Bulletin No. 19 Febraary, 1955 The Judge.Advocate

Published By .JUDGE ADVOCATES ASSOCIATl8N An affiliated organization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force

312 Denrlke Balldlng Washington 5, D. C. - JUDGE 'ADVOCATES ASSOCIATION Officers for 1954-1955 G-ORDON SIMPSON, Texas Presi,dent ROBERT G. BURKE, New York.------!-----.Fir&t Vice President THOMAS H. KING, Maryland______Bec

Bull.,tin No. 19 February, 1955

Publication Notiee 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 Self-Incrimination Refined ------·------­ 1 Reconsideration-A New Weapon in Pleading______7 Military Justice in the ROK Army______19 Announcement of New DfrectorY------·---"----­ 32 Book Reviews : Military Law ------33 Legal Contr ols of International Con,flict______35 Military Government Courts in Germany______39 Notes on Current Procurement Opinions ______41 Recent Decisions of the Court of Military Appeals______47 What the Members Are Doing______58

Published by the Judge Advocates Association, an affiliated organiza­ tion of the American Bar Association, composed of lawyers of all com­ ponents of the Army, Navy, and Air Force. 312 Denrike Building, Washington 5, D. C. - STerling 3-5858 SELl1 -INCRl~llNATION REFINED By Col. J. F. Rydstrom *

When President Truman prescribed and that evidence obtained in viola­ the Manual for Courts-Martial, 1951,1 tion of the privilege was inadmissible. it is not likely that he intended to pro­ These decisions were reinforced by mulgate any rules which might work one on voice identification, United injustice for members of the armed States v. Greer,6 in which it was held forces. Whatever his intentions, how­ equally a violation of Article 31 to ever, the United States Court of Mili­ direct that accused speak up during tary Appeals has, in several recent trial so that a witness could identify' decisions involving the privilege his voice. against self-incrimination, declared These decisions are in direct con­ that he did so.2 travention of the Manual for Courts­ The first of these decisions was Martial, 1951, which specifically pro­ United States v. Rosato,3 followed vides that the privilege against self­ closely by United States v. Eggers,4 incrimination is not violated by re­ in which a unanimous Court deter­ quiring an accused to furnish exem­ mined that Article 31 of the Uniform plars of handwriting or voice: Code of Military Justice 5 permits an accused to refuse to make a sample of "The prohibition against compelling his handwriting. It held that requir­ a person to give evidence against him­ self l·elates only to the m;e of compul­ ing the accused to do so violated his sion in obtaining from him a verbal privilege against self-incrimination or other communication in which he * SJA, MATS, Pacific Division. Col. Rydstrom is a member of the Ohio bar. 1 EO 10214, 8 Feb. 1951, 16 F. R. 1303. 2 The Court has not hesitated on several other occasions to consider whether particular provisions of the Mal'lual for Courts-Martial, 1951, were in con­ flict with the Uniform Code of Military Justice. For example, it early deter­ mined that the rules in par. 73 of the Manual, on instructions, were inadequate (US v. Clark, (No. 190), 2 CMR 107), discussed superior competent author­ ity for appointment of a court (US v. LaGrange, (No. 313), 3 CMR 76), and held bread and water punishment illegal when imposed by court-martial (US. v. Wappler, (No. 1457), 2 USCMA 393, 9 CMR 23). More recently, it held that the individuals designated to take depositions for use in a general court­ martial must be qualified to act as counsel before a general court-martial de­ spite an indication in par. 117a of the Manual to the contrary (US v. Drain, (No. 4510), 4 USCMA 646, 16 CMR 220). 3 US v. Rosato, (No. 1375), 3 USCMA 143, 11 CMR 143. 4 US. v. Eggers, (No. 1990), 3 USCMA 191, 11CMR191. 5 50 USC 602. 6 US v. Greer, (No. 3155), 3 USCMA 576, 13 CMR 132. 1 2 The Judge Advocate Journal

expresses his knowledge of a matter this, however, and I do question not and does not forbid compelling him only their right, but the wisdom, of to exhibit his body or other physical rewriting the Manual in a case-by­ characteristics as evidence when such evidence is material. Consequently, case, ex post facto fashion. it is not a violation of the prohibition My first concern is that judicial de­ to order a person (including an ac­ cisions interpreting the Fifth Amend­ cused) to expose his body for exami­ ment to the Constitution do not sup­ nation by the court or by a physician who will later testify as to the result port the Court's determination. My of his examination. Upon refusal to second concern is with the effect of obey the order, the person's clothing this determination upon the quality may be removed by force. Also, the of justice at the trial level. prohibition is not violated by requir­ ing a person (including an accused) On the basis of existing law, the to try on clothing or shoes, to place Court could not judicially enforce its his feet in tracks, to make a sample view that demanding an exemplar of of his handwriting, to utter words for handwriting or of voice from an ac­ the purpose of voice identification, or cused violated the privilege against to submit to having fingerprints or a sample of his blood taken." (Em­ self-incrimination. Article 31 (a) pro­ phasis added.) 7 vides, very simply:

The Court stated that, in Article "No person subject to this code shall compel any person to incrimi­ 31(a), Congress intended to secure to nate himself or to answer any ques­ persons subject to the Code the same tion the answer to which may tend to rights secured to members of the incriminate him." civilian community under the Fifth Amendment to the Constitution, "no Nowhere does Article 31 define what more and no less." s The Court then physical conduct falls within the scope proceeded to determine that certain of the privilege against self-incrimi­ phrases of the Manual, quoted above, nation, but each of the four subpara­ were violative of Article 31 because graphs of the Article, including the they did not secure to a person sub­ one cited above, makes specific refer­ ject to the Code this same standard of ence to expressions of knowledge: justice. "To answer any question," "To make any • statement," and finally, "No Had the justices of the United statement obtained * * *." A layman States Court of Military Appeals been reading the Article might, in his inno­ directed to rewrite the Manual, I have cence, reasonably conclude that testi­ no doubt of their right to choose that monial compulsion was the intended rule of law they deemed best, and to prohibition.9 propose it for adoption by the armed The last paragraph of Article 31 forces. They were not asked to do establishes the manner in which the

1 MCM 1951, par. 150b, p. 284; 16 F. R. 1384. s US v. Eggers, supra, 11 CMR 191, 195. 9 The Fifth Amendment to the Constitution is perhaps more general in this regard, providing only that no person "shall be compelled in any criminal case to be a witness against himself." The intended scope of the prohibition is to be found only in judicial interpretations. The Judge Advocate Journal 3

prohibition against self-incrimination There is no decision of a United may be judicially enforced: States District Court which has ap­ "No statEment obtained from any plied a rule of evidence inconsistent person in violation of this Article, or with that prescribed by the President through the use of coercion, unlawful for use in courts-martial. There is influence, or unlawful indu~errent nothing in Article 31 itself which shall be received in evidence against him in a trial by court-martial." (Em­ shows the rule prescribed to be con­ phasis added.) trary to or inconsistent with the code. Lacking a statutory definition of what In point of fact, the rule in the physical conduct Congress had in­ Manual quoted above is based upon a tended should come within the pro­ decision of the United States Supreme scription of the Article, the President Court written by Mr. Justice Holmes prescribed the rules to be applied at in the Holt case: 11 the trial level. These rules set forth "It is objected that [the accused in the Manual were clear, consistent, put on a blouse] under the same and concise. duress that made his statement in­ The promulgation of a rule of evi­ admis~ible, and that it should be ex­ dence to cover this situation was cluded for the same reasons. But the clearly within the President's author­ prohibition of compelling a man in a criminal court to be a witness against ity to prescribe. In fact, Congress himself is a prohibition of the use of directed him to do so in Article 36 of physical or moral compulsion to ex­ the Uniform Code of Military Jus­ tort cornrnunications from him, not an tice: 10 exclusion of his body as evidence when it may be material." (Emphasis "(a) The procedure, including addEod.) 12 modes of proof, in cases before courts­ martial, courts of inquiry, military Opposed to this as the "Federal rule" commissions, and other military tri­ bunals may be prescribed by the Presi­ is certain dicta, based on no discover­ dent by regulations which shall, so able precedent, appearing in the Dean far as he deems practicable, apply the case, a Court of Appeals decision: principks of law and the rules of evidence generally recognized in the "The defendant's constitutional trial of criminal cases in the United privilege of refraining from giving States district courts, but which shall evidence against himself by word of not be contrary to or inconsistent with mouth, or by furnishing specimens of this code." his handwriting." 13

10 50 use 611. 11 Holt v. US, 218 US 245, 31 S. Ct. 2, 54 Led 1021; Legal and Legislative basis, MCM 1951, p. 238. 12 The United States Court of Military Appeals dismissed the Supreme Court's rule a~ dicta apparently not worthy of its attention. Judge Quinn cited the case in the Rosato decision as standing for the rule that an accused may be required to try on a garment to determine its fit, but dropped it after recognizing the Manual's reliance on it. Judge Brosman in the Eggers case ignored the Supreme Court's dicta, professing to find a single "-and faint­ guiding light" in dicta of the Dean case of 5th Circuit Court of Appeals, re­ ferred to hereafter. · 13 Dean v. US, 246 F. 568, 577. ' The Judge Advocate Journal As to an exemplar of handwriting, cally, the President declared the latter there was only one case in point, from to be the law on the subject for the the Philippine Islands, upon which the armed forces. This rule of evidence United States Court of Military Ap­ established by the President could not peals could find to rely,14 together reasonably be disregarded by the with what the Court deemed to be the United States Court of Military Ap­ rule in Texas.15 As to voice identi­ peals in the absence of any clear au­ fication, the Court relied upon certain thority to support its own views.ls state court cases 16 which were pat­ ently distinguishable on the facts, and For the clear, consistent, and con­ ignored a Pennsylvania Supreme cise rule of evidence prescribed by the President to define the limits of Court decision 17 which was directly in point but contrary to its own opin­ the privilege against self-incrimina­ ion of what the law should be. tion, the United States Court of Mili­ tary Appeals substituted a new and The important consideration is that refined rule to measure the physical there exists no Federal court decision conduct which is included within the contrary to the rule prescribed by the privilege. This new rule is based on President. It was not only his right "active participation" and "affirm­ but his duty, as directed in the basic ative conduct." If more than "passive law, to prescribe a rule of evidence to coopel'ation" is required of an accused encompass this situation in which in producing incriminatory evidence, there were two Federal court cases then his privilege against self-incrim­ with dicta on the subject: one the ination is violated. Dean case by a Circuit Court, the other the Holt case by the United This is no simple rule to apply. No States Supreme Court. Not illogi­ sooner was it promulgated than the

14 Beltran v. Samson and Jose, 53 Phil. Is. 570. 15 Compa1·e Kennison v. State, 97 Tex. Cr. R. 154, 260 SW 174, with Cox v. State, 126 Tex. Cr. R. 202, 70 SW 2d 1005. io Beachem v. State, 144 Tex. Cr. R. 272, 162 SW 2d 706; State v. Taylor, 213 SC' 330, 49 SE 2d 289. 17 Johnson v. Commonwealth, 115 Pa. 369, 9 At!. 78. For a competent dis­ cussion of the cases, see CM 366858, 13 CMR 450, 454. 18 Obviously, the President did not write the Manual himself. (Legal and Legislative Basis, MCM 1951, p. VI.) It was the consolidated effort of a num­ ber of service lawyers under the overall direction of Mr. Felix Larkin, General Counsel for the Secretary of Defense, who had worked directly with Congres­ sional Subcommittees which drafted the Uniform Code of Military Justice. Drafts of the Manual were prepared and numerous changes made by him, as well as by The Judge Advoeates General, the Attorney General, the Bureau of the Budget, and the Director of Archives. In addition, the chapter on Evi­ dence was submitted for comment to Professor Edmund M. Morgan, Jr., head of the "Morgan Committee" which drafted the Uniform Code of Military Jus­ tice for Congress. None of the many and experienced attorneys who worked on and reviewed the Manual for Courts-Martial, 1951, in draft form, ever recorded a doubt a·s to the justice and correctness of this rule of evidence under .discussion. The Judge Advocate Journal court divided upon what it had meant His theory appears to be that an s by it. Confronted with a case involv­ cused may legally be O'rdered to ing the extraction of urine from an that which he can, with equal legalit unconscious soldier by means of a refuse to permit. This view has t catheter,rn two of the justices found effect of making an accused's leg only "passive cooperation," physical rights during interrogation depe: conduct which was beyond the scope upon the extent of his prior leg of Article 31. The chief judge, how­ knowledge, the very antithesis of t ever, found this to be as repugnant to protection intended by Congress Article 31 as obtaining exemplars of Article 31.~1 handwriting and voice because the un­ These observations upon "the nE conscious accused did not consent to rule" bring me to my second, a1 such a shocking invasion of his per­ more important, concern: the elf€ son. upon the quality of justice at the tri In the next case to come before the level of such decisions as those in t' Court, accused was conscious but vol­ cases of Rosato, Eggers, and GreE untarily cooperated in furnishing a Military lawyers in the armed fore urine sample by means of catheter­ recognize that their chief obligati, ization.20 Judge Latimer held that is toward the effective administrati• Article 31 does not apply to obtaining of justice at the trial level, and e urine specimens because reasonable perience has shown that the quali coercion is permissible in obtaining of justice at that level is not improv such evidence; Judge Quinn found ac­ by nice qualifications of justice. No' cused consented; and Judge Brosman, refinements serve only to confuse ti "after some hesitancy," concluded administration of military justice. there was more than acquiescence al­ To the serviceman seeking the tru though the case was "distinctly a close in military law, the Manual f one" as to consent. He expressed his Courts-Martial, 1951, is the Bible. view as being that: The rules, procedures, and injun tions set forth therein carry no le "* * * a suspected person may not weight for him than does Gospel f, lawfully be subjected to catheteriza­ the true believer. Where the Manu tion over his protest. However, I am is concerned, there are no unbelieve sure that neither a suspect nor an ac­ cused need be warned that he is not in the armed forces for the Preside required to permit this procedure." is Commander-in-Chief and his i'

19 US v. Williamson, (No. 3898), 4 USCMA 320, 15 CMR 320. 20 US v. Booker, (No. 3836), 4 USCMA 335, 15 CMR 335. 21 At the time of writing, the decision in US v. Barnaby, (No. 4752), USCMA 63, 17 CMR 63, has been published which confirms the three diverge1 opinions of the three membus. Accused furnished a urine sample when o dered to do so, and the Chief Judge, dissenting, found that this was requirir him to furnish evidence against himself in violation of Article 31. The m jority held there is no privilege to refuse to furnish a sample of body fluid. 22 The Court itself has so recognized on numerous occasions, e.g., US Hemp, (No. 290), 1 USCMA 280, 3 CMR 14, 19; US v. Drain (No. 4510), USCMA 646, 16 CMR 220, 223. 6 The Judge Advocate Journal structions are the law. Decisions ular case may have been settled, but which impugn this judicial Bible are the next case will present a variation sacrilege. not readily perceptible which, in that The Manual for Courts-Martial, next case, will be found to have re­ 1951, was written, not for appellate quired a wholly different result by the judges, but for law enforcement of­ United States Court of Military Ap­ ficials, attorneys, and court members peals. The Williamson and Booker at the working level, for those who cases on extraction of body fluids are are actually involved in catching crim­ in point. Boards of Review had dis­ inals and trying cases. At this level, tinguished the rule of Rosato, Eggers, clarity and consistency produce a bet­ and Greer to their satisfaction in such ter quality of justice than legal sub­ cases.23 Fortunately for the stability tlety. Danger lies in the familiarity of the law, a majority of the United with the law of appellate judges States Court of Military Appeals which permits them to disregard pro­ agreed there was a distinction, but visions of the Manual. This familiar­ note-the distinction was not so clear ity is felt most vitally at the trial that all members of the Court agreed level where it breeds contempt of that on the result. Had one judge hesi­ entire volume as an authoritative tated further, the uncertainty would source of guidance. have increased. When the President establishes In conclusion, it may be said that rules of evidence in accordance with the Rosato, Eggers, and Greer deci­ a mandate of Congress, those rules sions violated Article 36(a) of the are not lightly to be disregarded by Code, were unjustified by precedent, a military officer who is appointed by unwarranted by their facts, and un­ the President. The service lawyer wise because of the uncertainty cre­ who follows those rules, and is de­ ated. A summary dismissal of a clared to have been wrong, has no­ provision of the serviceman's Bible, where to turn because the law has be­ the Manual for Courts-Martial, 1951, come entirely a matter of what the creates a disrespect for that impor­ judges say it is. He can only await tant document which can serve only to with apprehension the next pro­ impair the quality of justice at the nouncement. The law of his partic­ trial level.

