426 MILITARY JUSTICE A REINFORCER OF DISCIPLINE Robert S. Poydasheff The American involvement in Viet­ Unfortunately, some observers nam generated intense soul-searching, wrongly perceive the military justice questioning, and argument among vari­ system as a system remote from Ameri­ ous segments of American society. In can military ethical considerations, particular, the My Lai cases and other having no nexus to justice. They see it incidents focused public attention upon as one operating to the prejudice of the the existing system of military criminal accused by failing to accord him the law. 1 Many Americans, having little or procedural and substantive protections no professional contact with the Armed of the judicial process under the Consti­ Forces, were exposed to highly mis­ tution and the Federal Rules of leading and inaccurate generalizations Criminal Procedure.4 One writer has and conceptualizations concerning a even erroneously asserted that: "None system that "is now a sophisticated of the travesties of justice perpetuated system of justice.,,2 The military justice under the UCMJ is really very surprising system must enjoy public confidence for military law has always been and and understanding, because "a system continues to be primarily an instrument of justice is merely as good as the public of discipline, not justice."s believes it to be.,,3 There is little, if any, The Uniform Code of Military Jus­ value in the system if it is not trusted or tice does not reflect a congressional understood by the American public. desire to enforce discipline to the detri- 427 ment of American notions of justice.6 precisely, one generally thinks of "duty, Rather, it combines most of the judicial honor, country," "loyalty," and "mis­ concepts relating to individual rights 7 in sion and men." There are many, no a code of conduct, the violation of doubt, who would view the ethical which is proscribed and which reflects conceptions of the American military the military ethic. While the soldier, by forces as anachronistic. Nevertheless, joining the military, subjects himself to " ... it is in fact the very essence of the limitation or curtailment of the military professionalism.,,9 Today, the scope of his basic freedoms (e.g., free­ line between the military services, dom of speech), he surrenders none of especially the Army, and civilian society them. The military member continues has become blurred with the mobiliza­ to enjoy all of the basic rights and tion of thousands of citizens into uni­ freedoms he enjoyed in civilian life. formed citizen-soldiers. As a result, the However, he or she must exercise these possibilities exist that" ... the patterns rights in a manner consistent with the of military authority [may] shift from overriding interests of the military. authoritarian command to organiza­ There was a time when joining the tional decisionmaking.,,1 0 Under these military meant the surrender of certain conditions, the concepts embodied in righ ts. This is no longer true. In order to the military ethic must be reinforced in highlight the role of law in a military order to insure adherence to standards environment, it is necessary to discuss which are still both viable and necessary the meaning of the military ethic, cer­ in the American Armed Forces. tain codal articles8 as they implement The Armed Forces constitute a the ethic, and some of the basic rights unique and specialized society because of an accused under military law. their ultimate function is that of com­ bat in the national defense. For this THE MILITARY ETHIC reason, military forces are separate and distinct in many aspects from the parent civilian society. They have developed The military ethic is not a "theory" their own traditions which have given of military conduct. It is a code of rise to the military ethic, which, in tum, behavior pertaining to a profession-the is based on a recognition that the profession of arms. This code is con­ purpose of our military forces is to fight sistent with the American tradition. It is wars, or to be ready to fight them, empirically derived, and by its nature it should the occasion arise. 1 1 The is noncompulsory. Being noncompul­ soldier's first duty is the accomplish­ sory, we should not be surprised that ment of his mission, and his second is to not all the members of American Armed insure the welfare of his men. If this Forces adhere to it at any given mo­ were not the basic principle, "any mili­ ment. In order to demand this ad­ tary operation involving a risk would herence, the Congress enacted a Uni­ not be undertaken, and in fact the form Code of Military Justice-criminal military forces could be dispensed laws-in an attempt to corporealize the with.,,12 ethic into concrete statutes, violations The military ethic consists of a code of which could lead to penal sanctions. of behavior appropriate for an organiza­ In so doing, the Congress provided in tion whose primary purpose is to fight if the broadest sense the nexus between called upon to do so. Its practical effect the military ethic and justice. is to provide or to account for the The term "military ethic" is rather motives underlying military conduct. 