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The Judge Advocate Journal, Bulletin No. 25, October, 1957

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The Judge Advocate Journal, Bulletin No. 25, October, 1957 Bulletin No. 25 October, 1957 The Judge Advocate Published By JUDGE ADVOCATES ASSOCIATION An affiliated organization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force Denrike Building Washington 5, D. C. JUDGE ADVOCATES ASSOCIATION Officers for 1957 • 1958 THOMAS H. KING, District of Columbia.......................................... President FREDERICK BERNAYS WIENER, Maryland....................First Vioo President PHILIP A. WALKER, Hawaii........................................S econd Vice President J. FIELDING JONES, Virginia........................................................... .Secreto;ry EDWARD F. GALLAGHER, District of Columbia .............................. Treasurer SHELDEN D. ELLIOTT, New York................................Delegate to A. B. A. Directors Penrose L. Albright, Va.; Louis F. Alyea, Va.; Joseph A. Avery, Va.; Marion T. Bennett, Md.; Franklin H. Berry, N. J.; John J. Brandlin, Calif.; E. M. Brannon, D. C.; Charles L. Decker, D. C.; John H. Finger, Calif.; Osmer C. Fitts, Vt.; James Garnett, D. C.; Reginald C. Harmon, D. C.; William J. Hughes, Jr., D. C.; Stanley W. Jones, Va.; Albert M. Kuhfeld, D. C.; William C. Mott, D. C.; Allen W. Rigsoy, Nebr.; Samuel A. Schreckengaust, Pa.; William J. Wertz, Kans.; S. B. D. Wood, Pa. Executive Secretary and Editor RICHARD H. LOVE Washington, D. C. Bulletin No. 25 Octo her, J.957 Publication Notice The views expressed in articles printed herein are not to be regarded as those of the Judge Advocates Association or its officers and directors or of the editor unless expressly so stated. TABLE OF CONTENTS PAGE You're in the Army-Now! ...................................................................... 1 The Annual Meeting............. ......................................................................... 14 Report of Committee on Hoover Commission Recommendations........ 25 The President's Report.................................................................... .............. 29 Supreme Court Reverses Self...................................................................... 32 Career Opportunities ...... .. ............................................................................ 35 McCaw Gets a Star........................ ............................................................. 37 Recent Decisions ............................................................................................ 38 What the Members Are Doing.................................................................... 50 Supplement to Directory.............................................................................. 52 Published by the Judge Advocates Association, an affiliated organ­ ization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force. Denrike Building, Washington 5, D. C. - STerling 8-5858 YOU'RE IN THE ARMY- NOW! by Lawrence H. Williams 1 The moment when a civilian enters unless he is subject to trial by the Army not only marks the begin­ court martial under laws in force ning of a new way of life for him, prior to the enactment of this but, in addition, marks the beginning title. * * *" of military jurisdiction over him as Similar language was contained in a s·oldier.2 A refusal to obey mili­ section 11 of the Selective Training tary orders prior to that moment is and Service Act of 1940 5 and sec­ not a violation of military law so as tion 6 of the Selective Draft Act of to subject him to trial by court­ 1917.6 martial,3 although a refusal to sub­ During World War I, induction of mit to induction is a violation of an individual into the Army occurred Federal law for which he may be at the "day and hour" he was or­ tried by civil authorities. dered to report to his local draft The Universal Military Training board for induction, although a final and Service Act, as amended,4 pro­ physical and mental examination tc vides pertinently: determine his fiitness for military "Sec. 12 (a) * * * No person shall service was subsequently conducted.7 be tried by court martial in any Since 1940, however, and at the pres­ case arising under this title unless ent time, induction is accomplished such person has been actually in­ subsequent to an individual's final ducted for the training and serv­ physical and mental examination for ice prescribed under this title or military fitness.s Therefore, his mere 1 Major, Judge Advocate General's Corps, United States Army, member of the Bar of Colorado, the United States Court of Military Appeals, and the Supreme Court of the United States. The opinions expressed in this article are those of the author and do not necessarily reflect the views of the Secretary of Defense, the Secretary of the Army, or The Judge Advocate General of the Army. 2 Article 2, Uniform Code of Military Justice, 10 U.S.C. 802. 3 Billings v. Truesdell, 321 U. S. 542, (1944) ; United States ex rel Dia­ mond v. Smith, 47 F. Supp. 607 (D. C. Mass. 1942); Stone v. Christensen, 36 F. Supp. 739 (D. C. Ore. 1940). 4 62 Stat. 662; 50 U.S.C. App. 462. 