:?~ACM 8386, Brints, 15 CMR 818; ACM S-7345, Milton, 13 CMR 747.

Use the Directory of Members when you wish local counsel in other juris­ dictions. The use of the Directory in this way helps the Association perform one of its functions to its membership and will help you. You can be sure of getting reputable and capable counsel when you use the Directory of Members. Reconsideration -A New \Veapon in Pleading By George S. Prugh, Jr.*

A recent line of decisions from the rective from the Court of Military United States Court of Military Ap­ Appeals to act in further considera­ peals and from Army boards of re­ tion of the case. A new field was view has revealed the presence of a thus opened for speculation, and the gap in the Uniform Code of Military problems were not long in appearing. Justice and the Manual for Courts­ If the board of review could write a Martial, 1951. This lacuna, an im­ decision on a case, send the decision portant one respecting jurisdiction, on its way, and some time later re­ is currently being filled by "judicial call that decision and reverse itself, legislation" but in a painfully slow where was the certainty so necessary and uncertain manner. Stated simply, in the action of an appellate body? the question is: who has jurisdiction Could the board of review be solicited over a particular case after the board by appellate counsel to reconsider its of review has written its opinion and decision? If so, how was this to be before the Court of Military Appeals done-by petition, by hearings, by acts on the accused's petition? Stated motions and arguments? Were the another way: when does the board of boards required to issue supplemen­ review lose jurisdiction over one of tary decisions ruling upon these peti­ its cases? tions or motions? Was there any The problem was first revealed in point short of action by CMA that May of 1952 when CMA, obviously would deprive the board of the power impressed at the time by its own to reconsider? Did the transmittal great back-log of cases, ruled that a of the decision by TJAG have any board of review has discretion to re­ effect upon the jurisdiction? What consider its own decision unless an was the effect of all of this upon the appeal has been taken to the Court time limitation for petitioning placed of Military Appeals (United States upon the accused? These and many v. Reeves (No. 453), 1 USCMA 388, other allied questions loomed before 3 CMR 122). This doctrine was some­ the widening eyes of the persons what surprising to those who had charged with these matters. felt, as the board of review in the The importance of the concept was Reeves case had, that jurisdiction was readily apparent. In these days when lost to the board when it rendered it is not unusual for a certified case its decision, in the absence of a di­ to take one year from time of trial

*.The author, a Major of the Judge Advocate General's Corps, is currently assigned to the Opinions Branch, Military Justice Division, OJAG, Department of the Army. 7 8 The Judge Advocate Journal until final appellate action, or for the quasi-judicial bodies"-the court-mar­ same processes to take a year and tial (trial court), the board of review a half in petitioned cases, it becomes (appellate forum), or the Court of of the utmost significance to deter­ Military Appeals (appellate court). mine what forum should receive peti­ The Judge Advocate General was tions for new trial or motions for re­ llefinitely not in the direct line of ap­ consideration when, for example, a pellate succession between the board recent pronouncement of the law over­ and the Court of Military Appeal&. rules a formerly well-accepted doc­ The Judge's third point was that the trine or for action upon the case when board's corrective power should at the accused becomes insane. Refer­ least extend to ( 1) clerical enors, ring the matter to the wrong forum (2) inadvertently entered decisions, would cause considerable delay in and (3) decisiom which are clearly the already lengthy proceedings. wrong as a matter of law. Next, it was >aid that the board did not oust Judge Latimer, author of the Reeves itself of jurisdiction for these pur­ opinion, did set forth some guides poses merely because it had signed for a solution to the problem. First the decision and transmitted it to The of all, he made it clear that once jur­ Judge Advocate General. Finally, as isdiction had vested in the Court of a caveaL, it was made abundantly Military Appeals the board of review plain that The Judge Advocate Gen­ is without authority to act in the C'ral was without a right to return the case without some direction from ca;;e to the board upon his own initia­ CMA. The opinion suggests, without tive. so stating, that CMA would have the jurisdiction if: (1) the action in­ On the ba,;is of the Reeves case, volved a mandatory appeal, as in a then, when does the board of review general or flag officer case of a death lose its power to reconsider its own sentence IArticle 67 (b) (1)]; (2) the decision? If TJAG has certified the accused had been served with the case, then of course the board is board of review opinion; (3) the ac­ without jurisdiction and if CMA has cused had petitioned CMA for a grant received a petition from the accused of review [Article 67 (b) (3)]; ( 4) the board is likewise deprived of the or The Judge Advocate General had power to act. But no deep study is certified the case to CMA [Article required to see that there is still a 67(b) (2) ]. This dicta would have gaping hole in the jurisdictional gar­ served as a rule easy of application ment-the area lying between the had it not been for the rather unfor­ writing of the board's opinion and tunate wording of the second cate­ the point at which the case either be­ gory, and a subsequent remark that comes final or jurisdiction vests in CMA. "unle~s an appeal to [CMA] has been taken'', a board of review has the Article 67(c), Uniform Code of discretion to reconsider its decision. Military Justice, provides that "The As a second basic rule, Judge Lati­ accused shall have thirty days frorr. mer said that jurisdiction was at all the time he is notified of the decision time5 in one of the three "judicial or of the board of review to petition the The Judge Advocate Journal 9

Court of Military Appeals for a grant before the counsel's, the latter's was of review. The court shall act upon first received by the appellate body. such a petition within thirty days of Agreeing with the ruling by the board the receipt thereof". Suppose the of review that it was without juris­ board renders its decision, TJAG does diction to act, Judge Brosman noted not certify the case but instead for­ that under CMA's rule (Rule 22(b), wards the decision to the convening United States Court of Military Ap­ authority and directs that action peals Rules of Practice and Proce­ be taken in accordance therewith, and dure) the petition was deemed to have the convening authority acts accord­ been tiled with CMA when it was "de­ ingly, serving the decision upon the posited in military channels for trans­ accm;ed and advising him of the start­ mittal", and that as soon as. it was ing of the thirty day period. Suppose so deposited, the petition operated to further that the accused decides af­ vest in CMA jurisdiction over the ter a couple of weeks, that he should case. It was unnecessary for the petition the board of review for re­ court to decide whether the filing of consideration. What effect does his a motion for reconsideration by a petition have upon the thirty day pe­ board of review suspends the running riod? Or let us suppo~e that ac­ of the period within which a con­ cused's counsel petitions the board of victed accused may petition CMA. review and that the accused himself, The opinion does not make it clear usually at some place far removed whether the determining factor was from the Washington area where his the filing of the petition to CMA be­ Defense Appellate Counsel operates, fore the making of the motion to the without informing his counsel, peti­ board of review [in other words, that tions CMA. Which petition controls? the first in time determines], or Furthermore, when does the accused whether any special significance petition-when he signs it, when he should be attached to the source of delivers it to military channels, when the petition [in other words, that the it is received, or at some other less accused's action would take prece­ definite point in time? dence over a contrary action by his In February 1953, CMA had occa­ counsel], but a fair reading of Judge .sion to cast additional light upon this Brosman's opinion gives the clear im­ matter in the case of United States pression that "first in time" is the v. Jackson (No. 1052) 2 USCMA 179, rule to be applied. As will become 7 CMR 55. Judge Brosman, in one apparent later in this discussion, it is of those all too rare cases where one pertinent to note that Judge Brosman judge is speaking for the entire court, did not refer to the transmittal to or dealt with a case where the accused by TJAG of the board's decision as and his counsel each forwarded within having any particular bearing on the the thirty day period a petition, the question of when the board of review accused sending his to CMA and the loses jurisdiction to act. Clearly he counsel sending his to the board of reasoned the board had lost its juris­ review. Although the accused's peti­ diction because the accused had peti­ tion was lodged in military channels tioned CMA, not otherwise. The opin­ 12 The Judge Advocate Journal was not re-argued before the board because the accused had already peti­ until 1 July 1952, it should be a fair tioned CMA, but appellate defense assumption that the accused had re­ counsel then appeared before CMA to ceived notice of the board's original withdraw accused's petition, and the decision before the motion to recon­ board was then reinvested with juris­ sider was made. Shortly afterwards, diction to reconsider the case; CM in a case factually similar in this re­ 361098, Xe111H'I', 10 CMR 478, where g·ard to the Brown case, an Air Force the board received a second motion board acted to reconsider in ACM for reconsideration, entertained argu­ 4992, McNeely, 5 CMR 427. In CM ment,; anew, but reaffirmed its origi­ 353051, Downs, 5 CMR 295, an Army nal decision; CM 362283, Richmond, board reconsidered where information 11 Cl\IR 331, where, for the first time, had been received, subsequent to its it was reasoned that jurisdiction re­ original decision, that accused lackt"d mained in the board because no effort requisite mental capacity. Other ha.d been made to serve the accused cases followed: CM 354019, Ro11illa1·d, with a copy of the original decision 6 CMR 341, where the board cor­ of the board; CM 359523, Palesky, 11 rected an oversight regarding the law CMR 563, where the decision was officer's instructional defect; Cl\1 characterized as being "on Further 351164, Lyles, 6 CMR 440, where the Consideration", probably because the board acted on its own motion to case like Tankersley had moved into reconsider; ACl\1-S 3330, Boyd, 7 CMA's orbit and then had been re­ CMR 710, where almost three months turned to TJAG by CMA on motion elapsed between the original decision of appellate defense counsel; NCM and the board's reconsideration; ACM 230, Rosa, 11 CMR 635, the first re~ S-3127 Tribble, 7 CMR 739, where the ported Navy board case on recon­ board acted to reconsider a defense sideration [23 July 1953]; CM 364545, motion "timely filed", six months Ryder, 12 Cl\IR 397; ACM 6728, elapsing between the original decision Hyde, 12 C\IR 710, where it was dis­ and the ordering that that decision covN·ed that the accused's mental con­ be reconsidered; CM 358530, Keeton, dition prevented delivery of the origi­ 8 CMR 246, where the board vacated nal decision to him after TJAG had its earlier decision in order to permit transmitted the decision to the field; accuf'ed to be represented by a special C:\I 362352, Williams, 13 CMR 158, counsel; Cl\1 361098, Neuner, 9 CMR where CMA had not only received a -!79, the first recorded "Decision Upon petition for review from the accused Petition for Reconsideration" (em­ but had gra 11ted it, and thereafter phasis added) where the motion was at the request of the defense counsel denied on the ground that no reason­ the case was remanded to the board able basis for reconsideration had for ncon~ideration; CM 366023, Wil­ been . e~tablished; CM 357571, Tank­ lia 11111, 13 CMR 198, where the record ersley, 10 CMR 194, a fascinating was still in TJ A G's hands when re­ problem in pleading where the board consideration was requested; CM discovered it had been divested of 360857, Smith, 13 Cl\IR 307, where the juri:odiction under the Jackson rule case was returned from Cl\IA at de­ The Judge Advocate Journal 13

fense request for reconsideration; ful tools of the craft, and no practical NCM 257, Turpin, 13 CMR 537; CM problem seems to have been insur­ 355051, Kunak, 14 CMR 313, where mountable. appellate defense counsel had moved The calm of the scene was not dis­ for a dismissal before Cl\IA, but that turbed by CM 364135, Korems, de­ motion was denied and the case re­ cided 18 March 195.t, and reported in turned to TJAG for reference to a 15 CMR 460, when the board of re­ board; CM 366858, Rice, 14 CMR 379, virw determined that it was without where the board had granted defense jurisdiction to act in an Article 69 appellate counsel's petition for recon­ case which had been examined and sideration a day before the accused passed to file in JAGO over six months filed a petition with CMA for review, before TJAG withdrew the case from the board holding that it had retained the files and sent it to the board for the jurisdiction to act, although TJAG review. The board noted that the had transmitted the original decision appellate review provided by the Code of the board before appellate defense had been fully, finally and effectively counsel had even filed his motion with completed and jurisdiction to rehear the board; CM 368517, Collins, 1mre­ the case on its merits was lost. Al­ po1·ted, 15 December 1953, where the though the opinion stated that it was board published a formal "Order unnecessary to determine at what mo­ Upon Motion for Reconsideration", ment the appellate process terminated, granting the motion; CM 365587, Joy­ it did say that "the notification to the . al, 14 CMR 436, returned from CMA convening authority, through his to the board for further considera­ staff judge advocate, of legal suffici­ tion upon the motion of the appellate ency was analogous to the issuance defense counsel; ACM 7869, llfo.rsha ll, of a mandate which an appellate court 14 CMR 605; ACM 8307, Wardell, 15 will not ordinarily recall and it would CMR 773; NCM ------·• Keller, de­ seem that the execution of the sen­ cided 22 November 1954, where the tence, coupled with receipt of notice board entertained a motion for con­ of legal sufficiency, was the equivalent sideration, predicated upon insanity of the carrying into execution of a of the accused, submitted almost 10 civil criminal decree which, of itself, months after the board's first deci­ .bars rehearing". sion; NCM ______,Evans, decided 26 The same board of review, however, November 1954, also involving a mo­ had occasion to act on a petition for tion for reconsideration resting upon reconsideration soon afterwards, in accused's insanity, the board declar­ the case of CM 371409, Sparks, de­ ing it still had jurisdiction even cided 8 June 1954. In this case TJAG though accused had earlier receipted had transmitted the original board for his copy of the board's initial de­ decision to the accused who had ac­ c1s10n. Certainly most of the cases, knowledged its receipt. Six days later however, seem to develop logically the the appellate defense counsel peti­ basic doctrines set down by the Court tioned the board for reconsideration. of Military Appeals. These special Holding that it had become powerless pleadings had obviously become use­ to entertain the petition, the board The Judge Advocate Journal reasoned that jurisdiction had passed board made it clear in its decision at least when the original decision that TJAG had forwarded the board's had been promulgated by appropriate original decision to the field and that orders in the field. The opinion in­ the accused had duly received. a copy dicated that jurisdiction might even of that decision. Jurisdiction was have passed when TJAG dispatched still vested in the board, however, the decision to the field. If this were "until the expiration of the thirty day not so, said the board, a longer ap­ period after receipt of notice of the peal period would be permitted the decision of the board for appeal to the accused than the Code had estab­ Court of Military Appea1s, or until lished, for the board decision would such appeal has been filed with that not be known to be final, within the court". meaning of the Sell ca3e, until the On 6 August 1954, the board that expiration of 30 days from receipt of acted in the Sparks case issued its the decision by the accused. The Rule decision on petition for reconsidera­ of the Weeden case was explained as tion in CM 373211, Smith, holding being consistent with this doctrine, for that the board loses jurisdiction to act it will be remembered that in the "when the decision is certified or when Weeden case the motion for recon­ it is sent down pursuant to paragraph sideration was filed at the same time 100 of the Manual'', thus being con­ TJAG forwarded the board's decision sistent with Sparks and contra to to the accused. Apparently the board Estep. (Emphasis added). This in the Sparks case felt that it was Smith decision was certified by TJAG merely dictum in the Weeden case to CMA on 20 August 1954. when the court announced that the Two final decisions are available, accused could either petition the court CM 371588, Estep, decided 16 Septem­ or move the board to reconsider "af­ ter receiving notice of a decision. of ber 1954, and CM 372876, Fennell, 21 September 1954, each consistent with the board of review." the earlier Estep decision. Neither It was now obvious that at least refers to the Sparks and Smith cases. this one board of review had dis­ Just as this paper was submitted covered what was thought to be a for publication, the Court of Military congenital defect in the two-year old Appeals handed down its decision in doctrine. But just one month later a the Smith and Sparks cases (United different board of review acted in the States v. Smith, (No. 5516), USCMA case of CM 371588, Estep, decided 8 ------·---- , ______CMR ______, decided July· 1954. Displaying the freedom 4 February 1955). By these decisions, permitted the boards because of the CMA has finally cleared the air of lack of clear guidance in the tech­ much of the uncertainty and estab­ niques necessary to the proper appli­ lished guidelines for a full use of this cation of the reconsideration doctrine, new pleading weapon. In Sparks, the board issued a decision entitled Judge Brosman spoke for a unani­ "Decision on Motion to Rescind Order mous court and ruled that "in the for Reconsideration and to Dismiss absence of change in the Uniform Motion for Reconsideration". This Rules governing proceedings before The Judge Advocate Journal 15

