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Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-446 July 2010 Articles “I Won’t Participate in an Illegal War”: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders Captain Robert E. Murdough United States v. Blazier: So, Exactly Who Needs an Invitation to the Dance? Major David Edward Coombs TJAGLCS Practice Notes Faculty, The Judge Advocate General’s Legal Center & School Criminal Law Notes Spice—“I Want a New Drug” Major Andrew Flor Substantive Crimes and Defenses—Lesser Included Offenses Update: United States v. Jones Major Patrick D. Pflaum Claims Report USALSA Report Book Reviews 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 The Army Lawyer articles are indexed in the Index to Legal Periodicals, by The Judge Advocate General’s Legal Center and School, Charlottesville, the Current Law Index, the Legal Resources Index, and the Index to U.S. Virginia, for the official use of Army lawyers in the performance of their Government Periodicals. The Army Lawyer is also available in the Judge legal responsibilities. Individual paid subscriptions to The Army Lawyer are Advocate General’s Corps electronic reference library and can be accessed available for $45.00 each ($63.00 foreign) per year, periodical postage paid at on the World Wide Web by registered users at http://www.jagcnet.army. Charlottesville, Virginia, and additional mailing offices (see subscription form mil/ArmyLawyer. on the inside back cover). POSTMASTER: Send any address changes to The Judge Advocate General’s Legal Center and School, 600 Massie Road, Address changes for official channels distribution: Provide changes to ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center expressed by the authors in the articles do not necessarily reflect the view of and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, The Judge Advocate General or the Department of the Army. Masculine or Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension feminine pronouns appearing in this pamphlet refer to both genders unless the 3396) or electronic mail to [email protected]. context indicates another use. Articles may be cited as: ARMY LAW., [date], at [first page of article], The Editor and Assistant Editor thank the Adjunct Editors for their [pincite]. invaluable assistance. The Board of Adjunct Editors consists of highly qualified Reserve officers selected for their demonstrated academic excellence and legal research and writing skills. Prospective candidates may send Microsoft Word versions of their resumes, detailing relevant experience, to the Technical Editor at [email protected]. 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 interest to military lawyers. Articles should be submitted via electronic mail to [email protected]. Articles should follow The Bluebook, A Uniform System of Citation (19th ed. 2010) and the Military Citation Guide (TJAGLCS, 15th ed. 2010). No compensation can be paid for articles. New Developments Administrative and Civil Law ................................................................................................................................................... 1 Lore of the Corps Judge Advocates in the Empire of Haile Sellasie: Army Lawyers in Ethiopia in the Early 1970s Fred L. Borch III ...................................................................................................................................................................... 2 Articles “I Won’t Participate in an Illegal War”: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders Captain Robert E. Murdough ..................................................................................................................................................... 4 United States v. Blazier: So, Exactly Who Needs an Invitation to the Dance? Major David Edward Coombs ................................................................................................................................................... 15 TJAGLCS Practice Notes Faculty, The Judge Advocate General’s Legal Center & School Criminal Law Notes Spice—“I Want a New Drug” Major Andrew Flor .................................................................................................................................................................. 23 Substantive Crimes and Defenses—Lesser Included Offenses Update: United States v. Jones Major Patrick D. Pflaum .......................................................................................................................................................... 27 Claims Report U.S. Army Legal Services Agency Claims Notes The Judge Advocate General’s Award for Excellence in Claims Colonel R. Peter Masterton ...................................................................................................................................................... 31 Foreign Claims—Not Just for Overseas Offices Douglas Dribben ..................................................................................................................................................................... 34 USALSA Report U.S. Army Legal Services Agency Trial Judiciary Note A View from the Bench: “You Don’t Know What You Don’t Know” Major Matthew McDonald ....................................................................................................................................................................... 38 Book Reviews Reagan’s Secret War Reviewed by Major Joe Schrantz .............................................................................................................................................. 41 CLE News .................................................................................................................................................................. 45 Current Materials of Interest .................................................................................................................................. 56 Individual Paid Subscriptions to The Army Lawyer Inside Back Cover JULY 2010 • THE ARMY LAWYER • DA PAM 27-50-446 New Developments Administrative & Civil Law AR 600-20, Army Command Policy RAR: 27 April 2010 The following Army Regulations have been recently Changes: Places the authority to initiate an inquiry into updated. The list is not all inclusive, and the highlighted homosexual conduct with a commander in the Soldier’s changes do not necessarily address all the revisions made to chain of command in the grade of O-7 or higher. Any these particular regulations. Attorneys should regularly person the O-7 commander appoints to conduct the consult the U.S. Army Publishing Directorate’s website inquiry must be in the grade of O-5 or higher. Requires (http://www.army.mil/usapa/index.html) for updates to third parties providing information regarding Army publications, including regulations and pamphlets. homosexual conduct to do so under oath. Defines All updated regulations feature a “Summary of Change” “unreliable person” and prohibits certain categories of section that outlines pertinent revisions. information from being used as evidence in the fact- finding inquiry. • AR 135-175, Officer Separations RAR: 27 April 2010 • AR 635-200, Active Duty Enlisted Administrative Changes: Deletes the word “limited” from describing Separations the circumstances that an officer can use to show that Rapid Action Revision (RAR): 27 April 2010 retention by the Separation Board/Authority is Changes: Places the authority to separate enlisted warranted. Removing the word “limited” clarifies for personnel under Chapter 15, Discharge for Homosexual the Separation Board/Authority that the circumstances Conduct, with a general officer commander in the warranting retention are not necessarily rare. Soldier’s chain of command, of equal grade or senior to the commander initiating a fact-finding inquiry or • AR 135-178, Enlisted Administrative Separations separation. Only a commander in the Soldier’s chain of RAR: 27 April 2010 command in the grade of O-7 or higher is authorized to Changes: Places the authority to separate enlisted initiate separation proceedings on the basis of alleged personnel under Chapter 15, Discharge for Homosexual homosexual conduct.—Major Todd A. Messinger. Conduct, with a General Officer commander in the Soldier’s chain of command, of equal grade or senior to the commander initiating a fact-finding inquiry or separation. Only a commander in the Soldier’s chain of command, in the grade of O-7 or higher, is authorized to initiate separation proceedings on the basis of alleged homosexual conduct. • AR 600-8-24, Officer Transfers and Discharges RAR: 27 April 2010 Changes: Deletes the word “limited” from describing the circumstances that an officer can use to show that retention by the Separation Board/Authority is warranted. Removing the word “limited” clarifies for the Separation
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