as a matter of law this case is not an ap­ pretations, under one of which it would be propriate case for an injunction, even if all of responsive and under the other nonrespon­ plaintiff’s allegations are accepted as true.” sive, we have consistently followed the rule The instant GAO decision to treat the Dis­ that the bidder is not permitted to explain trict Court ruling as res judicata on the his intended meaning after bid opening.” merits further indicates that the GAO role COMMENT: The above decision depends in the procurement process is significantly upon the language of the IFB. Other GAO reduced once a proposed award reaches the opinions have found the failure to return courts. Although in at least one case, Page pages of an IFB not be fatal to the bid where Communications v. Resor, DC DC, 4 Dec 70, the language of the IFB clearly indicates an an injunction was issued pending a GAO intention to be bound. Thus language where ruling on the merits. In ZTT o. Seamuns, DC the bidder states he agrees to be bound by all DC, June 26, 1971, the GAO sought to inter­ substantive terms and conditions of the solici­ vene in a case contestihg an Air Force award tation in any resultant contract would enable of a contract in accordance with a GAO opin­ a bidder to be found responsive even though ion. The Court there found that the GAO had he had not returned certain IFB pages. no legal interest in the proceedings and B-170044, October 15, 1970; 49 Comp. Gen. denied their motion to intervene. The denial 289 (1969). The Army VFwyer, 18

A bid may also be found responsive if the circumvent the requirements of the regula­ portions of the IFB which are not returned tions as in this case. are insignificant. portions of the proposed award. Socio-Economic Policies - executive order issued pursuant to Clean Air Act. Responsibility - Referral to SBA Executive Order 11602, 29 June 1971, 36 Fed. Comp. Gen. Ms. B-171622 (13 May 1971). Reg. 12475. ASPR 1.705-3 (b) requires that when­ The President has issued an executive ever a contracting officer has determined a order pursuant to Sec. 306 of the Clean Air bidding concern to be nonresponsible as to Act (42 USC 1857 et seq.) requiring all capacity or credit, the matter shall be re­ Government contracting agencies to adhere to ferred to the SBA where the proposed award the Act’s policy and purpose. The order au­ is more than $10,000. In the subject case, the thorizes the Environmental Protection Agen­ contract was a requirements contract for oil cy (EPA) Administrator to list facilities tanks. The Government guaranteed that it which have given rise to a conviction under would buy a minimum of 14 such tanks and the act. Government agencies are precluded it was estimated that 48 would be purchased. from entering into any contract for the pro­ The protesting firm’s bid for the minimum curement of goods, materials or services at quantity was $9996.00. The contracting offi­ such a facility and further requires that all cer found him to be nonresponsible and did Government contracts contain a clause di­ not refer the matter to the SBA. The bidder recting compliance with the Act and stand­ protested on the basis that the matter should ards issued pursuant thereto. have been referred to the SBA as the price of the estimated quantity would be well in COMMENT: The original draft of the excess of the $10,000 threshold set forth in Executive Order was vigorously protested by the ASPR. the ABA Public Contract Law Section as imposing an unreasonable burden on Govern­ The Comp. Gen. agreed with the contractor ment Contracting. The final order deleted emphasizing that bids were to be evaluated some of the more objectionable provisions as on the estimated quantities ; the pre-award seen by the ABA. survey was conducted with the estimated quantities as a base; and ASPR requires esti­ The Labor Department has also recently