boards of review, a motion for recon­ right to seek reconsideration if there sideration may be submitted at any was substance to the contention re­ time before a petition, or a certificate specting unconscionable delays. for review, has been filed here The Smith opinion added nothing to [CMA], or until the 30-day statutory the Sparks rules, and without discus­ period provided for the filing of such sion held that a petition for recon­ papers has expired." Jurisdiction in sideration was timely even though the this matter does not vest in the of­ officer exercising general court-mar­ ficer exercising general court-martial tial jurisdiction had received the de­ jurisdiction once the case is pending cision of the board of review before before or has been acted upon by a the appellate defense counsel had filed board of review, even where the deci­ his motion for reconsideration before sion of the board has been transmit­ the board. ted to and received by him. As for the possibility that infinite delays What is the significance of t.his de­ might be incurred in the handling of velopment-a rather outstanding one these petitions for reconsideration, -of judge-made law? It is obvious that the drafters of the Code a·nd the the Court noted that the signing of a Manual had no inkling of the appear­ paper by a counsel is a certificate that it is filed in good faith and not ance of reconsideration on the mili­ tary justice scene. To have such a for the purpose of unnecessary delay, procedure, however, is quite compat­ and that "there is no right in an ible with the basic philosophy liken­ accused to petition without limit". A ing boards of review to civilian appel­ .second motion for reconsideration by late courts. New fields are thus a board will have no effect in expand­ opened to counsel to submit special ing the period within which an ac­ pleadings, motions for reconsidera­ cused may petition the Court for re­ tions to the boards and motions to view, nor will it extend the jurisdic­ CMA to return a case to a board for tion of the board-unless the motion reconsideration. is gr&nted prior to the filing of a pe­ tition or a certificate in CMA. How­ Where a board refuses to assert ever, the filing of the first motion to jurisdiction for reconsideration what reconsider does delay the inception of may the accused do? Certainly he the 30-day period for certification, and may petition CMA. May he move an Air Force rule to the effect that CMA to vest jurisdiction in the board the petition to CMA must neverthe­ in advance of a grant of a petition less be made within 30 days from the by that court? No case has so held, time the accused was notified of the but it would seem that if the board original decision of the board of re­ has denied the accused's motion for view was incorrect. Finally, Judge reconsideration the accused should Brosman hinted broadly that The . then be empowered to move CMA to Judge Advocates General should pro­ act on the case. And it would be mulgate, under Article 66/, Uniform simple enough for CMA to order the Code of Military Justice, uniform case returned to a board for recon­ rules which will serve to narrow the sideration. 16 The Judge Advocate Journal

Does the thirty day period abate might form the basis for the motion. when the accused moves the board for And of particular importance where reconsideration? In justice it would jurisdiction remains with the board, a seem that it should, so long as the finding of fact might be reconsidered. motion is in good faith and not merely In short, the field seems to be almost for the purpose of delaying the prop­ without limitation other than good er disposition of the case. Probably faith and an absence of an appearance the period abates until the accused that the moticn is purely dilatory. has in due course received word from The boards of review have gradu­ the board of its denial of the motion. ally adopted the procedure of issuing Since Government Appellate Coun­ formal orders or decisions in these sel may petition the board for recon­ cases. This salutary practice may sideration, may that counsel also pe­ well be followed and expanded. For­ tition CMA to return a case to a mality has been emphasized in the board for reconsideration? It has not Code procedures since their innova­ been done, and is not likely, but cer­ tion. Counsel should prepare the mo­ tainly no language in any of the opin­ tion, append a supporting brief, and ions expressed to date would preclude furnish the board with a form of a it. This would be one method where­ decision consistent therewith and pre­ by TJAG could refer the case to a pared for signature in the event the different board, however, and might board chooses to grant the motion. be condemned on the theory that Opposing counsel should be served TJAG should not be permitted to with copies in order that he may make "shop around" among his boards of a timely appearance to contest the review until he obtains a decision ac­ matter if he desires. Boards should ceptable to him. hold hearings on the motions when it is determined they may be necessary. It would >"eem that the motion to Except in the most patent cases it reconsider may be made to the board seems like good practice for the board on any of several grounds. Newly to hand down a decision on the motion discovered evidence or a fraud on the separate from its decision on recon­ court would be a basis for a new trial sideration after the motion has been petition, not a reconsideration, which granted. properly should be addressed to the board if jurisdiction still rests in that Certainly this formality would not forum. Insanity is another matter be required in all cases, and shortcuts which may always be considered by may be found as circumstances dic­ the board so long a3 it retains juris­ tate. The careful pleader, however, diction. Even where the accused has will want to formalize the rulings receipted for his copy of the board's where it can be done, and he should initial decision, he may still petition not overlook the opportunity to do so for reconsideration even under the when time and the importance of the Sparks an1l Smith doctrine if his pe­ matter warrant. tition rests upon the imanity of the Possibly it might be thought that accused at that time. Quite properly all of this reconsideration business too, a reconsideration of a rule of law will place an impossible burden upon The Judge Advocate Journal 17

the boards. This should not.be so, for could the thirty day period be re­ there is no reason that the boards duced, and almost any rules estab­ cannot place the burden upon counsel, lished by these appellate bodies would where it rightly belongs. There must, permit the accused at least some of course, be docket entries in the abatement of the time. An accused board's records, and where hearings could hardly be heard to complain are required there will be some time about the establishment of any such devoted to that that the boards might rules so long as they were fair and more profitably be spending in de­ reasonable. ciding other cases. But the order in This much is certain: a new and form for signature should be prepared a valuable tool has developed, but by each coum;eJ. The counsel's briefs the craftsmen using it require some should set forth the issues with clar­ further detailed guidance in its ap­ ity amd hearings should be rather in­ plication: frequent. It is hoped that before long the Even if there is some extra burden rules of procedure for proceedings in on the boards, however, it is worth it. and before boards of review, as well Far better to have an issue decided as CMA's Rules of Practice and Pro­ in the boards of review, whose num­ cedure can be revised to take recon­ bers may be increased as need~d, than sideration into account so that plead­ to flood CMA, an overburdened and ing will retain. its usefulness and yet lonely creature, with i.ssues that could will not be perverted to the end that easily and appropriately be disposed the burdensome appellate delays be­ of in the lower forum. As a rule of come even heavier. thumb it can be stated that it is to In this brief glimpse we have been the interests of good military justice able to trace the development of a administration in the various services very small segment of our modern that decisions be rendered on the military Jaw, more like a microscopic lowest possible level. It is only log­ botanical study than a wide-screen ical that wherever it can be legally legal travelogue. And yet it is a done, the matter should be returned clear example of the means whereby to the board for necessary action. - . the twist of the judicial twig con­ There remains the question of time tributes to the overall shape of the -the effect of the various motions juridical tree. CMA could, of course, upon the thirty days permitted the have settled this matter completely by accused to petition the Court of Mili­ fiat, so to speak. Instead, it set out, tary Appeals. The Code does not preliminarily, the basic rule and then elaborate on this point, as already permitted the operational branches to noted. However, it would seem that feel their way slowly and tentatively. the Rules of Practice and Procedure CMA merely kept the development un­ before both CMA and the Boards der its casual and sometimes belated could provide for the effect these mo­ but effective control. This seems typ­ tions have upon the time. In no way ical of this Court's approach. 18 The Judge Advocate Journal REVIE\VABILIT\' OF NATIONAL GUARD DISCHARGE The Court of Appeals of the State Hausauer as "Chief of Staff" "By of New York recently ·held the Courts Command of the Governor". The of that state without jurisdiction to Court, affirming the dismissal of the review the form of discharge from action to compel review, held that military service in the New York Na­ Federal Statutes were inapplicable to tional Guard. In Karl F. Hausauer, the discharge of enlisted personnel C. G., NYNG vs. Gerald E. Nistal, of the National Guard. The Governor, No. 139, it appears that Nistal, prior who has the discretionary power to to enlistment in the NYANG in 1946, issue some kind of discharge, through had served three enlistments in the his Chief of Staff, the Commanding U. S. Army Air Force and one en­ General of the New York National listment in the U. S. Naval Reserve Guard, had ordered the discharge from 1937 to 1945 during which time without honor, and the civil courts he had been court-martialed twice cannot review that action,1 neither but, nevertheless honorably dis­ can civil courts go back of the docu­ charged after each enlistment. With ment to determine whether the Gov­ full disclosure to the NYANG enlist­ ernor ill fact commanded the action.2 ment officers, and on advice of those The Court recognized the possibility officers that the question related to of prejudice to Nistal by the type of civilian offenses, on his application for discharge given him, but distinguished enlistment, Nistal gave a negative an­ a dishonorable discharge as a punish­ swer to the question "Have you ever ment for wrong doing from a dis­ been convicted of any offense?" In charge without honor as merely a 1950, Nistal requested an honorable discharge without commendation and discharge to satisfy the requirements found no applicability of the Uniform of his civilian employment, and after Code of Military Justices Statute of appearing before a Board of Officel'IS Limitations on fraudulent enlistment he was discharged "without honor" to a determination by the Governor for fraudulent enlistment. The dis­ on an application for voluntary dis­ charge certificate was signed by charge.

1 See also Patterson v. Lamb, 329 U. S. 539, re reviewability of discharges from the U. S. Armed Forces. 2 See Haimson, 5 USCMA 208 and Marsh, 3 USCMA 48, re impropriety of going behind the "command line".

Your professional success, important cases, new appointments, political successes, office remova1s, and new partnerships are all matters of interest to the other members of the Association who want to know "What The Members Are Doing." Use the Journal to make your announcements and disseminate news concerning yourself. Send to the Editor any such information that you wish to have published. ~llLITARY JUSTICE IN 'l11IE IlOK All~IY By John Jay Douglass* In July 1949, as United States modern Army niuch along the lines of troops were evacuated from South the United States Army and naturally Korea, the United States Military faces many of the same problems Advisory Group to the Republic of which face any modern army. The Korea was established. This group, growth of this Army and its efficiency, known commonly as KMAG, and as proved in combat, has been in large called "Kmagee" by the natives, was part due to the efforts of its KMAG created to bring into being an efficient advisors. These advisors have served and modern army for the defense of directly with their "counterparts" not one of the world's newest republics. only in training but in the day to day The advisory group, which consisted operation and administration of a of less than 500 officers and men, in­ modern Army. Advisors serve with cluded from the outset an advisor to all major staff sections in the Republic The Judge Advocate General of the of Korea Army Headquarters, the ROK Army in recognition of the need Korean Pentagon, and at all major for advice and assistance in establish­ command levels. The KMAG advisors ing a system of military justice for are just what the name implies. They this embryo Army which had already do not command but they offer sug­ been formed and was functioning as gestions and advice based upon the the Korean Constabulary. latest and most modern military The only United States military thinking. personnel in Korea on the 25th of Background of Korean Law June 1950 were those assigned to KMAG. Since the outbreak of that To fully comprehend and under­ "war" or "police action", the size of stand any system of military juris­ KMAG has increased but not with the prudence, it is necessary to know the rapidity with which the Army of something of the history and juris­ this small nation has increased, for it prudence of the people using the sys­ has become one of the four largest tem of military law under consider­ Armies in the democratic orbit. The ation. Though as Winthrop says, in Korean Army has been created as a his treatise on Military Law,1 "Mili­

*Major Douglass, a regular officer of the Army Judge Advocate General's Corps, is a member of the bars of the states of Nebraska and Michigan and the Republic of Korea. The author acknowledges with thanks the technical as­ sistance of Brig. Gen. S. G. Sohn, TJAG, ROK Army, and Col. Kae Chol Soon, Chief, Legal Affairs, OJAG, ROK Army, in the preparation of this paper. The opinions expressed are those of the author. 1 Winthrop, Military Law and Precedents (2d Ed., 1920 reprint) 17. 19 20 The Judge Advocate Journal

tary law proper is that branch of pub­ Russo-Japanese war, became the mas­ lic law which is enacted or ordained ters of Korea and attempted to inte­ for the government exclusively of the grate Korea into the Japanese Em­ military state, and is operative pire. This action, almost without equally in peace and war." It has a precedent in the history of the world, background in the civil law of the proved unsuccessful, for the Koreans state and the principles of law and resented losing their national identity. government, as practiced by the na­ Realizing this, the Japanese then went tion, are carried over into the military to the opposite extreme and treated law. Thus our Military Law "has ·the Koreans as a subjugated people derived from the Common Law certain who had no rights whatever which of the principles and doctrines illus­ any Japanese were obliged or even ex­ trated in its code" 2 and we shall see pected to respect. that this is also the case with the mili­ Thus from early in the century until tary law of the Republic of Korea. 1945 when this ancient land was occu­ But on the contrary the root of the pied by American forces following the public law of Korea is not derived victory over the Japanese, the Ko­ from the Common Law but has an en­ reans had been governed by a system tirely different root and has provided of Japanese law. When the Japanese the peoples who make up its great began their program of Westerniza­ Army with a military code from one tion under the Emporer Meiji in the system of jurisprudence and a civil mid-nineteenth century, they studied code from an entirely different sys­ the legal systems of various nations tem of jurisprudence. and finally adopted a modification of The Koreans are a Mongoloid peo­ the legal code then in effect in the ple whose culture has its origin in German Empire and the French Re­ and has been influenced mostly by the public as the basis of Japanese law. Chinese though they are a distinct This German and French Code, like people whose national integrity and all Continental European Codes, was history go back for more than 4,000 developed from the Roman law and years. The peninsula had been alter­ contained many concepts which are nately invaded by the Chinese and alien to the Anglo-Saxon law upon Japanese since the time of Christ but which the jurisprudence of the United for several hundred years prior to States is based. Thus, the Japanese 1900, Korea had isolated itself from modification of the legal system then the rest of the world and for this rea­ prevailing in Europe as interpreted son had come to be known as the and enforced by a Master upon a sub­ Hermit Kingdom. This long period of jugated people was supe1·imposed isolation served to create a culture upon the ancient Korean customs. of its own and it had been governed In 1945, the United States set up a by a system of law based totally upon l\Iilitary Government in South Korea either custom or royal decree. It was and the first American social and legal shortly after the turn of this century concepts were injected into the Ko­ that the Japanese, as a result of the rean law and upon the Korean people.

