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Mibtary Law Xeview I II I II Mibtary Law xeview SPECIFIED ISSUES IN THE UNITED STATES COURT OF MILITARY APPEALS: A RATIONALE Robinson 0. Everett USCMA AND THE SPECIFIED ISSUE: THE CURRENT PRACTICE William N. Early, Lizann M. Longstreet, and James S. Richardson SHOULD THERE BE A PSYCHOTHERAPIST PRIVILEGE IN MILITARY COURTS-MARTIAL? Major David L. Hayden THE SEAMY SIDE OF THE WORLD WAR I COURT-MARTIAL CONTROVERSY Colonel Frederick Bernays Wiener, AUS (Ret.) SOVIET MILITARY JUSTICE AND THE CHALLENGE OF PERESTROIKA Captain Jody M. Prescott ARTICLE 31(b): WHO SHOULD BE REQUIRED TO GIVE WARNINGS? Captain Manuel E.F. Supervielle PUBLICATION NOTES + wto Volume 123 Winter 1989 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-123 Washington, D.C., Winter 1989 MILITARY LAW REVIEW-VOL. 123 The Military Law Review has been published quarterly at The Judge Advocate General’s School, U.S. Army, Charlottesville, Vir- ginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research and is designed for use by military attorneys in connection with their official duties. Writings offered for publication should be of direct con- cern and import in this area of scholarship, and preference will be given to those writings having lasting value as reference material for the military lawyer. The Review encourages frank discussion of relevant legislative, administrative, and judicial developments. EDITORIAL STAFF CAPTAIN ALAN D. CHUTE, Editor MS. EVA F. SKINNER, Editorial Assistant SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Print- ing Office, Washington, D.C. 20402. Publication exchange subscrip- tions are available to law schools and other organizations that pub- lish legal periodicals. Editors or publishers of such periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other Federal agencies, and JAGC officers in the ARNGUS not on active duty should be addressed to the Editor of the Review. The editorial staff uses address tapes furnished by the US.Army Reserve Personnel Center to send the Review to JAGC officers in the USAR; Reserve judge advocates should promptly inform the Reserve Person- nel Center of address changes. Judge advocates of other military de- partments should request distribution from their service’s publica- tion channels. CITATION: This issue of the Review may be cited as 123 Mil. L. Rev. (number of page) (1989). Each quarterly issue is a complete, separately numbered volume. POSTAL INFORMATION: The Military Law Review (ISSN 0026- 4040) is published quarterly at The Judge Advocate General’s School, 1 U.S. Army, Charlottesville, Virginia 22903-1781. Second-class post- age paid at Charlottesville, Virginia and additional mailing offices. POSTMASTER: Send address changes to Military Law Review, The Judge Advocate General’s School, US. Army, Charlottesville, Vir- ginia 22903-1781. INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 included all writings in volumes 1 through 80, and replaced all previous Re- view indices. Volume 91 included writings in volumes 75 through 90 (excluding Volume 811, and replaced the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and were replaced by a cumulative index in volume 96. A cumulative in- dex for volumes 97-101 appears in volume 101, and a cumulative in- dex for volumes 102-111 appears in volume 111. Volume 121 contains a cumulative index for volumes 112-121. Military Law Review articles are also indexed in A Bibliography of Contents: Political Science and Government; Legal Contents (C.C.L.P.); Index to Legal Periodicals; Monthly Catalogue of United States Government Publications; Index to U.S. Government Periodi- cals; Legal Resources Index; three cornputenzed data bases, the Public Affairs Information Service, The Social Science Citation Index, and LEXIS; and other indexing services. Issues of the Military Law Re- view are reproduced on microfiche in Current US. Government Periodicals on Microfiche, by Infordata International Inc., Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. .. 11 MILITARY LAW REVIEW TABLE OF CONTENTS Title Page Specified Issues in the United States Court of Military Appeals: A Rationale Robinson 0. Everett. ................................ 1 USCMA and the Specified Issue: The Current Practice William N. Early, Lizann M. Longstreet, and James S. Richardson ................................ 9 Should There be a Psychotherapist Privilege in Military Courts-Martial? Major David L. Hayden.. ............................ 31 The Seamy Side of the World War I Court-Martial Controversy Colonel Frederick Bernays Wiener, AUS (Ret.) ........ 109 Soviet Military Justice and the Challenge of Perestroika Captain Jody M. Prescott ............................ 129 Article 31(b): Who Should be Required to Give Warnings? Captain Manuel E.F. Supervielle ..................... 151 Publication Notes ....................................... 215 iii SUBMISSION OF WRITINGS: Articles, comments, recent development notes, and book reviews should be submitted typed in duplicate, double-spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottes- ville, Virginia 22903-1781. Authors should also submit a 51/4 inch computer diskette containing their articles in an IBM-compatible format. Footnotes also must be typed double-spaced and should appear as a separate appen- dix at the end of the text. Footnotes should be numbered consecutively from the begin- ning to end of a writing, not chapter by chapter. Citations should conform to the Uni- form System of Citation (14th ed. 19861, copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal, and to Military Citation (TJAGSA 4th ed. 19881 (available through the Defense Technical Information Center, ordering number AD B124193 ). Masculine pronouns appearing in the text will refer to both genders unless the context indicates another use. Typescripts should include biographical data concerning the author or authors. This data should consist of grade or other title, present and immediate past positions or duty assignments, all degrees, with names of granting schools and years received, bar admissions, and previous publications. If the article was a speech or was prepared in partial fulfillment of degree requirements, the author should include date and place of delivery of the speech or the source of the degree. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of the Deputy Commandant of The Judge Advocate General’s School; the Director, De- velopments, Doctrine, and Literature Department; and the Editor of the Review. They are assisted by instructors from the teaching divisions of the School’s Academic De- partment. The Board submits its recommendations to the Commandant, TJAGSA, who has final approval authority for writings published in the Review. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions and conclusions reflected in each writing are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. The Board will evaluate all material submitted for publication. In determining whether to publish an article, note, or book review, the Board will consider the item’s substantive accuracy, comprehensiveness, organization, clarity, timeliness, original- ity, and value to the military legal community. There is no minimum or maximum length requirement. When a writing is accepted for publication, a copy of the edited manuscript will generally be provided to the author for prepublication approval. Minor alterations may be made in subsequent stages of the publication process without the approval of the author. Because of contract limitations, neither galley proofs nor page proofs are pro- vided to authors. Reprints of published writings are not available. Authors receive complimentary copies of the issues in which their writings appear. Additional copies are usually avail- able in limited quantities. They may be requested from the Editor of the Review. BACK ISSUES: Copies of recent back issues are available to Army legal offices in limited quantities from the Editor of the Review. Bound copies are not available and subscribers should make their own arrangements for binding if desired. REPRINT PERMISSION: Contact the Editor, Military Law Review, The Judge Advocate General’s School, US.Army, Charlottesville, Virginia 22903-1781. iv SPECIFIED ISSUES IN THE UNITED STATES COURT OF MILITARY APPEALS: A RATIONALE by Robinson 0. Everett* I. INTRODUCTION Most of the cases that reach the United States Court of Military Appeals are brought to it by an accused’s petition for review pursuant to article 67(b)(3) of the Uniform Code of Military Justice.’ An appel- late defense counsel, who has been appointed by The Judge Advocate General to represent the accused, files a supplement to the petition for review. This supplement seeks to persuade the court to exercise its discretionary jurisdiction to review the case. To this end, counsel will assign errors committed during the trial and review of the case. However, in a substantial number of cases the supplement filed in the Court of Military Appeals simply submits
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