5 54 Stat. 885, 894. a 40 Stat. 76, 80. 7 Patterson v. Lamb, 329 U. S. 539 (1947). s Mobilization Regulations No. 1-7, October 1, 1940; Army Regulations 615-500, 1 September 1942; id. 10 August 1944, as amended; Special Regu­ lations 615-180-1, 27 April 1950; Special Regulations 615-180-1, 10 April 1953; Army Regulations 601-270, 5 April 1956. 1 2 The Judge Advocate Journal presence at an Army installation for sight. But he resolved that if he the purpose of undergoing such tests was not rejected at the induction does not subject him to military law station, he would not take the oath and he occupies a civilian status un­ but would turn himself over to the til his actual induction. civil authorities. He was ordered The leading case concerning induc­ by his local board to report on tion, and upon which almost all later August 12, 1942 and to proceed to cases are purportedly based, is Bill­ the induction center at Fort Leav­ ings v. Truesdell.9 enworth. He joined the group se­ The Billings case concerned the lected for induction and was trans­ trial by court-martial of one Billings ported to Fort Leavenworth where in 1942 for acts occurring prior to he and the others in his group induction while at an Army installa­ spent the night in the barracks. tion. The facts were stated by the The next morning after breakfast Supreme Court of the United States in the mess hall petitioner was to be as follows : given both the physical and mental "Billings claims to be a conscien­ examinations during which he tious objector. He registered un­ made clear to the examining of­ der the Act with Local Board No. ficials his purpose not to serve in 1 of Ottawa County, Kansas, stat­ the Army. He then reported to ing on his card at the time that the officer who passed on the re­ he would never serve in _the Army. sults of the examinations and who He was given a 1-B classification told him that he had been put in because of defective eyesight but Class 1-B. He then reported to the was reclassified as 1-A in January, induction office and told the officers 1942. The local board rejected his in charge that he refused to serve claim that he was a conscientious in the Army and that he wanted objector. He appealed to the board to turn himself over to the civil of appeal which affirmed the ruling authorities. They said that he was of the local board. Though peti­ already under the jurisdiction of tioner resolved never to serve in the military and put him under the Army, he desired to comply guard to prevent him from leaving with all of the requirements of the reservation. With their con­ Selective Service short of actual sent, however, he used the tele­ induction, so that he might avoid phone and procured the services all civil penalties possible. Accord­ of an attorney whom he retained ingly, he consulted with draft of­ to file a petition for habeas corpus ficials in Texas where he taught on his behalf. Thereupon an Army and concluded that taking the oath officer read petitioner the oath of was a prerequisite to induction induction which petitioner refused into the armed forces. He thought to take. He was advised that his he might be finally rejected by the refusal made no difference, that Army on account 'Of defective eye­ 'You are in the army now.' He 9 See note 3, supra. The Judge Advocate Journal 3 was then ordered to submit to fin­ that the reading of the induction gerprinting. He refused to obey. oath and other examinations at Fort Military charges were preferred Leavenworth did not serve to induct against him for willful disobedi­ Billings, as induction cannot be forc­ ence of that order. ibly accomplished against the will of "On August 14, 1942, petitioner the selectee; and that punishment of filed this petition for a writ of Billings must be left to the civil au­ habeas corpus alleging that he was thorities.10 The court also stated not a member of the armed forces that induction under regulations then of the United States, that he was in effect (March, 1944} took place at not subject to military jurisdic­ the time of the induction ceremony tion, and that if he had violated (including the taking of the true any laws they were the civil laws faith and allegiance oath}, that an of the United States. The writ is­ individual may not be inducted forc­ sued. Respondent filed a return ibly, and that the time when a se­ and a hearing was had at which lectee is inducted could be at the petitioner testified. The District time "he [voluntarily] undergoes Court discharged the writ and re­ whatever ceremony or requirements manded petitioner to respondent's of admission the War Department custody, holding that petitioner has prescribed". was subject to military jurisdic­ The regulations in effect in March, tion. 46 F. Supp. 663. The Circuit 1944 (AR 615-500, 1 Sep 1942, as Court of Appeals affirmed, holding changed by C4, 30 Mar 1943}, were that 'Induction was completed substantially identical with those in when the oath was read to peti­ effect at the time (1942) of Billings' tioner and he was told that he refusal to submit to induction (Mo­ was inducted into the Army.' bilization Regulations No.
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