2 Id. at 41. The Judge Advocate Journal 21

During the period of the American military law currently in use in the occupation this Military Government Army of the Republic of Korea ante­ promulgated ordinances for the gov­ dates the Constitution but by only 12 ernment of the people of this ancient days; the Constitution was adopted on land and though an attempt was made July 17, 1948. On July 5, 1948, the to promulgate laws adapted to the Major General William F. Dean, who people, they were conceived in the was later to distinguish himself in light of American experience both the early days of the Korean war, civilian and military. This, then, was then Military Governor of Korea, di­ the third great influence upon the le­ rected that the present Articles for gal system of Korea. the Government of the Korean Con­ In 1948, the Republic of Korea was stabulary should become effective on established and a Constitution was and after 4 August 1948. Even a cur­ adopted based upon the ideas of a sory examination of the English people who were resentful of their translation of the Articles for the subjugation by Japanese masters but Government of the Korean Constabu­ whose lawyers were trained in Jap­ lary reveals that they are the United anese law schools and familiar with States Articles of War, 1920 with Japanese concepts of law. The occu­ only such minor changes of wording pation by forces of the United States as was absolutely necessary to make had not been of long enough duration them applicable to the Korean mili­ for concepts to have changed but tary force. there ·had been an influence. In fact, These Articles were simply the Ar­ this new Constitution decreed that the ticles of War with a table of maxi­ ordinances of the Military Govern~ mum punishments attached; but ment would remain in effect to the ex­ \vhereas the procedures and explana­ tent that they did not conflict with tions of our own code of military law this new Constitution.3 Since that have always been contained in the time, the law-making power has been Manual for Courts-Martial of various vested in the National Assembly; years, there was no corresponding ex­ though much of the substantive law planation promulgated for the mili­ as well as procedural law has been tary law of the Army of this newest promulgated by Presidential Emer­ Republic. Consequently to fill this gency Decrees which were authorized vacuum those utilizing these articles by virtue of powers of the executive proceeded to use the modes and pro­ granted by the Constitution, particu­ cedures of their own civil law which, larly during the period of national as we have seen above, were in gen­ emergency. eral the Civil Law of Continental Europe to which they were accus­ Military Law of Korea tomed and with which they were Historically, our own military law familiar. The Articles, which in the is considerably older than our Con­ U. S. Army depended upon the pro­ stitution 4 and likewise the code of cedure outlined in the Manual for

3 ROK Const., Art. 100. 4 Winthrop, op. cit. s11pra note 1, at 15. · 22 The Judge Advocate Journal

Courts-Martial for the administration Korea is there made any reference to of military justice according to Anglo­ military laws or regulations. The American concepts of due process (a failure of the Korean Constitution to concept unknown in Korea), were di­ contain a provision similar to that in vorced from their procedural counter­ the Constitution of the United States, part and administered under a proce­ which provides that the Congress dure so alien to the substantive law shall "make rules for the government as to leave much doubt as to the abil­ and regulation of the land and naval ity of the two systems to function as forces",5 has created further prob­ a harmonious whole. lems as we shall see. The Korean Before the system could be cor­ Constitution merely states that, "The rected or before the differences could mission of the national military forces be compromised, the nation and its shall be to perform the sacred duty Army were hurled into a war in which of protecting the national territory",6 the armed forces were multiplied and in Article 61, "The President shall many times and the whole nation was be the commander-in-chief of the Na­ engrossed with the problem of sur­ tional Military force. The organiza­ vival. The result has been, as one tion of the National Military force unknown writer of a paper found in shall be determined by law." In all the files of the Senior Advisor to the likelihood the use of the Articles pre­ Judge Advocate General of the Re­ scribed for use of the Constabulary by public of Korea stated, "a chaotic General Dean has continued for lack crazy-quilt of ancient Korean cus­ of time to create a more completely toms, American Articles of War, Civil Korean system of military law. When Law procedures, and Presidential de­ questioned as to how it is possible to crees and emergency laws and proce­ continue to apply the Articles for the dures which is inefficient and ill Government of the Korean Constabu­ adapted to the realities which do now lary to the Korean Army, the attitude and in the future will exist in Korea, taken by Korean lawyers is that, al­ and which is confusing to the Koreans though no ordinance or decree or stat­ themselves and practically unintelli­ ute specifically sets this out, the Con­ gible to an American". stabulary was created with the aim of One might well question how it is establishing a Republic of Korea that the Articles for the Government Army and the former is identified of the Korean Constabulary remain with the latter. This theory combined the military code of law in the Army with Article 100 of the Constitution of the Republic of Korea. As noted permits the present system to con­ heretofore, the Constitution provided tinue in effect. for a continuation of the ordinances The National Military Force was which were not in conflict with the established by act of the National As­ Constitution. And there is no conflict, sembly.7 This statute established the for nowhere in the Constitution of framework of a modern Army, includ­

5 U. S. Const., Art. I, Sec. 8. 6 ROK Const., Art. 6. 7 ROK, Act of 30 November 1948, Law No. 9. The Judge Advocate Journal 23 ing a Judge Advocate General's ticing lawyers in all of Korea, 165 are Corps.s Article 20 of the Act fur­ in the Army. This number still does ther provided that: not fill the needs of an Army of this "Military personnel on the active size and many defendants are tried by list or called to duty, or a civilian at­ a general court without the benefit of tached to the Military Force shall be trained legal defense counsel. subject to military law. A trial for The Judge Advocate General of the military personnel or civilian attached to Military Forces shall be adjudged Republic of Korea Army, Brigadier by a Courts-Martial. Kinds of of­ General S. G. Sohn, has much the fenses or crimes and proceedings same function as The Judge Advocate thereof shall be determined by law." General of the United States Army, 1t was not until the Act of April Navy, or Air Force. He is responsible 1953 9 that a standard for the appoint­ for the conduct of military justice ad­ ment of Judge Advocates was estab­ ministration in the Army, serving as lished by law. To be so appointed, a legal counsel to the Chief of Staff, person is required to have the quali­ providing legal assistance to person­ fications of a Judge, Prosecutor, or nel of the Korean Army, and assisting Attorney at Law, or he may be ap­ in the settlement of claims. Unlike pointed as a Probationary Judge Ad­ the claims service in the United vocate, as one who, after having prac­ States Military Forces, however, the ticed "The subjects prescribed by the Korean government pays no claims Presidential Ordinance for not less and the activities of the Judge Advo­ than one year, has passed the regular cate General's Corps in this regard is examination." The qualifications for to make a determination of liability Judge, Prosecutor, or Attorney are set for damages caused by Korean service forth in the Lawyer's Act.IO As a personnel and ascertain that these sidelight, it is interesting to note that claims are satisfied by the individuals a lawyer cannot "indulge in commerce responsible. -0r any other business which has profit The · main responsibility of The as its goal, or cannot be an employee Judge Advocate General's Corps is, -0f the operation above, managing of course, the administration of mili­ partner, director or employee of a tary justice. The Korean system pro­ juridical person which has profit mak­ vides for trials by general court-mar­ ing as its object.11 During the sum­ tial, special court-martial and sum­ mer of 1953 it was necessary to draft. mary court-martial. The similarity lawyers to fill the needs of this rapidly of the jurisdiction as to persons and expanding Army much as doctors offenses of the provisions of the Arti­ were drafted into the United States cles for the Government of the Korean military forces. The drain on the le­ Constabulary to the U. S. system gal talent of Korea can be appreciated makes any recapitulation unnecessary. when one learns that out of 700 prac­ In each type of court there must be

s Id., Art. 12. 9 ROK, Law No. 243. 10 ROK, Law No. 63. 11 Id., Art. 18. 24. The Judge Advocate Journal action by the convening authority Court expressed the reason in Ex prior to execution of the sentence. Parte Milligan when it said "the Though special ·courts-martial and power of Congress, in the government summary courts-martial are author­ of the land and naval forces and of the ized, they are not used in the ROK militia, is not at all affected by the Army, this being the outstanding di­ fifth or any other amendment." 1;; As vergence from the United States sys­ pointed· out heretofore, the Constitu­ tem of military justice. Under the tion of Korea does not provide for any provisions of Article 62,12 the limit of separate government of the military punishment which may be imposed by forces of the Republic of Korea. This a special court-martial is six months failure provided an ample ground for confinement or forfeitures of two attack by defense counsels upon every thirds pay per month for six months. court-martial for ·the failure to pro­ Likewis~ Article 61 limits the punish­ vide a judge before which the citizen­ ment which may be imposed by a sum­ soldiers might be tried. The Korean mary courts-martial and would be lit­ government, unable to rely on the law tle used in the Korean Army for the of war in the face of this positive realities of Korean life precludes, as declaration of the Constitution, there­ we shall see, the effective use of fines upon hit upon another solution. They and forfeitures as punishments for proceeded to make members of the minor offenses. There is an even more Judge Advocate General's Corps elementary reason, however, for the judges under the law of Korea failure to use special and summary through the Judge Advocate Appoint­ courts-martial in the Korean system ment Law, supra. Thus, there is com­ of military justice which is based upon pliance with the constitutional provi­ the provision of Article 22 of the Con­ sions whenever a member of the Judge stitution of the Republic of Korea Advocate General's Corps is a member which states: of the court. "All citizens shall have the right to But here practical considerations be tried in accordance with the law by enter. Judge Advocates are scarce judges whose status has been deter­ because lawyers are scarce in Korea, mined by law." and in consequence there are insuf­ This provision of the Korean Consti­ ficient "judges" available to assign to tution may be likened to that right of special courts-martial and summary trial by jury in the United States courts-martial. Thus, for very prac­ Constitution: "The trial of all crimes, tical reasons this departure from the except in Cases by Impeachment, shall U. S. scheme has been made neces­ be by Jury." i:1 This right has never sary. "This honest zeal for Constitu­ been considered to be extended to tional government has made its con­ those accused tried by courts-mar­ tribution" as Lieutenant Colonel Wil­ tial.14 The United States Supreme liam E. Parker, JAGC, stated in an

12 Articles for the Government of the Korean Constabulary. 13 U. S. Const., Art. III, Sec. 2. 14 Ex Parte Quirin, 317 US 1, 63 Sup. Ct. 1, 87 L. Ed. 3 (1942). i~ 4 Wall 2, 138, 18 L. Ed. 281 (1866). The Judge Advocate Journal 25 unpublished paper dated 17 July 1953. ing or vacate any sentence in whole It has been suggested by Colonel Mar­ or in part. Thus, as can be seen, the vin W. Ludington, JAGC, after ·a boards of review of the Korean Army study of this problem that it might be have the same type of authority as possible to have "judges" ride circuit their U. S. Army counterparts had as members of special courts-martial under the 1920 Articles of War but or as summary courts-martial. which have now been amended in the Article 99 16 directs The Judge Ad­ Uniform Code of Military Justice to vocate General to establish in his of­ give the power formerly lodged in the fice a Board of Review consisting of Secretary of War (Director, Depart­ three officers of The Judge Advocate ment of Internal Security) to the General's Department. "Before any boards themselves. i·ecord of trial in which there has been The Articles set forth substantive adjudged a sentence requiring ap­ crimes and the punishments are estab­ proval or confirmation by the Chief lished by the Table of Maximum Pun­ Executive of Government under the ishments attached to the Articles. In provisions of Articles 94 and 96 17 is addition, certain crimes which result submitted to the Chief Executive of from the present emergency situation Government, such record shall be ex­ are defined and are tried on the basis amined by the board of review. The of the Presidential Decree of 25 June board shall submit its opinion in writ­ 1950.18 This decree was published ing, to The Judge Advocate General, and promulgated to meet the require­ who shall, except as herein otherwise ments of the emergency. As stated provided, transmit the record and the in an unpublished paper which was be­ boards opinion with his recommenda­ lieved to have been written in mid­ tion directly to the Director of De­ 1951, found in the files of the Senior partment of Internal Security for the Advisor to the ROK Army Judge Ad­ action of the Chief Executive of the vocate General, "This decree was Government." Other records of trial made necessary because the Articles are examined in the Office of The were not intelligible to the Koreans, Judge Advocate General and if found or were not adaptable to the condi­ legally insufficient to support the find­ tions of Civil War in Korea." This ings and sentence are examined by a decree as amended provides in Article board of review. If the board also 13 that "in case of conflict arising finds the findings or sentence legally between the crime as provided in this insufficient, it shall submit its opinion Law and that in any Criminal Law to The Judge Advocate General who other than this Law, the Criminal forwards his recommendation to the Procedures as provided in this Law Director, Department of Internal Se­ shall prevail." This decree set forth curity, who may approve, disapprove, that whoever shall commit certain or vacate in whole or in part any find­ crimes "taking advantage of the

16 Articles for the Government of the Korean Constabulary. 11 Id. 18 Presidential Emergency Decree No. 1, amended by ROK Act of 30 January 1951, Law No. 175. 26 The Judge Advocate Journal

emergency situation" shall suffer with those extra emoluments, the death, imprisonment for life or im­ Budget Review Group of the Com­ prisonment for not less than four bihed Economic Board, United Nations years. These crimes include murder, Command determined that the basic arson, rape, destruction of facilities, pay scale should need to be increased plundering, or freeing prisoners in 29 times to meet the minimum cost of custody of jail or house of detention living. The absurdity of a two-thirds without authorization. This latter forfeiture of the sixteen cents a month provision makes one wonder about the paid a private in the ROK Army is applicability of this decree to the re­ readily apparent and the need for lease of North Korean non-repatriates other means or methods of effective during the summer of 1953 from the punishment to maintain military dis­ prisoner-of-war compounds. cipline is obvious. Unlike the U. S. system of military Disciplinary Committees justice in which the legislative enact­ ment provides for maximum punish­ Because of the inadequacies of the ments by administrative action,19 the Articles, the shortage of trained legal Military Government Ordinance pro­ personnel, and the defects of the pun­ mulgating the Articles for the Gov­ ishment system imposed upon the ernment of the Korean Constabulary ROK Army, other means have been also provided a Table of Maximum found to accomplish the ends of dis­ Punishments. Like so much of the cipline in this young Army. Disci­ rest of the imposed system of military pline is particularly important due to justice, the punishment system can the lack of a military tradition and not in all cases be adapted to the the exigencies of a war for survival realities of Korean life. Of particular as a nation. There has developed a importance in the American system of rather. extraordinary system of pun­ military justice is the use of forfei­ ishment through disciplinary commit­ tures as a mode of punishment such as tees which is simple and much less is provided in the Table of Maximum formal than trial by court-martial. Punishments which accompany the Article 102 ("Disciplinary Power of Articles. The pay scale, however, of Commanding Officers") of the Articles the Republic of Korea Army precludes for the Government of the Korean the effective use of forfeitures. For Constabulary is relied upon by The example, until a recent pay raise went Judge Advocate General of the Korean into effect, the basic pay of private Army as the legal basis for these dis­ was 30 hwan a month or roughly six­ ciplinary committees. Article 102 is teen cents. On the other end of the an approximate translation of the scale, that of a full general in the familiar "104th Article of War" fa­ ROK Army was 900 hwan or $5.00 miliar to World War II American sol­ per month. It should be noted that diers as company punishment which all grades have a wartime allowance was intended as a method of minor of 200% of base pay and in addition punishment without leaving a blemish are given a free grain issue. Even on the record of the soldier. The Ko­