mated quantities to be as realistic and ac­ issued guidelines affecting Government con­ curate as possible. The Comptroller notes tractors in the implementation of the Depart­ that evaluation of the SBA threshold at the ment’s equal employment opportunity com­ pliance program in the construction indus­ minimum level is inconsistent with the Gov­ try. The memorandum of John L. Wilks, Di­ ernment’s obligation to purchase all of its rector of the Office of Federal Contract Com­ needs from the contractor even if they ex­ pliance, dated 7 June 1971, sets forth a two ceed the minimum. step program where a compliance officer will COMMENT:This case illustrates another of first analyze personnel policies of prime and the difficulties encountered in the use of re­ sub-contractors to isolate possible problems quirements contracts. (See cases of interest and will then conduct on-site visits to ascer­ - Procurement Law in last month’s issue of tain whether there has been compliance with the Army Lawyer.) The procurement legal the standards of the agency. The existence of advisor must not only review minimum re­ continued uncorrected deficiencies will result quirements but should be wary of actions in a hearing and may lead to contract can­ which have the appearance of attempting to cellation and debarment. The Army Lawyer 19 TAXES -Price increase allowed for increase The Court held that the Contractor was en­ in subcontract costs. titled to price adjustments resulting from HEGEMAN-HARRIS & COMPANY, INC. increases in price of subcontracts, provided v. U.S. Ct. CI. (April 16, 1971) the subcontract was entered into after the effective date of the tax increase. The Court The contractor in this case had contracted looked to the words “bear the burden” found to build a Federal Office Building in Albu­ in the clause and concluded that if they are to querque, New Mexico. The contract was fixed have any meaning at all they must include, price and contained the standard “Federal, the tax increases involved here. The Court State and Local Taxes” clause. rejected the above cited Comp. Gen. opinion Subsequent to the award of the contract, as not binding upon them and stated that the New Mexico increased its gross receipts tax Comptroller had not analyzed the clause. and ita sales and use taxes. The result of The Court also discussed the problems the tax increase was to increase costs for the created by use of the taxes clause in a con­ contractor and his substantial number of sub­ struction contract since it was designed for contractors. The contractor sought adjust­ use in supply contracts. The Court reasoned ment of price under the taxes clause. The that you must interpret the clause as a rea­ contracting officer authorized increased price sonable and prudent construction contractor resulting from taxes imposed directly on the would interpret. In this case a construction prime but disallowed those resulting from in­ contractor would place a different meaning crease taxes on subcontractors. In so doing on completed supplies than would a supply the contracting officer relied on the phrase contractor. In construction contracts the “levied on or measured by the contract or the court found, contractors treated the finished sales price of the services or completed sup­ building as a “completed supply” and also plies furnished under this contract.’’ The such items as fixtures, glass, cements, etc. To Contracting Officer, with the backing of the hold otherwise, the Court states, ‘‘ .. . [Tlhe Comptroller General opinion in B-156701, 44 clause would have little meaning and would Comp. Gen. 816 (1965) claimed that the tax simply be a trap for the unwary contractor, clause applied only to taxes on the completed luring him to depend on escalation rather project and not to materials incorporated into than making suitable provisions in the bid the project. price.”

