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Headquarters, Department of the Army Department of the Army Pamphlet 27-50-442 March 2010 MILITARY JUSTICE SYMPOSIUM II Articles Judge Advocates Struggle with Aggravation Major Derek J. Brostek, USMC Throwing the Cloak over the Webcam: Recent Developments in Military Crimes Involving Indecent Conduct via Webcam Major Patrick D. Pflaum Everybody Cut Footloose: Recent Developments in the Law of Court-Martial Personnel, Guilty Pleas, and Pretrial Agreements Major S. Charles Neill “Physician Heal Thyself”: How Judge Advocates Can Commit Unlawful Command Influence Lieutenant Colonel Daniel G. Brookhart Special Victim Units—Not a Prosecution Program but a Justice Program Lieutenant Colonel Maureen A. Kohn Change—A Little Bit at a Time A Review of that Change in the Area of Professional Responsibility Major Jay L. Thoman USALSA Report CLE News Current Materials of Interest Editor, Captain Ronald T. P. Alcala 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 Virginia, for the official use of Army lawyers in the performance of their The Bluebook, A Uniform System of Citation (18th ed. 2005) and the legal responsibilities. Individual paid subscriptions to The Army Lawyer are Military Citation Guide (TJAGLCS, 14th ed. 2009). No compensation can available for $45.00 each ($63.00 foreign) per year, periodical postage paid at be paid 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. The opinions Government Periodicals. The Army Lawyer is also available in the Judge expressed by the authors in the articles do not necessarily reflect the view of Advocate General’s Corps electronic reference library and can be accessed The Judge Advocate General or the Department of the Army. Masculine or on the World Wide Web by registered users at feminine pronouns appearing in this pamphlet refer to both genders unless the http://www.jagcnet.army.mil/ArmyLawyer. context indicates another use. Address changes for official channels distribution: Provide changes to The Editor and Assistant Editor thank the Adjunct Editors for their the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center invaluable assistance. 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 TJAGLCS-Tech- Articles may be cited as: ARMY LAW., [date], at [first page of article], [email protected]. [pincite]. The Editorial Board of The Army Lawyer 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 MILITARY JUSTICE SYMPOSIUM II New Developments Administrative & Civil Law ....................................................................................................................................................... 1 Training Developments Directorate—Distributed Learning .................................................................................................. 2 Lore of the Corps The True Story of a Colonel’s Pigtail and a Court-Martial Fred L. Borch III ...................................................................................................................................................................... 3 Articles Judge Advocates Struggle with Aggravation Major Derek J. Brostek, USMC .................................................................................................................................................. 5 Throwing the Cloak over the Webcam: Recent Developments in Military Crimes Involving Indecent Conduct via Webcam Major Patrick D. Pflaum .......................................................................................................................................................... 15 Everybody Cut Footloose: Recent Developments in the Law of Court-Martial Personnel, Guilty Pleas, and Pretrial Agreements Major S. Charles Neill ............................................................................................................................................................. 31 “Physician Heal Thyself”: How Judge Advocates Can Commit Unlawful Command Influence Lieutenant Colonel Daniel G. Brookhart .................................................................................................................................... 56 Special Victim Units—Not a Prosecution Program but a Justice Program Lieutenant Colonel Maureen A. Kohn ........................................................................................................................................ 68 Change—A Little Bit at a Time A Review of that Change in the Area of Professional Responsibility Major Jay L. Thoman ............................................................................................................................................................... 78 USALSA Report U.S. Army Legal Services Agency Trial Judiciary Note A View from the Bench: Findings, Sentencing, and the “Good Soldier” Colonel Mike Hargis ............................................................................................................................................................ 91 CLE News .................................................................................................................................................................. 95 Current Materials of Interest ................................................................................................................................. 105 Individual Paid Subscriptions to The Army Lawyer ........................................................................ Inside Back Cover MARCH 2010 • THE ARMY LAWYER • DA PAM 27-50-442 New Developments Administrative & Civil Law Military Personnel Law Legal Assistance “Don’t Ask, Don’t Tell”—Update Eligibility for Legal Assistance—Former Spouses On 25 March 2010, Secretary of Defense Robert Gates announced Department of Defense (DoD) implementation The Legal Assistance Policy Division was recently changes to the “Don’t Ask, Don’t Tell” policy. The asked to revisit the question of whether former spouses are modifications affect DoD Instructions 1332.142 and eligible for legal assistance services. In the process of 1332.30.3 Specific items of interest include: only a general denying service to one potential client, a legal assistance officer (GO) may initiate a fact-finding inquiry or office discovered that the glossary section of AR 27-3, The administrative separation for homosexual conduct; only an Army Legal Assistance Program, provides “[a]s to eligibility O-5 or above may conduct a fact-finding inquiry; only a GO for legal assistance, ‘family members’ include,” among may separate a Soldier for homosexual conduct; “credible others, “[a] sponsor’s former spouse who is eligible for information” required for initiating the fact-finding inquiry commissary and exchange privileges under the Uniform should be given under oath and reliance on hearsay should Services Former Spouses Protection Act and applicable be dissuaded; a “reliable person” who may have motivation regulations.”1 to harm a Soldier by raising an allegation should be carefully scrutinized; and information from or provided to the Based on the legal assistance office’s request for following sources will not be used to substantiate clarification, the Legal Assistance Policy Division reviewed homosexual conduct discharges: lawyers, clergy, the history of former spouse eligibility and found the psychotherapists (Military Rules of Evidence 5024 and following. 5135), medical or public health professionals for the purposes of treatment, professionals involved in domestic or (1) The Uniform Services Former Spouses physical abuse assistance, and security clearance Protection Act (USFSPA) was part of the investigations. All changes are effective immediately and 1983 DoD Authorization Act. The shall be applied to existing matters. USFSPA allowed for the divisibility of military retired pay during a divorce action. It also granted certain benefits to Army Substance Abuse Program (ASAP), Army Regulation qualified 20/20/20 spouses. These benefits (AR) 600-85 include medical, commissary and PX benefits. It did not include Legal The Department of the Army issued a Rapid Action Assistance within the list of eligible Revision (RAR) to AR 600-85, The Army Substance Abuse benefits.
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