19 Uniform Code of Military Justice, Art. 56. The Judge Advocate Journal 27

rean Article 102 differs from the olg recognized with the one week limit to "104th" only in that the Korean ver­ confinement in Article 102 of the Con­ sion provides for confinement "at stabulary Articles. guard house for not exceeding one Demotions and dishonorable dis­ week." By what Lieutenant Colonel charges as disciplinary punishment Parker terms legal legerdemain, Ar­ are not regarded as conflicting with ticle 102 is reconciled with a Presi­ the law. They are regarded as were dential Decree to create the authority administrative dispositions, functions for the Disciplinary Committees. The of ordinary administration, rather Presidential Decree provides in part: than punitive actions. This function of the disciplinary committees comes "Cases of misconduct by Army or Navy personnel or civilians attached info perspective for lawyers familiar to military units, such as violation of with the American military adminis­ military discipline, neglect of duty tration when compared with boards of and corruption of military morals officers used in the United States shall be punishment according there­ to, and that disciplinary action there­ Army for demotion and elimination of under shall be divided into 'Severe officers and the various administrative Disciplinary Action' and 'Minor Dis­ board proceedings for separation and ciplinary Action! " 20 demotion of enlisted men. The pro­ "Severe Disciplinary Action" may cedure developed by the ROK Army include dismissal for officers, dishon­ which is included in the military jus­ orable discharge for enlisted men, de­ tice scheme quite conceivably may motion (which may be inferred also have contdved a saving in "paper for lack of education unsuiting an in­ work" while preserving most of the dividual for his position), suspension rights of the individuals. from "military position" (including In the operation of this whole dis­ the wearing of the uniform), suspen­ ciplinary system, which may be sion of officers from duty up to three thought to parallel the system of trial months at decreased salary, and de­ by court-martial, commanders are crease of pay up to two-thirds from aided by disciplinary committees,

20 Presidential Decree No. 134, 25 June 1949. 28 The Judge Adv0cate Journal tees are also referred to as trials, and provost marshals, the same possibility a committee has authority similar to is present as in the American Army that of a court-martial to summon and that serious offenses will be mistaken examine witnesses and evidence, and for minor and go without substantial provisions concerning courts-martial punishment. Although in such cases apply muta tis mutandis to matters for the non-judicial disciplinary,, punish­ which no provision is made in the de­ ment theoretically would not bar sub­ cree. Nevertheless, Korean lawyers sequent trial by court-martial. adhere to the academic position that committee proceedings are de jure not Trial by Court-Martial trials but mere inquiries. Formal re­ Americans in Korea have frequently ports are made to the appointing au• expressed surprise that the ROK thority, who actually imposes the Army has a system of military justice punishment, if he approves the com­ which is so much like that of the mittee recommendations. If he disap­ United States Armed Forces. Even proves the report, he may order the when the system is explained, many case referred for trial by court-mar­ observers are inclined to feel that this tial. system is a paper device only and one There is no routine review of the not really used by the Koreans. This proceedings of disciplinary commit­ is a false belief as is the case with so 'tees by judge advocates, although a many of the facts of life in lands commander may of course request re­ where the language barrier and the view. Review is rather l·egarded as difference in customs prevents com­ a matter to be handled by the staff plete understanding of the people. section in charge of personnel mat­ The rumor which spread at the time ters. of the death of General Walker in the Action of disciplinary committees motor vehicle accident that all the is not necessarily harsh. Very few of­ ROK soldiers involved had all been ficers were demoted in the first half summarily executed, is typical. This of 1953, and no enlisted men dis­ rumor gained such prominence that, charged. For example, assault and the then Senior Advisor to the ROK battery by officers against woman em­ Army Judge Advocate General, Lieu­ ployees of the Army might result in tenant Colonel John P. King, wrote a no more severe punishment than con­ memorandum to the Provost Marshal finement at home for one or two weeks of Eighth United States Army ex­ (the latter being legally excessive) plaining that the driver of the vehicle without loss of pay. Patently, the had been tried by general court-mar­ only real punishment here is the rec­ tial and sentenced to confinement for ord of the offense, which might affect three years after a finding of guilty promotion prospects. Punishments of negligent homicide and that no are noted in service records. In that charges were preferred against the no decision has been made to take le­ three other occupants of the Korean gal opinion on the relative seriousness vehicle involved. of offenses recommended to command­ As a matter of fact, the ROK Army ers for action by inspectors general or utilizes the comt-martial system pro­ The Judge Advocate Journal 29

lifically. For the month of July 1953, votes on findings and sentence as did statistics prepared by The Judge Ad­ the law member of U. S. military vocate General's Office indicate that courts prior to the enactment of the there were 428 trials by genera-I court­ Uniform Code of Military Justice. martial. Of these cases, 38 were of­ Moreover, his rulings are final and ficers, 357 were enlisted personnel cannot be objected to or overruled by and 33 were civilians including Army the court. Many of the procedural civilian employees. The sentences for safeguards which we consider vital these offenders varied from 24 cases to our system of justice are not to of capital punishment to five acquit­ be found in the ROK system of mili­ tals. It should be noted that 249 cases tary justice. It is true that there involved sentences to confinement for is a presumption of innocence, but less than one year. as Gen. Sohn explains, there is no To anyone familiar with the U. S. concept of reasonable doubt in the court-martial system, attendance at jurisprudence of Korea. A trained a Korean Army court-martial would lawyer as defense counsel is not re­ present him with a familiar scene quired by the Articles, although Arti­ physically because the observer prob­ cle 57 requires that a member of the ably would not understand Korean, Judge Advocate General's Depart­ the observer might feel that there ment (Corps) must be appointed as were no differences in procedure. One trial judge advocate, if available. Al­ should be disabused of this. idea for though the articles make no provision even under the present Articles for for legally trained defense counsel, the Government of the Constabulary the trials held at ROK Army Head­ there are concepts which are contrary quarters do utilize the services of to our system of justice. First, one members of the Judge Advocate Gen­ might notice in an important case that eral's Corps as defense counsel, as all members of the court. were wear­ do most courts-martial in the ROK ing the cross pen and sword insignia Army. The accused may also secure of the Judge Advocate General's De­ the services of a civilian counsel and partment. There must in all cases, it is not unusual in important trials as pointed out, be at least one "judge" to see civilian counsel in his black for each court-martial and the ROK robe and black cap appearing for the Army will appoint as many JAGC defense. Officers to the court as can be made As hereinbefore indicated, the Man­ available. In the courts held at ROK ual for Courts-Martial, which is so Army Headquarters in Taegu, a panel vital and used so extensively in the of JAGC Officers is permanently as­ administration of military justice in signed to the Court Section of the the U. S. Army, was not translated Judge Advocate General's Office. for use by the ROK Army. Nonethe­ Though challenges are authorized by less, the 1928 Manual is used as a Article 69,21 as a practical matter source book for procedural rules and members of the court are seldom chal­ for i·ules of evidence. In general, lenged. The law member, of course, however, it may be said that the pro­

21 Articles for Government of the Korean Constabulary. 30 The Judge Advocate Journal cedural and evidentiary rules used are mer 1950, taken the utmost in effort those of Korean civil law and vary by the Korean Army and the Korean greatly from the Anglo-Saxon rules. people. Unfortunately no beginning The hearsay rule is now said to have was made on correction of the system come into Korean jurisprudence by prior to the war which may have been court decisions, but witnesses are still due in part to the fact that the Judge not extensively utilized for the pres­ Advocate General was not a lawyer. entation of evidence and the trial Improvement in the system of mili­ judge advocate may present much of tary law began with the appointment the evidence, or present it by the of Brigadier General Lee Ho and has use of affidavits secured before trial. continued under the present incum­ This of course is a denial of the hear­ bent, General Sohn. Without waiting say rule and a denial of cross exami­ for the end of hostilities, the needs of nation to opposing counsel. To remedy discipline demanded attention and by this, opposing counsel is expected to order of the Chief of Staff of the bring the witness to court or present ROK Army an Army Criminal Law his own affidavit from the witness. Draft Committee was created.22 This An anomalous situation is found in committee was made up of one major the fact that the definitions of crimes general and one brigadier general who found in the translation of the 1928 were not members of the Judge Ad­ U.S. Army Articles of War are taken vocate General's Corps but otherwise in large part from the Japanese crimi­ all the military personnel appointed nal code, although recently the Korean to the committee were lawyers. Both National Assembly enacted a new General Sohn and General Lee Ho, criminal code containing the defini­ now Vice Minister of National De­ tions of crimes and this is now the fense, were named to the committee basic source. as well as four colonels, four lieu­ Conclusion tenant colonels and two majors. In addition the committee was made up As can be seen, there is now no "co­ of three members of the National As­ herent, homogenous or indigenous sembly, one member of the Standing system of military law" in effect in Commission of the National Assembly, Korea. What cohesion there is to the the Deputy Chief, Grand Prosecutor's entire scheme is provided by the ef­ Office, the Chief Administrator, Grand forts of The Judge Advocate General Court and the Chief, First Bureau, and his capable staff. No one is more Office of Legislation. This committee aware of the defects of the present began its work without instructions system than that office and they have from higher authority for as Gen. made efforts through the Army itself Sohn stated, "no commander can give to correct the deficiencies of the pres­ instructions to the commission because ent system. This, of course, has been of the most professional and or most difficult due to the military op­ academic work". This committee is erations which have, since mid-sum­ pl'eparing its WOl'k for the Army only

22 SO 57, Hq, ROK Army, 26 Feb. 52, as amended by SO 173-3, 15 June 1953. The Judge Advocate Journal 31 and there is no liaison with the other to engage an enemy without its bor­ Armed Forces which is to be re­ der. It does mean that Judge Advo­ gretted; although, both the Navy and cates for the various geographical lo­ the Air Force have relatively minor cations will exert great influence over forces in the Korean defense program military criminal law to the excl u­ at this time. s ion of unit commanders. To further .Much of the work had, of neces­ emphasize the influence of the Judge sity, to wait for the enactment of the Advocates, only Judge Advocates will llew Criminal Co

THE NOMINATING COl\fMITTEE-1955 Pursuant to the By-Laws of the Association, the following members in good standing have been appointed to serve upon the 1955 Nominating Committee: Capt. Edward F. Huber, JAGC-USAR, New York City, Chairman, and Col. John C. Herberg, JAGC~USAR, Maryland, Col. Daniel J. Andersen, USAFR, D. C., Cmdr. J. Kenton Chapman, USNR, D. C., Lt. Col. Harry L. Logan, Jr., JAGC-USAR, Texas, Col. Frank E. Moss, USAFR, Utah, and Lt. Col. Hugh T~ Fullerton, JAGC-NG, California, members. Any advices that members of the Association may wish to give the Committee should be directed to the Chai~man, Capt. Edward F. Huber, 61 Broadway, New York, New York.

. A 1955 DIRECTORY OF MEMBERS .. The Association is preparing a 1955 Directory of Members for distribution in May. All me~bers in good standing will be listed in the directory. If you have not yet paid your 1955 dues in the sum of $6.00, make your remittance promptly. Your cooperation will ·greatly facilitate the preparation of the Directory. Members will be listed as their names and addresses appear in the Asso­ ciation's mailing list. If you have any instruction as to your listing or if the envelope containing this issue of the Journal carries your name and address incorrectly in any particular, advirn the editor so that corrections may be made before the Directcry is sent to the printer. The Judge Advocate Journal 33

t:•11u111111111111111111111•llllllllNlllllllllllUllllllMHllllUlllllllllllllHlrtHllUHllllllllllUllHllUllllHlllHllllHlllllHlllllll/llllllllU1m11m11111h111111mutM1tR11UUlllUllllllllOll1llHllllllllfflllllllllllllllllllltMllllm"'""'lll~ i mmuunntmnm1ttM1utltllllNallltAllftllUlllHIUnnHt11UHlSIHIMlllllllllllllllHllllllllllllllllllHIUlllllHllllNUUlll+ulMl'UWllllllUlllHHUUHUllllUlllllllllUllllllHllllQllllUltHI~ ~ I. BOOK REVIEWS II Ii ~~ ! i;.;;;lllllllllllHNHllhltmlllllfUfflllll ~'HllKllllM"""'"""mu'""""'"""'""""""""'"'"""'nm"""m'""'""""""'-'"""-'"'"""""'""'""""""""""""""'"'""""'11HHllttHttlltlJtl1ntlllHlmlmlttlHllHIHlmt=:...... IMMl.IUlnNllMllMHUMntUllllllUlll...l-...HllUUIMSUmlUHIHIHIOU~llUlllUClltaNUIUutcllMlllllllllmlllllUUlllNUlllllU&i.UINJUUINIU-1... :ii MILITARY LAW By Daniel Walker New York: Prentice-Hall, Inc. 1954. $9.75. Pages 762.

