Headquarters, Department of the Army

Headquarters, Department of the Army Department of the Army Pamphlet 27-50-415 December 2007 Articles The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency? Major John A. Hamner Military Justice in the National Guard: A Survey of the Laws and Procedures of the States, Territories, and the District of Columbia Major Robert L. Martin TJAGLCS Practice Note Faculty, The Judge Advocate General’s Legal Center & School Tax Law Note Update for 2007 Federal Income Tax Returns Major Dana J. Chase Note from the Field E-Discovery Amendments to Federal Rules of Civil Procedure Celebrate First Anniversary Colonel John Siemietkowski Book Review CLE News Current Materials of Interest The Army Lawyer Index for 2007 Editor, Captain Alison M. Tulud Assistant Editor, Captain Ann B. Ching Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected]. Articles should follow The Virginia, for the official use of Army lawyers in the performance of their Bluebook, A Uniform System of Citation (18th ed. 2005) and the Military legal responsibilities. Individual paid subscriptions to The Army Lawyer are Citation Guide (TJAGLCS, 12th ed. 2007). No compensation can be paid available for $45.00 each ($63.00 foreign) per year, periodical postage paid at for articles. Charlottesville, Virginia, and additional mailing offices (see subscription form on the inside back cover). POSTMASTER: Send any address changes to The The Army Lawyer articles are indexed in the Index to Legal Periodicals, Judge Advocate General’s Legal Center and School, 600 Massie Road, the Current Law Index, the Legal Resources Index, and the Index to U.S. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. 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The Board of Adjunct Editors consists of highly and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, qualified Reserve officers selected for their demonstrated academic Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension excellence and legal research and writing skills. Prospective candidates 3396) or electronic mail to [email protected]. may send Microsoft Word versions of their resumes, detailing relevant experience, to the Technical Editor at [email protected] Issues may be cited as ARMY LAW., [date], at [page number]. The Editorial Board of the Military Law Review includes the Chair, Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of Articles The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency? Major John A. Hamner...................................................................................................................................................... 1 Military Justice in the National Guard: A Survey of the Laws and Procedures of the States, Territories, and the District of Columbia Major Robert L. Martin.................................................................................................................................................... 30 TJAGLCS Practice Note Faculty, The Judge Advocate General’s Legal Center & School Tax Law Note Update for 2007 Federal Income Tax Returns Major Dana J. Chase........................................................................................................................................................ 70 Note from the Field E-Discovery Amendments to Federal Rules of Civil Procedure Celebrate First Anniversary Colonel John Siemietkowski ............................................................................................................................................. 77 Book Review American Patriot: The Life and Wars of Colonel Bud Day Reviewed by Major Kirsten M. Dowdy............................................................................................................................ 81 CLE News ........................................................................................................................................................................... 86 Current Materials of Interest ..................................................................................................................................... 95 The Army Lawyer Index for 2007 .................................................................................................................................... 99 Author Index ...................................................................................................................................................................... 99 Subject Index .................................................................................................................................................................... 101 Office of the Judge Advocate General Practice Note Index....................................................................................... 102 TJAGLCS Practice Notes Index .................................................................................................................................... 102 Notes from the Field Index ............................................................................................................................................. 103 USALSA Report Index.................................................................................................................................................... 103 Book Review Index.......................................................................................................................................................... 103 Individual Paid Subscriptions to The Army Lawyer.................................................................. Inside Back Cover DECEMBER 2007 • THE ARMY LAWYER • DA PAM 27-50-415 i The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency? Major John A. Hamner∗ It is at the level of the convening authority that an accused has his best opportunity for relief . .1 I. Introduction2 The recent decision of the U.S. Court of Appeals for the Armed Forces (CAAF) in United States v. Moreno raises the question of the viability and efficacy of the military post-trial process.3 In Moreno, the accused was convicted of rape and was sentenced to, among other punishments, confinement for six years.4 Despite a relatively short record of trial, it took the convening authority 490 days to take action on the case.5 From there, the case continued to have its processing woes, with the majority of the time (eighteen months) attributed to Moreno’s appellate defense counsel requesting additional time to file a defense brief.6 In total, 1688 days elapsed from the end of Moreno’s trial until the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) made its decision on his appeal.7 In determining that the lengthy post-trial processing time violated Moreno’s due process right to speedy review and appeal,8 the CAAF applied the four factors set forth in Barker v. Wingo.9 Responding to the lengthy time from trial to action, the CAAF adopted a 120-day “presumption of unreasonable delay [standard] that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial.”10 An appellant will still have to prove prejudice for processing that exceeds 120 days.11 In practice, Moreno will result in more copious tracking of delay, and staff judge advocates (SJAs) may not be as hesitant to forward cases to the convening authority for action when the defense has failed to timely submit matters for the convening authority’s consideration. Moreno’s impact, however, is more than just a commitment to more detailed tracking. It brings to the forefront the tension between the post- trial clemency and appellate review processes. The excessive delay in Moreno highlights the competing interests between the convening authority’s action and judicial review, both of which are steps in the appellate process.12 This conflict, at least in part, may be an attribute of a system in ∗ Judge Advocate, U.S. Army. Currently assigned to the Office of the Judge Advocate General, Administrative Law Division. LL.M., 2007, The Judge Advocate General’s School (TJAGLCS), U.S. Army, Charlottesville, Va.; J.D. 1997, Willamette University College of Law, Salem, Or.; B.A., 1993, Eastern Oregon State

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