PERSONNEL ACTIONS Personnel actions are provided by The Personnel, Plans and Training Office,OTJAG. 1. Commendations we offer our bes�wishes for the future to the Often officers of the Corps and civilian at­ following officers retired or retiring after torneys are awarded decorations or receive many years of faithful service to our country. letters of appreciation or commendation for RETIRED S1 July 1971 work well done. Copies of such orders and/or COL FREEMAN,Wilson letters should be sent to the Chief, Personnel, Plans and Training Office, OTJAG, so that RETIRED 1 August 1971 a copy of the orders or letters may be placed LTC MURRAY, Ralph E. in the branch and TAG 201 files. RETIRING 81 Augwt 1971 2. RETIREMENTS. On behalf of the Corps, LTC STOKER,James D. The Army Lawyer 20

3. PROMOTIONS. Congratulations to the following officers and warrant officers who will be prodoted on the dates indicated. COL HALL, Rupert P. 13 August 1971 CW3 BASTILE, Wilfred N. 13 August 1971 CW3 YOUNG, Seburn V. 12 August 1971 CW3 KANE, Roger C. 16 August 1971 CW3 JUST, Dale F. 13 August 1971 CW3 JOHNSON, Ole M. 27 August 1971

4. ORDERS REQUESTED AS INDICATED. NAME FROM TO APPROX. DATE COLONELS AMMERMAN, Edwin F. Hq, 6th USA Med Cen, BAMC Jul 71 CARNEY, Clement E. Hq USARYIS USA Sch Tng Cn Ft Gordon Nov 71 CLAUSEN, Hugh J. SAOSA OTJAG Aug 71 DORT, Dean R. Hq, 6th USA Hq, USARPAC, Hawaii Sep 71 REESE, Thomas H. OTJAG Hq, 6th USA Sep 71 LIEUTENANT COLONELS CLAUSE, James D. CDC, Ft Belvoir USA Jud Sep 71 PASSAMENECK, David C, USA CID Agy DCSPER Aug 71 MITTELSTAEDT, Robert N. Vietnam Hq, USARYIS Aug 71 MOUNTS, James A., Jr. DCSPER OTJAG Aug 71 RYKER, George C. OTJAG OCLL Aug 71 MAJORS CHUCALA, Steven Ft Belvoir-EN Cen USA CID Agy Aug 71 KILE, Daniel A. Hq, MDW Stu Det, MDW Sep 71 NAUGHTON, John F. Stu Det 6th Army Dir Mil Supt, Pentagon Aug 71 PLATT, Edgar C. OTJAG Aberdeen, PG Aug 71 ROGERS, Jack D. Stu Det, MDW S-F TJAGSA Jul 71 WILLIAMS, Jack H. OTJAG USARV Aug 71 CAPTAINS ARONICA, Joseph J. USARSUPTHAI USA Jud Oct 71 BERMAN, Fred J. XVIII Abn Cps, Ft Bragg OTJAG Aug 71 FITZMORRIS, John D. OTJAG USATCI Ft Polk Sep 71 FOLAWN, John S. Ft Belvoir-EN Cen USATCI Ft Lewis Aug 71 GARDNER, Benjamin USA Berlin USA Jud w/sta Germany Aug 71 GOCKE, James W. USAG Ft Riley Inst Path, WRAMC Aug 71 LAZARUS, Paul D. USA Jud USA Jud w/sta Ft Devens Aug 71 MADRID, Jay J. Europe 1st Cav Div Ft Hood Sep 71 MARON, Andrew W. Europe Stu Det, 6th USA Aug 71 MASSEY, John M. 1st Amd Div, Ft Hood OTJAG Sep 71 OLEINEWSKI, Walter USATC Ft Campbell Inst Path, WRAMC Aug 71 SPROULL, John F. Vietnam USAG Ft Carson Nov 71 WAGNER, Lawrence I. USATC Ft Campbell USA Jud Nov 71 WATTS, Theodore H. ADC Ft Bliss XVIII Abn Cps Ft Bragg Sep 71 WARRANT OFFICERS TRAVIS, Harry B. USATC Ft Campbell Stu Det, 3rd USA Sep 71 5. We are happy to welcome Colonel Virgil 6. Voluntary recall to active duty: McElroy back to the corps, after the ab- CPT DEVINE, Frank E. sence of three years. He is assigned as a Hq, USA Eng Cen, Ft Belvoir member of the U.S.Court of Military Review. CPT o’BRIENp Maurice J. Hq, USAIC, Ft Benning, GA !

The Army Lawyer 21

7. NEWLY COMMISSIONED JAGC OFFICERS. The following officers recently commissioned in JAGC are assigned as indicated. CPT FEDYNSKY, George CPT KARJALA, John G. Hq, USATC, Ft Benning, GA Hq, 1st Cav Div, Ft Hood, TX

CURRENT MATERIALS OF INTEREST Army Regulations penditure since this period was extended in­ definitely under accounts. AR 274, 20 July 1971, effective 1 January “M” 1972, Legal Services ; Judge Advocate Gen­ Articles eral Service Organizations, Organization, Training, Employment, and Administration. Paust, “Legal Aspects of the My Lai Inci­ This revision supersedes AR 27-4, 9 May dent: A Response to Professor Rubin, 60 1969, and reflects organizational and ad­ Ore L. Rev. 138 (1971). (School of Law, ministrative changes within judge advocate University of Oregon, Eugene, Oregon reserve structure. 97403, $3.00) AR 37-41, 22 July 1971, effective 16 “Collateral Investigations of Army Air­ September 1971 (supersedes AR 37-41, 1 craft Accidents, U. s. Army Aviation Qigest, February 1971), entitled Regulations Gov­ July 1971. erning the Use of Project Orders. This re­ vision requires ordering and performing Books components to be separately managed and fi­ R. Hammer, The Court-Martial of Lieu­ nanced; allows use of project orders to tenant Calley, Coward, McCann & Geoghe­ finance minor construction and maintenance gan, Inc., N.Y., 398 pp. 1971. of real property ; requires reimbursement for unfunded costs by the performing activity S. Brodsky & N. Eggleston, The Military when ordering component is acting as an Prison, Southern Illinois Press, Carbondale, agent for a non-Government customer, or Illinois, 197 pp., 1970. user and deletes requirement that project E. Byrne, Military Law: A Handbook for orders be performed when the period of the Navy and Marine Corps, U.S. Naval In­ availability of the appropriations for ex­ stitute, Annapolis, Maryland, 396 pp., 1970.