With military law in the process fenses. The emphasis here is rather of becoming a "recognized" subject on procedure and due process-an for law school teaching,1 economic understandable approach considering law, that of supply and demand, de­ pre-1951 complaints. The phenome­ crees that case books be compiled to nal growth in the law of military ap­ fill the new need. peals is reflected in the cases selected This one, by Daniel Walker, a and the student is introduced to such former Commissioner of the Court newly-developed doctrines as "mili­ of Military Appeals, is a good collec­ tary due process", "general preju­ tion of the leading cases. The old dice" and the limited power of the standbys such as Dynes v. Hoover, law officer to rule on matters of juris­ Ex Parte Quirin, Ex Parte Milligan, diction; are all here. But it is the large num­ For the student or practicing at­ ber of opinions of the U. s: Court of torney who hopes to become familiar Military Appeals that distinguish with the law as it is under the Uni­ this volume from others.2 Even so, form Code of Military Justice knowl­ only about one-half of the book is edge of these cases is essential.3 And devoted to military justice and of the availability of the precedents, due this only twenty-four pages to of­ to the reporting system inaugurated

1 See The Teaching of Military Law in a University Law School, Frederick Bernays Wiener, 5 Journal of Legal Education, No. 4, pp. 475-99, reprinted in The Judge Advocate Journal, Oct. 1953, pp. 15-25; The Need for Including a Course on Military Justice in the Law School Curricnilum, Robert E. Joseph, 7 Journal of Legal Education, No. 1, pp. 79-83. 2 The excellent Military Jurisprudence, Cases and Materials, published in 1951, by the Lawyers Co-operative Publishing Co. with the advice and counsel of a group of officers of the J AGC is a more detailed collection but was too early for the main flow of USCMA opinions which began in 1951. A compar­ able case book is Military Law, by A. Arthur Schiller, published in 1952 by the West Publishing Co., but it also necessarily lacks the emphasis on the USCMA. 3 That the book is deemed to be a fairly worthy conduit for that basic knowledge may be known from the fact that Judge Paul William Brosman of the USCMA is a member of the Editorial Board of the Prentice-Hall Law School Series and Mr. Walker acknowledges the inspiration and encourage­ ment received from Judge Brosman in preparing the work. 34 The Judge Advocate Journal

for the United States Court' of Mili­ ences to law review articles lead the tary Appeals, renders it easy for him student to further study and think­ to go to the full opinions. No longer ing. The Unifcrm Code of Military need the military lawyer have to con­ Justice is reproduced in full. Al­ tent himself with mere digests of though large portions of the Manual opinions of generally inaccessible ap­ for Courts-Martial, 1951, are also pellate reviews. quoted at length throughout the tex­ The remainder of the compilation tual portions of the work, the editor covers such subjects as courts of in­ rightly believes that the entire Man­ quiry, court-martial review in the ual will be needed a's a supplement Federal courts, martial law and mili­ in teaching the course. tary government, the law of war and The case book, as a whole, presup­ military tribunals and even a fair poses the availability of a well­ representation of decisions in the field equipped instructor to give the course. that JAGs know as "military af­ Especially so where the aim is, as it fairs": enlistment and discharge; of­ is here, to provide only basic under­ ficers, their appointment, status and standing of the problems of military separation; the c9nstituency of the law rather than to set forth a de­ Armed Forces; liability of servicemen tailed consideration of the frequently in the civilian criminal courts; civil arising questions. .The editor makes rights and liabilities of members of clear his hope that the broad picture the Armed Forces; and civil relief will be emphasized rather than the acts. Without a library of Army minutiae. Thus the one semester Regulations it would appear difficult course contemplated will not make to teach anything beyond the barest JAG officers but it will certainly give fundamentals in this administrative the student an overall knowledge of field by the use of the book alone but the terrain and acquaint him with a there is value in calling attention to working knowledge of the busiest the respectable legal precedents in criminal court system under Amer­ this area.· ican law-a system whose size alone As in most modern case books the warrants increased attention in the editor has supplied frequent intro­ law schools, ductory notes to the various topics. DAVID I. LIPPERT, Footnotes and problems and refer­ Lt. Col., JAGC-USAR. The Judge Advocate Journal 35

LEGAL CONTROLS OF INTERNATIONAL CONFLICT A Treatise on the Dynamics of Disputes-And War-Law By Julius Stone Rinehart & Co. Inc., N. Y. 1954. 906 pp. $12.00

"... of the 3,441 years of better and Readings on Law and Society" known history ending in 1945, only in 1948. 268 years appear to have been free of any known wars." In the present work the author ha·s chosen to restore stature to the With such statistics in mind Pro­ laws of war in an unusual way. One fesso.r Steine is very much concerned of the causes of neglect, he believes, about the current lack of attention has been the inconsistency between to the laws of war. Contrary to the the static international law as found conclusion of many that the fear­ in the text books and the ·actual day ful prospect of future conflict de­ by day conduct of the nations of the mands that all efforts be concen­ world. Therefore he has written an trated on the complete banishment of excellent text book. on international war, he regards such a single-minded law but has integrated into it an ex­ view &s "a counsel both of unneces­ amination of "the unstable dynamics sary despair, and of unwarranted op­ of its operation in a world in tra­ timism." Accordingly, the decision of vail." His method is to supplement the United Nations International Law many of the text chapters with criti­ Commission not to undertake a re­ cal Di.3courses which examine "the vision of war law is a serious error forces which threaten the system with in his opinion. change or breakdown." The result Coming from so learned and dis~ is a book with usefulness far beyond tinguished a scholar in this field these the confines of classroom and its opinions are deserving of consider­ treasury of references to post "\Vorld able attention. Although he now oc­ "\Var II materials makes it indis­ cupies the chair of International Law pensable to any official or military and Jurisprudence at the University officer dealing with the U. N., NATO, of Sydney, Australia, Professor Stone war crimes, aggressive acts, repatria­ has also served as professor of In­ tion, military government, prisoners ternational Law and Diplomacy at the of war, and similar problems. Fletcher School of Law and Diplo­ It must not be supposed that Pro­ macy and as Assistant Professor at fessor Stone will be content with Harvard Law School. His "The fonocuous paper assurances in a re­ Province and Functions of Law", has vision of the principles of war law. been a landmark in the field of juris­ If there is a secondary theme to the prudence since its publication in 1945, book it is that there must be realism and the breadth of his scholarship about such treaties and conventions. was further evidenced by his joint War will continue to be hell and no editorship of the monumental "Cases powerful combatant is going to un­ 36 The Judge Advocate Journal duly restrain himself if he thinks he retain a trace of humanitarianism ran gain victory otherwise. Those there are no rules by which the air are the inescapable facts of life· as warrior can expect any quarter, not the author sees them. Yet there may even if he bails out. And worse off be areas where the combatant might is the object of the airman's bomb. be willing to be chivalrous if it would Th0 author is dismayed that with the not cost him victory: increased depersonalization of war­ "The Writer joins in the prayers of fare the one who drops the atom bomb men for the banishment of the "does not regard himself, nor for scourge of war; but he sees no such that matter does the bulk of man­ early prospect of its banishment as kind regard him, in the

Relative to the Protection of Civilian economic action which is now routine Persons in Time of War, he wryly in modern States.'' This situation he ob~erves, is based on moral sentiment characterizes as the "Twilight of Oc­ which in modern warfare seems no cupation Law" and asserts that be­ longer to exist. Yet it represents a fore it emerges therefrom a rethink­ considerable advance and certainly ing going far beyond mere revision supplements the Hague Regulations is required. en Land Warfare. But the absence It is not surprising to find him c:f an international court to protect skeptical also about atomic . control. the rights set forth is regarded as a Its effectiveness presupposes an over­ grave omission, and he is not too haul of most of the principles on hopeful of effective implementation in which the present international com­ tht present state of the international munity rests, foremost among them c0mmunity. Apparently he does not that of sovereignty. This he does regard these conventions as broad not foresee. Thus for the present we enough in scope to satisfy the need should seriously face this more imme­ for a thorough revision of war law. diate problem: whether any political Nor do they go far enough in the idea, noble or sordid, is worth de­ field of belligerent occupation. Aside f ending by atomic warfare? To ask from any question of mistreatment the question, he believes, does not there a1·e other difficult problems. mean abandonment of ideals but to ' "Most Western writers would agree use greater restraint and patience that the Occupant could not trans­ in working for their fulfillment. form a liberal economy into a com­ As for naval warfare on merchant munistic one; and Soviet writers ships his cynicism is corroborated by would no doubt be concerned about the Nurnberg Tribunal's acquittal of the reverse transformation." Admiral Doenitz. The finding that The post war occupations of Ja­ the Allies also indulged in unre­ pan and Germany are regrettably stricted submarine warfare should be not discussed. Thus by contrast this a challenge to international lawyers portion of the book appears more to rethink their positions: rules must academic than other sections. Never­ take into account the realities: theless the lessons derived from Ger­ "War law, even at its most merci­ man occupations prior to defeat are ful, is no expression of sheer hu­ l!lanity, save as adjusted to the exi­ stressed: "A modern Occupant can, gencies of military success, a truth while observing the specific prescrip­ as bitter (but no less true) about tions of the Hague Regulations attacks on merchant ships, as about against spoilation and appropriation, target area saturation bombing." still reduce the local people and terri­ On the whole, however, Nurnberg tory to economic ruin." The conven­ comes off fairly well at his hands. tions have just not kept pace with the Although he is gloomy about the fu­ realities of economic life: "They as­ ture prospects of the rules announced, sume a laissez faire economy in both fearing their misuse for propaganda the Occupant and the occupied States, purposes, he solves the interminable giving little guidance for the positive ex post facto argument very neatly. 38 The Judge Advocate Journal

He does not entirely agree with the for the individual to form and express common-law growth concept (so ably value judgments of right and wrong. advanced by the late Justice Jack­ "... it is perhaps the most tragic son). Instead he thinks it better to paradox of our century that the first admit doubt on the technical retro­ collective attempt to bring home to activity of the charge of aggressive individuals their responsibility for the war but to 'Stand strongly on the view scourge of war, should have been that the policy against retroactivity made in an age when the appropria­ was not violated. The Kellogg-Briand tion of truth by the State makes fail­ Pact for the Renunciation of War as ure almost inevitable." an Instrument of National Policy Can we not then look to the and other documents "at least served United Nations for anchorage in this to place the persons concerned suf­ sea of conflict? He is not too hope­ ficiently on notice of the growth of ful. In a chapter entitled "League such a rule to be held to have acted the Contemptible and United Nations at their own peril in contravening the Bold" he characterizes the U. N. it. . . . It is better to take the posi­ Charter as inadequate because of the tion that even if such acts were not failure to learn and apply lessons internationally criminal and punish­ from the League of Nations whose able in 1945, 'the time had arrived "techniques and machinery consti­ when they would be made so, and that tuted an international asset which it was as well to start then as after was spurned by the choice of a some future war." As for the crimes . streamlined 'organic' structure for against humanity they were so hein­ the United Nations security system." ous and so universally condemned by And the inevitable happened; the or­ other than Nazi systems of law that ganic machinery broke down and no person who committed them could regional defense pacts marked the have regarded them as innocent. end of the illusion. Some feared this He foresees a greater life expec­ anarchy even in 1945, but were re­ tancy of the humanity count than to garded as cynics. "Men mostly saw the aggressive war count mainly be­ what they wished to see-the face of cause the "vital interests" of States ordered collective security; the other are not involved. The concept of face was thus in the shadow. In crimes against peace must be evalu­ 1953, by contrast, all men see it as a ated in the light of what he calls commonplace that two systems of un­ "ominous trends". He doubts its controlled national power confront deterrent value, for if only the de­ each other, each inside and outside feated are to be adjudged guilty then the United Nations.... According to the national leaders are not so much its aptness for our present world it deterred as warned that they must [the U. N.] may still either unite the not lose. And the trend towards the nations for peace or divide them for "nationalisation of truth" is even war." more discouraging. Government con­ It must be apparent that to the trol of the organs of mass communi­ hopeful idealist the book offers not too cation make it increasingly difficult much encouragement but much to The Judge Advocate. Journal 39 think about. For the realist or for The traditional historical and philo­ the worker in the field from day to sophical portions are as challengingly day it provides excellent insights into presented as the controversial. the problems of our age with ref­ As a concise text it well deserves erences to every facet of the subject consideration for inclusion in a Judge that may have been discussed else­ Advocate library. where. For either it is an indis­ pensible guide. And for the student DAVID I. LIPPERT, it is stimulatingly written with ma­ trial for countless probing seminars. Lt. Col. JAGC-USAR.

MILITARY GOVERNMENT COURTS .IN GERMANY

By Eli E. N ohleman

Published as Training Packet No. 52 by The Provost Marshal General's School, Military Government Department. pp. 261.

Captain Nobleman, a reserve of­ presiding member of various military ficer of The Judge Advocate General's government courts in Germany; and, Corps and a member of the Judge Captain Nobleman determined to do Advocates Association, while prepar­ something about it. ing for military government work in As a doctoral thesis, Captain Noble­ 1943 became fully conscious of the· man has produced a survey and an­ need for a reliable reference work alysis of the international legal basis dealing with the activities of military and the organization and operation of occupation courts. Although occupa­ American military occupation courts tion forces of the United States had during the past 130 years of military used these tribunals during every ma­ and legal hiistory of the United States jor occupation over a period of about with particular emphasis and detail 130 years, there was no ready pub­ concerning the military government lished work in the field except the courts in Germany during and imme­ brief accounts in such standard, but diately following the combat phase obsolete, works as Berkheimer on Mili­ of World War II. Underlying the tary Government and Martial Law theme of the entire work is the au­ and Winthrop on Military Law and thor's conviction that military gov­ Precedents. The need was further ernment courts, properly organized manifested during the author's ex­ and competently staffed, . can be a perience as prosecutor, judge and most effective mechanism in the hands 40 The Judge Advocate Journal of occupying forces to reorient the as a guide to further detailed study, political thinking and outlook of the The Provost Marshal General's School occupied population. has adopted it as a "training packet". The work will be of invaluable as­ The book is copiously and accu­ sistance, not only to military person-_ rately documented. The appendices nel charged with the important re­ contain verbatim historical military sponsibility of organizing and operat­ government orders, proclamations, di­ ing military government courts in the rectives, and ordinances and a very future, but to all students of interna­ full bibliography and table of cases. tional law as well. Being thus ideally suitable as a source book for instructional purposes and RICHARD H. LOVE.

STATEMENT OF POLICY

The Judge Advocates Association, an affiliated organfaation of the Ameri­ can Bar Association, is composed of lawyers of all components of the Armed Forces. Membership is not restricted to those who are or have been serving as judge advocates or law specialists. The Judge Advocates Association is neither a spokesman for the services nor for particular groups or proposals. It does not advocate any specific dogma or point of view. It is a group which seeks to explain to the organized bar the disciplinary needs of the armed forces, recalling, as the Supreme Court has said, that "An Army is not a deliberative body," and at the same time seeks to explain to the non-lawyers in the armed forces that the American tradition requires, for the citizen in uniform not less than for the citizen out of uniform, at least those minimal guarantees of fairness which go to make up the attainable ideal of "Equal justice under law." If you are now a lawyer, if you have had service in any of the Armed Forces or are now connected with them in any capacity, active, inactive, or retired, and if you are interested in the aims herein set forth, the Judge Advo­ cates Association solicits your membership.