1 3 amorphous when viewed in the abstract. Writers such as Ward Just fail to con­ Indeed, in attempting to define the term sider the military ethic as a system of 428 empirical norms which provides the difficult to acquire but capable of being guideposts for proper military conduct. lost immediately. There can be no dis­ He has opined that "the army has been ruption lest the armed forces disinte­ corporatized. It has become something grate into a mere armed mob amid the of a syndicate, a corporate state with its stresses of peacetime hardship and war own laws and traditions and pro­ time fear."IS This approach emphasizes ceedings." Quite to the contrary, the that the end or purpose of a soldier's military ethic, by regarding love of action is to obey and not to delib­ country, duty, honor, et cetera, as erate.19 virtuous and by emphasizing them con­ tinuously, has enabled the Army to MILITARY LAW avoid succumbing to corporatization. For example, the military ethic requires Military criminal law is concerned the American Army to "maintain a with many concepts that are not neces­ nonpartisan posture, i.e., a nonparty sarily embraced within the character of affiliation. ,,14 Yet we have had obvious the military ethic. Within the military cases of members of the Army who legal framework the independence ·of openly and notoriously advocated par­ the courts-martial20 from command in­ 1 ticularistic political philosophy. 5 An fluence, the independence of the Court extreme example is found in the case of of Military Review2 1 and the Court of 1 Parker v. Levy, 6 where Army Captain Military Appeals, as well as the tradi­ Levy, stationed at Fort Jackson, de­ tional limitation of their scope in clared he would not obey a written making new law, are excellent examples order to conduct training. In addition, of the separation of judicial and military 2 he made several public statements to ethical values in the military law. 2 Of enlisted personnel indicating that the all the ethical values encompassed in United States was wrong in being in­ military law,· the chief one is the main- volved in the Vietnam war and that . tenance of a disciplined force, which "Colored soldiers" should disobey military law in tum reinforces. orders to go to Vietnam. As discipline must be maintained Even though the military ethic pro­ within the military, so breaches of scribes formal, public political ad­ discipline must be punished. Any breach vocacy, members of the military profes­ of the military ethic-discipline could sion may hold political beliefs, show impair the fighting effectiveness of a political preference, and vote in elec­ military unit. Any infraction which tions. One authority goes so far as to would lessen a soldier's enthusiasm to main tain that "Military personnel respond to duty would necessarily should be permitted to serve on local impair the effectiveness of his unit. school boards, run in nonpartisan local Should that unit be in combat, any elections, and be members of govern­ reluctance, however slight, to respond ment advisory boards and public panels to duty "could be disastrous, or even where they have qualifications and in­ fatal. ,,23 terests.,,1 7 Certain aspects of this ethic, em­ Thus, the norms of "duty, honor, bodied in the concept of discipline, are country," "loyalty," and "mission and peculiar to the Armed Forces. Three men" provide the parameters as to how articles of the Uniform Code of Military soldiers ought to behave. Justice illustrate the importance of law When viewed from the perspective of in reinforcing the military ethic. The a lawyer, these norms are seen to first is article 88,24 which prohibits underlie the concept of discipline, commissioned officers from using "con­ which "is the very soul of Armies- temptuous words" against the President, 429 Vice President, Congress, and other high of his sentence, Howe was granted a civil officials. If convicted, an offender parole. "shall be punished as the court-martial Should Howe have been tried? Is not may direct." an American entitled to criticize his The others are article 92, prohibiting government as provided for and pro­ 2 disobedience to orders, 5 and article tected by the Constitution?31 Howe was 2 134, 6 the so-called general article, the first person to have been prosecuted which punishes, inter alia, "[A] 11 under article 88 of the 1950 UCMJ. The disorders and neglects to the prejudice restrictions of this article embrace not of good order and discipline in the only loyalty, one of the fundamentals 3 armed forces," not otherwise specifi­ of the military ethic, 2 but also the cally mentioned in the UCMJ.