The Journal is your magazine. If you have any suggestions for its im­ provement or for future articles, please bring them to the attention of the Editor. We invite the members of the Association to make contributions of articles for publication in the Journal. Publishability of any article submitted will be determined by the Editor with the advice of a committee of the Board of Directors composed of Lt. Col. Reginald Field, Col. William J. Hughes, Jr., Col. Charles L. Decker, USA, Capt. George Bains, USN, and Col. Louis F. Alyea, USAF. NOTES ON UURllENT PllOUUREHENT OPINIONS

Furnishing of Information by Military tent requested, The Judge Advocate for Use in Private Patent Litigation General held there was no legal ob­ jection to furnishing the requested in­ The owner of a patent for a hy­ formation. draulic tire demounter requested in­ formation from the Government Failure to Appeal Default Termina­ whether it had purchased a ·Similar tion Does Not Preclude Appeal from device from a named manufacturer Excess Cost Assessment stating that the information was de­ A supply contract was terminated sired for use in private litigation with for default for failure to deliver the manufacturer to recover wages within the time specified, the con­ ·and royalties. The manufacturer had tracting officer finding that the failure furnished a demounter to the Gov­ to perform the contract did not arise ernment for test purposes under the out of causes beyond the control and usual agreement providing for no ex­ fault or negligence of the contractor. pense or liability on the part of the The contractor did not appeal from Government. The Government had the default action, but did appeal un­ not bought the device, although one der the standard "Disputes" clause was still being tested. The Judge Ad­ from the assessment of the excess cost vocate General of the Army was re­ of repurchase made several months quested to give an opinion upon later on the basis that the delay in whether 18 USC 283 and AR 345-20 performance was excusable. The Gov­ permitted the furnishing of the infor­ ernment contended that the question mation. The opinion is expressed of excusability was foreclosed by the (JAGP 1954/7264, 19 Aug. 1954) that contractor's failure to appeal within although the statute precluded the thirty days; that the only open is.sue furnishing of information which might was the amount of the excess cost. be made the basis of a claim against The Armed Services Board of Con­ the United States, even where assur­ tract Appeals (John Peterson, No. ances are given that it will not be 1633, 26 l\Iar. 1954) held that under so used, nevertheless, the informati?n the contract in question, an appeal requested could hardly support a claim from the assessment of excess cost against the Government or even a opened for its consideration the ques­ potential claim since using a patented tion of excusability of the default and invention solely for experimental pur­ that it was not necessary first to ap­ poses rather than for profit or prac­ peal from the prior decision of the tical advantage is not an infringe­ contracting officer terminating the ment. Accordingly, to the limited ex­ contract for failure to deliver. The 41 42 The Judge Advocate Journal

Board found in fact the delay not bond. The opinion is to the effect excusable and the excess cost prop­ that if the annual bond has been erly assessed. fully obligated, additional bonds must See Aero-Land Supply Company, be furnished for new contracts even ASBCA No. 1869, 25 May 1954, where though some of the contracts against a contract containing the standard de­ which the annual bond has been ob­ fault and dispute clauses was termi­ ligated have been completed becaurn nated for default for failure to make the contractor remains liable for lat­ deliveries and the contractor appealed ent defects and fraud even after final on the ground that default was ex­ inspection and acceptance, and the cusable. The Armed Services Board obligation of the performance bond is, of Contract Appeals held that default therefore, not terminated by the com­ was not excusable and on a later ap­ pletion of the contract, (JAGT peal by the contractor from the as­ 1954/6673, 26 Aug. 1954.) sessment of excess cost, the contractor again contended that default was ex­ Low Responsive Bid May Not Be Re­ cusable. The Board held that it had jected in Favor of Higher Bid already adjudicated that issue and de­ Offering Item Desired to Be Stand­ nied the appeal. ardized

Fully Obligated Annual Performance The Corps of Engineers requested Bond Remains Obligated Although approval by the Secretary of "Hobart Contracts Completed No. HF 30G" generator sets for standardization, which request was In non-construction contracts, per­ denied. Thereafter, invitations for formance bonds are required to the bids were issued for generator sets extent determined by the head of the described as "Hobart No. HF 30G or procuring activity and the penal sum equal". The invitation specified that is specified by the contracting officer. standardization was. contemplated. A However, a contractor anticipating submitted the lowest bid offering an entering into a number of supply or item containing the specific compon­ service contracts with a single agency ents of the Hobart generator, but B may furnish a single annual perform­ submitted a lower bid for an "equal" ance bond to secure all such contracts item. The Judge Advocate General and so long as the total of the penal of the Army was requested for ad­ sums required under such contracts vice ·concerning whether an award does not exceed the penal sum of the could be made to A on the ground annual bond, no additional bond need that his bid was the lowest which met be furnished as new contracts are the desired characteristics for stand­ made. The Judge Advocate General ardization. It was held (JAGT 1953/ of the Army was asked for an opin­ 2577, 24 Mar. 1953) that if the award ion as to whether new contracts may is to be made pursuant to the ad­ be obligated against the annual bond vertised invitation, the contract may so long as the penal sums required on not properly be awarded to A unless all uncompleted contracts do not ex­ there is a determination that the gen­ ceed the penal sum of the annual erator offered by B is not the equal The .. Judge.~ Adyocate Journal 43 of the Hobart or that B is not a re­ tax from the purchaser and make sponsible bidder. The opinion states remittance to the state (JAGT 1954/ that all bids may be rejected if in 8096, 1 October 1954). See J AJ No. the interest of the Government or 18, October 1954, page 36. if the bids are shown to be unrea­ sonable or collusive, and in that event, Contractor .May Pay Actual Prevailing there would be no objection to nego­ Wage Less Than Wage Erroneously tiating the contract. However, the Specified in Contract desire to standardize would not in it­ A construction contract contained self be an adequate ground for re­ minimum wage provisions as required jecting all bids in the interest of the by the Davis-Bacon Act (40 USC Government, since approval of such 276a) obligating the contractor to pay standardization had been denied by wages not less than those specified in the Secretary. Even if negotiation be the contract which in turn were based utilized, there is still the requirement that negotiated procurements be made upon a determination by the Secre­ tary of Labor upon the prevailing to the best advantage of the Govern­ ment and price and other factors may wages in the area. The hourly rate still require the award being made to specified for carpenters was $2.85, someone else than A. but the actual prevailing wage in the area was $2.75 per hour and this Auctioneer Selling Surplus U. S. Prop­ latter rate was used by the contractor erty Required to Collect State Sales in computing the bid and was the Tax scale of pay actually made by the contractor in performance. There­ The Judge Advocate General of the after, the Department of Labor for­ Army was asked to render an opin­ mally acknowledged the error and the ion as to whether an auctioneer who fact that the contractor was actually has contracted to conduct an auction paying the prevailing wage in the sale of surplus U. S. property in Cali­ area. The contracting agency re­ fornia may be required to collect the quested a decision from the Comp­ California sales tax from the pur­ troller General, which held that chasers at the sale. The opinion although there was a technical viola­ states that under California statute, tion of the contract ·terms, the carpen­ the tax is required to be collected ters were paid the wages prevailing from the co111Sumer by the auctioneer. in the area as contemplated by the While in JAGT 1954/6328, 22 July Davis-Bacon Act; thus there would 1954, the opinion was expressed that appear to be no reason for collection although sales of surplus property by action against the contractor for the the Government are subject to state benefit of its employees. It was fur­ sales taxes, the Government and Its ther held that since the contractor agencies could not be required to col­ used the $2.75 rate in computing its lect such taxes for the state, the bid, and in fact, paid higher wages in auctioneer contractor is not an agency the later stages of the contract, there of the United States and is required was no legal basis for requiring an under California law to collect the equitable adjustment in the contract The Judge Advocate Journal price. (Ms. Comp. Gen. B-119373, 27 B, and that was not low. The effect July 1954). of the bidder's waiver of its reserved right to reject an award on schedule Delh·ery Schedule Not Waived by Ac­ A alone was in effect a new bid on ceptance of Late Delivery that schedule after the bids had been The fact that supplies were ac­ opened. Conditions or reservations cepted by the Government under a which give a bidder a chance to sec­ contract at a date subsequent to the ond-guess his competitors after bid extended delivery date and that the opening must be regarded as fatal Government negotiated with the con­ to the bid (Ms. Comp. Gen. B 120436, tractor relative to the acceptance of 20 Aug. 1954). non-suitable items during the months Revocation of Termination Notice Ef­ thereafter was held not to constitute fective Only As a New Contract actual or constructive waiver of the delivery schedule, but mere forbear­ A negotiated fixed price supply ance on the part of the Government contract was terminated for the con­ in an opinion by the Armed Services venience of the Government, but Board of Contract Appeals (Taylor shortly thereafter a further require­ Corp., ASBCA 1795, 11 May 1954). ment for the contract of supplies was discovered and the contracting officer Reservation by Bidder of Right to Re­ and the contractor executed a supple­ ject Award May Not Be Withdrawn mental agreement, revoking the ter­ After Bid Opening mination notice and reinstating the Invitations for bids for the con­ contract. The propriety of this ac­ struction of a transmission line, the tion was the subject of an opinion of various· portions of which were de­ The Judge Advocate General of the scribed in separate schedules, were Army, JAGT 1954/7103, 22 Oct. 1954. i5Sued by. The Bonneville Power Ad­ The Judge Advocate General ex­ ministration. The low bid on sched­ pressed the opinion that the termina­ ule A contained a stipulation by tion of a contract means the abroga­ which the contractor reserved the tion or extinguishment of the exist­ right to refuse to accept the award ing agreement, and a contractual ob­ on that schedule unless he was also ligation, so terminated, cannot itself given the award on schedule B. After be revived by revocation of the ter­ the bids were opened, the bidder, ad­ mination by use of a supplemental vising the contracting officer that it ?greement. Such a supplemental would not exercise its reservation, agreement would constitute a new was awarded the contract for sched­ contract for the supplies and be sub­ ule A. A protest of award by the ject to the advertising requirements next lowest bidder was referred to of the Armed Services Procurement the Comptroller General who held the Act of 1947 (41 USC 151c), unless award was improper. The Comptrol­ such advertising or solicitation would ler General held that the only firm obviously accomplish no useful pur­ offer contained in the bid was that pose, which determination was ade­ on the combination of schedules A and quately supported by the facts in the The Judge Advocate Journal particular case. The opinion ex­ Cost of Lease for Period in Excess of presses also the view that inasmuch Contract Term Allowable if Reason­ as the purported revocation of the ably Incident to Performance termination notice resulted in a new procurement, .additional quantities The Armed Services Medical Pro­ could be included in the supplemental curement Agency awarded to a con­ agreement. tractor two cost reimbursement con­ tracts for the collection and furnish­ Uasic Agreement Containing Only ing of whole human blood. The first Standard Clauses Inappropriate contract, which authorized the con­ tractor to establish donor centers The Signal Corps proposed to ex­ throughout the United States and ecute with a contractor with whom it make improvements in its existing frequently contracted a basic agree­ centers, was executed on 1 December ment containing various provisions 1950 and called for completion by 1 to be incorporated by reference in July 1954. It was completed .June, subsequent fixed price supply con­ 1953. The second contract which au­ .tracts. One portion of the agreement thorized the contractor only to im­ contained various ASPR and APP prove its existing centers was exe­ standard clauses, which were to be cuted 28 April 1952 and terminated incorporated into subsequent con­ for the convenience of the Govern­ tracts by specific references to the ment on 22 July 1953. In September, applicable clauses. The proposed 1951, the contractor entered into a agreement was forwarded for review five year lease for a building to be to The Judge Advocate General of used as a blood donor center, which the Army (JAG 1954/8224, 18 Oct. center was thereafter used in the 1954) who commented that although performance of both contracts. Upon there is no legal objection to the pro­ completion and termination of the posed basic agreement, no useful pur­ contracts, the contractor unsuccess­ pose would be served by the instru­ fully tried to cancel the remaining ment since it merely utilizes existing portion of the lease and then re­ ASPR and APP clauses without de­ quested reimbursement for the cost viation. The use of the proposed of the lease for the full five year agreement would create unnecessary period. The extent to which the con­ and undesired complexity of refer­ tractor was entitled to reimburse­ ence in subsequent contracts without ment for the lease was submitted to achieving .a simplification of nego­ The Judge Advocate General of the tiations. The purPose of the basic Army for opinion. The opinion states agreement could best be served by that the lease was authorized by the affixing to subsequent contracts provisions of the first contract and mimeographed copies of those stand­ the rent thereunder may be recog­ ard ASPR and APP clauses, which nized as a cost under either contract are deemed necessary. at least for the period during which 46 The Judge Advocate Journal the contract was in existence. The term and the contractor may be fully allocation of the rentals between the reimbursed upon final settlement of two contracts would depend on the the contract .even though all of the terms of the seeond contract and the rental payments have not been made circumstances surrounding its execu­ by him. The Judge Advocate Gen­ tion and the intention of the parties. eral sugge&ts that if the entire cost If the contracting officer concludes of the lease is allowed, arrangements that it was reasonably incident to fhould be made to protect the Gov­ performance to take the building on ernment's interest in the remammg a five year lease, he may allow the term of the lease. (JAGT 1954/7542, entire cost .of the lease for the full 15 October 1954).

EDITOR'S NOTE: The above notes have been extracted from the Procurement Legal Service of the Department of the Army, Circulars Nos. 13-19. The Pro­ curement Legal Service contains digest of opinions of The Judge Advocate General, decisions of non-judicial agencies, decisions of Courts and general procurement information.

THE 1955 ANNUAL MEETING The Ninth Annual Meeting of the Judge Advocates Association will be held at Philadelphia on August 23-24, 1955, during the week of the American Bar Association convention. Captain James S. Clifford of Philadelphia as Chair­ man of the Committee on Arrangements, and Captain Robert G. Burke of New York City, and Col. Fred Wade of Middletown, Pennsylvania, have made arrangements for the annual banquet to be held at the Naval Officers' Club at Philadelphia on the evening of August 23rd. The tickets for the annual banquet will be $6.00 each. Since the facilities of the Club will limit attend­ ance to 300 guests, you are urged to make advance reservations with the national offices of the Association accompanied by your check. The business meeting will be held on August 24th. Reserve these dates on your calendar now. The convocation at Philadelphia will be the biggest and best JAA meet­ ing yet if you are there.

The Judge Advocates Association is a national legal society and an affilated organization of the American Bar Association. Members of the legal profes­ sion who. are serving, or, who have honorably served in any component of the Armed Forces are eligible for membership. Annual dues are $6.00 per year, payable January 1st, and prorated quarterly for new applicants. Applications for membership may be directed to the Association at its national headquar­ ters, 312 Denrike Building, Washington 5, D. C.

Please advise the headquarters of the Association of any changes in your address so that the records of the Association may be kept in order and so that you will receive all distributions promptly. /(ecent :beci3ion3 of the Court of ~lilitary Appeals

Instructions to Court Martial Mem­ man concluded the transcript, al­ bers Prior to Trial and Command though dehors the record, properly Influence considered as part of the proceedings Ferguson et al (Army), 5 USCMA 68, within the meaning of Article 39 and 22 October 1954 also among other reasons for consider­ The accused were convicted of mu­ ing the transcript, suggested the ap­ tiny at a post stockade (Article 94). plicability of the writ of coram nobis The board of review considered de­ since significant rights shown by hors the record of trial a transcript events not appearing in the record of statements made at a pre-trial con­ were involved. The Court held the ference held the day before the trial remarks of the staff judge advocate at at which the convening authority, the the pre-trial conference contravened chief of staff, the law officer, and the provisions of the Code and Man­ members of the court were in attend­ ual, but that the error of undue com­ ance. At this meeting, the staff judge mand influence thus shown was not advocate explained that there had jurisdictional so as to render the find­ been difficultie3 at the post stockade ings and tSentence void. By divided and that firm and prompt action in Court (Judge Latimer dissenting), cases coming out of these difficulties the decision of the boa-rd of review was necessary to avoid aggravation was modified by granting a rehear­ of the problem. The board of review ing. held the error of command influence shown by these matters outside of the Navarre (Army), 5 USCMA 32, record was jurisdictional and held the 15 October 1954 findings and sentence void. On cer­ The accused was convicted of wrong­ tification by The Judge Advocate Gen­ fully using morphine (Article 134). eral, the Court in three separate opin­ Upon voir dire examination, it was ions held the board of review and disclosed that three months before the the court could consider the transcript trial, the commanding officer (not the although outside the record. Judge convening authority) had conducted a Latimer would limit the consideration course of instruction in military jus­ to the issue of jurisdiction; Chief tice in which, through charts and sta­ Judge Quinn would make the con­ tistics, there was shown disparity in . sideration unlimited because of the treatment by special courts in accord­ general public nature of the question ance with the rank of the offender. of command control; and, Judge Bros- It was also- pointed out that an officer 47 48 The Judge Advocate Journal had received low efficiency reports be­ the president, a Rear Admiral, was cause he had been a member of sev­ assigned to the district by the Bureau eral courts martial whose findings and of Personnel to act as president and sentences were determined to be im­ permanent court member, and that proper by the rating officer. The de­ there were at least two other mem­ fense counsel did not challenge any bers of the court detailed as perma­ members of the court, each on voir nent members. The president sub­ dire disclaiming that he would decide mitted, from time to time, fitnc~s re­ the case on any other basis than the ports on the permanent court mem­ evidence presented. The question of bers based upon their performance of unlawful command influence was duty as members of the court, and raised by appellate defense counsel. prior to convening a new court, the The Court held that there was no. president would conduct a short in­ error, pointing out that Article 37 was doctrination course in which he would designed to preserve the integrity of indk.ate that on the question of military courts without unduly re­ whether an absence is prolonged, the ·stricting those responsible for the court shoulrl consider the table of conduct of military operations say­ maximum punishments as a guide. ing "forbidding or needlessly curtail­ The law officer testified on a chal­ ing lectures designed to prepare pros­ lenge directed against the president pective court members for the proper for cause that he had heard the presi­ discharge of their important function" dent say "that anyone sent up here would be improper. The court ob­ for trial must be guilty of some­ served that the commanding officer's thing". On the voir dire, the presi­ instructions, on the facts of the par­ dent testified that he did not recog­ ticular situation, were entirely war­ nize the presumption of innocence as ranted to preserve morale and disci­ a Constitutional right since he did pline. Judge Brosman dissented as not consider military persons as pos­ to the issue of command influence, an­ sessing Constitutional rights unle~s nouncing the view that the mention specifically given by Congress. The of efficiency ratings constituted "a challenge against the president of the veiled threat" to court martial mem­ court for cause was not sustained. bers in the performance of their On petition of the accused, the Court duties. held that the ruling on the challenge Deain (Navy), 5 USCl\IA 44, was prejudicial error and set aside 15 October 1954 the finding and sentence and ordered the charges dismissed. The Court The accused was convicted of de­ stated that the president's concept of sertion for an absence in excess of the Constitutional rights of military sixty days (Article 85). The board personnel standing alone was not bias of review reduced the finding to AWOL and mitigated the sentence. to sustain the challenge, but his opin­ The case went to CMA on petition of ion that "anyone sent up here for the accused. It appeared that the trial must be guilty of something" court was appointed by the com­ demonstrated a fixed and deep-seated mandant of a Naval district and that disposition to give less than full effect The Judge Advocate Jcmrnal 49 to the presumption of innocence which from the service. The legal officer, impaired his impartiality and dis­ although recommending reduction in qualified him. The Court also found the sentence of confinement and for­ his advice concerning the use of the feiture, did not recommend that the table of maximum punishments as a BCD be remitted in view of the policy guide for determining a prolonged ab­ letter, and the convening authority sence was erroneous. The Court also indicated that it did not take action criticized the practice of making fit­ to remit the BCD for that reason. The ne~s reports on the performance of board of review affirmed; and, on pe­ permanent members of the court since tition of the accused, the Court held such reports would have the effect of that error was committed with re­ impeding the freedom and independ­ spect to the sentence. The Court ence of action of those members. stated that the Code provides that the convening authority shall approve Impartial Post Trial Review such part of the sente::ce as he finds Haims<>n (Army), 5 USCMA 208, correct in law and fact, and as he, in 3 December 1954 his discretion, determines should be On petition of the accused, the approved. The record disclosed that Court held the staff judge advocate the convening au.thority was errone­ is not disqualified to review a record ously prompted into belief that his of. trial merely because he prepared discretion to remit or suspend the for the convening authority a com­ BCD had been withdrawn by the De­ mand endorsement to the charge sheet partmental letter. The record was advising the trial counsel as to ·his returned to the convening authority duties, the nature of the charge, wit­ for reconsideration. nes~es to be called, and availability Clisson (Air), 5 USCMA 277, of documents. Such an endorsement 17 December 1954 did not suggest that the convening authority had predetermined the issue The accused was convicted of lar­ of guilt or innocence, nor did it make ceny (Article 121). After trial, the trial counsel conducted a post trial the ~taff judge advocate a participant at the trial level by directing in detail interview and recommended that the trial tactics designed to secure con­ sentence as adjudged be approved. viction regardless of guilt or inno­ The post trial report signed by the cence. trial counsel as Staff Judge Advocate was sent with the record of trial to Dougherty (Navy), 5 USC.MA 287, the convening authority, whose staff 17 December 1954 judge advocate concurred, and the The accused was convicted of a sex­ findings and sentence were approved ual offense and 5entenced to a BCD by the convening authority and af­ among other punishments. The court firmed by the board of review. On by a letter of clemency unanimously petition of the accused, the Court recommended that the BCD be re­ held that there was prejudicial error mitted. A Departmental letter of in­ and ordered the record i·eturned to structions provided that known homo­ the convening authority for reference sexual individuals must be eliminated to a qualified staff judge advccate 50 The Judge Advocate Journal without previous connection with the cmong other offenses was sentenced case for review. The Court stated: to confinement at hard labor for nine "A trial counsel may not thereafter months and to pay a fine of $500 and act as. staff judge advocate to the to further confinement until payment reviewing authority". The previous of the fine not in excess of four addi­ antagonistic role of trial counsel pre­ tional months. The Government con­ vents his exercising that degree of tended that the accused was not en­ impartiality required by the Code. titled to a review by CMA ~ince the (Judge Latimer dissented.) confinement imposed as punishment, was less than one year. On petition, Hightower (Air), USCMA 385, the Court held that it did have juris­ 7 January 1955 diction under Article 67b ( 3). The The trial counsel who prosecuted court found that the alternative con­ an earlier case out of which the finement to compel payment of the charges of perjury and subornation fine was part of the sentence and, against the accused arose, although therefore, the sentence was for a pe­ appointed as trial counsel, did not riod in exce~s of one year, and the participate in the trial of the accused accused was entitled to a review by for those charges. · He did, however, the Court. as assistant staff judge advocate, con­ duct the post trial review and pre­ Prior Participation of the Law Officer pared the staff judge advocate's re­ view over his signature. The staff Schuller (Army), 5 USCMA 101, judge advocate concurred in the re­ 5 November 1954 view. On petition of the accused, the While serving as acting staff judge Court held there was prejudicial error advocate, the law offiter of the court as to the post trial review. Although which tried an ·accused signed and Article 6c prohibits the trial counsel submitted the pre-trial advice· re­ from serving as SJA in the post trial quired by Article 34 recommending proceedings in the "same case", cases trial by GCM. The advice was signed arising out of the same circumstances without reading or checking the file are to be regarded as the "same case" at the direction of the staff judge within the meaning of this prohibi­ advocate, it being contended that he tion. Prior connection with the case acted only as agent of the staff judge against the accused would affect the advocate. Although a copy of the ad­ impartiality of the review. The fact vice was in the defense counsel's files, that ·the SJA concurred in the review the defense courusel stated that he was does not satisfy the Code requirement, unaware that the law officer had and, therefore, a further review by a signed the advice and neither the trial qualified staff judge advocate was counsel nor the law officer disclosed directed. (Judge Latimer dissented.) that prior participation at the trial. The accused was convicted of wrong­ Garcia (Army), 5 USCMA 88, ful appropriation and adultery, but 5 November 1954 acquitted of rape. The board of re­ The accused, a civilian employed view held it was prejudicial error for by MSTS, on conviction for robbery the law officer· to fail to show his The Judge Advocate Journal 51 prior participation and ordered a re­ on a "tip" made a search of the billet hearing. On certification by The occupied by the accused with others Judge Advocate General, the Court and the accused was asked without affil'med the decision of the board of any warning under Article 31 to point review (Judge Latimer dissenting). out his clothing. The accused identi­ The Court held that the accused was fied his clothing and the narcotic was deprived of his right to have a quali­ found in his overcoat. The defense fied staff judge advocate make an in­ counsel at trial objected. to the ad­ dependent and professional examina­ mission of the' statement by the ac­ tion of the evidence and submit to the cused which identified his· clothing. convening authority an impartial The objection was overruled and then opinion as to whether it supported a confession, which was subsequently the charges. Even if the acting staff obtained from the accused, was aho judge advocate was acting as agent introduced in evidence. On petition for the staff judge advocate, the re­ of the accused, the Court held that sponsibility for pre-trial advice rests there was prejudicial error and or­ on the person holding the office at the dered 'a rehearing, saying Article 31h time the advice is signed, and the per­ provides that an accused or suspect son signing the advice stated that he may not be demanded to make any did so without knowing anything statement i·egarding the offense of ,about the evidence. Moreover, there which he is accused or suspected. was an affirmative duty to disclose Here the accused's statement regarded any ground for challenge, which duty the wrongful possession. the trial counsel and law officer neg­ Howard (Army), 5 USCMA 186, lected. The Court stated that it was 26 November 1954 unwilling to charge th~ accused with the consequence of the failure to ex­ The accused as the result of ad­ ercise due care when it appeared that missions made as a prosecuting wit­ the trial counsel and law officer had ness in another case was later charged actual knowledge of the disquaUfica­ with larceny and assault and con­ tion. The Court concluded by saying victed. At the other trial, he was that the accused was dep-rived of an not advised of his rights under Arti­ important pre-trial protection, which, cle 31. Up-on his own trial, his judi­ when coupled with the failure of the cial confession in the earlier case was trial counsel and law officer to disclose received in evidence over his objec­ the law officer's previous connection tion. The board of review applying with the case, warrante.d a reversal Article 31 set aside the findings, hold­ of the conviction. ing the failure to warn him of his rights was prejudicial error. Upon Protection Against Self-Incrimination certification, the Court reversed the board of ·review holding that Article Taylor (Army), 5 USC.MA 178, 31b cannot be interpreted to apply . 26 November 1954 at a trial, the provision offering only The accused was convicted of the pre-trial protection to one who is be­ wrongful possession of marijuana ing investigated for the commission (Article 134). Military police acting of an offense. 52 The Judge Advocate Journal

Barnaby (Army), 5 USC.MA 63, the first statement was coerced, and 15 October 1954 that its admission, notwithstanding The accused was convicted of wrong­ other evidence, denied the accu~ed of fully using a narcotic drug. After due process of law, and ordered a re­ being arrested, the accused at an hearing. On certification by The Army hospital was ordered to give Judge Advocate General, the Court a urine specimen, which, upon an­ reversed the board of review holding alysis, revealed the presence of mor­ the statement was not inadmi~sible phine. At the trial, the defense coun­ because of the failure of the victim to sel objected that the sample had been warn the accused of his rights ;;;ince obtained from the accused involun­ Article 31b is applicable only to tarily and that thus he was required statements made by an accused or a to incriminate himself. The objection suspect during the course of an in­ was overruled. The Court on petition vestigation being conducted with i.>ome of the accused, held that the accused's color of officiality. The Court also pr

On petition of the accused, the Court confession as to the forgery which held that there was no error in the was also used at the trial over the admis.sion of these statements since objection of the accused. The ac­ Article 31b is applicable only to in­ cused was convicted and from the terrogations conducted by persons board of review's opinion affirming subject to the Code and the French the conviction, the accused petitioned officials who took the statements in the Court for review. The Court held the instant case were not in that cate­ that there was no error in the ad­ gory. The failure of civilian law en­ mission into evidence of the results forcement authorities to advise the of the search and the subsequent accused of his rights under Article 31 confession. The Court stated that the did not operate to deprive the court­ search was initiated by the French martial of any statements secured by police and the military police investi­ the civilian authorities. gator's presence was no more than an incidental element. Therefore, the Legality of Search and Seizure search was not an American one with­ Deleo (Army), 5 USCMA 148, in the prohibition and safeguards of 26 November 1954 the Fourth Amendment, and the only test to be applied to the search and A French police inspector armed seizure was one of reasonableness. with letters rogatory of a French The Court found the search and seiz­ magistrate in the company of an ure reasonable for probable cause ex­ American CID agent interviewed the isted and the letters rogatory con­ accused who was suspected of illegal &tituted the only judicial process currency transactions. The accused's available since no American court is commanding officer called the accused available and empowered to issue war­ to the orderly room where he was rants in France. The search being taken into custody by the CID agent reasonable, the seizure was sustained who then searched the accused and since the evidence seized was rela­ found a counterfeit bill upon him. A tively apparent though not related to search was then made of the accused's the original purpose of the search. automobile on the post and his apart­ The Court went on to state that even ment in a nearby French town. While if the search had been unlawful, the the French inspector was making the confession was admissible since it was search of the apartment, the CID not the result of the search. (Judge agent happened to notice evidence of Latimer dissented.) forgery, a matter theretofore referred to .him for investigation, and upon Volante (Navy), 4 USCMA 689, further search, found additional evi­ 24 September 1954 dence of that offense. This evidence The accused, a post exchange clerk, was admitted over objection, in the was convicted of larceny (Article court-martial trial of the accused for 121). There had been an inventory forgery. After the French investi­ ghortage in the PX and two soldiers gation was completed, the CID agent employed in the PX determined to explained to the accused his rights .search the accused's personal effects under Article 31 and then took his because they were afraid that he The Judge Advocate Journal might be transferred and they would -The board of review having affirmed be charged with the shortage. They the conviction, the accused petitioned found some PX merchandise in the the Court which held that there was accused's wall and foot lockers and prejudicial error and ordered the as a result of this discovery and re­ charges dismissed. The Court in its port, a further official investigation opinion stated that jeopardy attaches by the provost marshal was made and following the presentation of the evi­ thereafter the accused, having been dence unless the trial is terminated explained his rights under Article 31, prior to findings by reason of "mani­ made a confession. The evidence thus fest necessity". The majority of the obtained was admitted at the trial. Court held that the law officer should On petition of the accused, the Court have ruled upon the mis-trial and held that although the original search that the convening authority had was illegal, there was sufficient evi­ usurped that duty of the law officer. dence to support the law officer's con­ It concluded that the accused having clusion that the search was made by been denied that ruling, which would the soldiers unofficially and motivated have been subject to review, was by personal interest. The Court stated prejudiced and the plea of former that evidence obtained as a result of jeopardy should have been granted. a search by private persqns is ad­ On an unrelated point, the Court held missible and not within the prohibi­ that the prosecution's introduction of tion of Paragraph 152 of the Man­ the deposition of a French National ual, which extends only to unlawful a;; proof of the corpus delecti in this searches conducted by pereons acting non-capital case was improper in the under the authority of the United absence of a showing of inability or States. refusal of the witness to testify. Former Jeopardy Insanity - Alcoholic Amnesia Stringer (Army), 5 USCMA 122, Bourchier (Navy), 5 USCMA 15, 19 November 1954 8 October 1954 On the first day of a trial for lar­ The accused was convicted of rape ceny, the prosecution introduced some (Article 120). The prosecutrix while evidence which brought about ex­ waiting for a bus, accepted a ride pressions from the court concerning with the accused, a stranger, and the inadequacy of the prosecution and while enroute in his automobile, they the evidence being presented. Upon made several stops on one of which at reconvening on the second day of a golf course, ;;he, out of fear, sub­ trial, the trial counsel announced that mitted to three acts of intercourse. the convening authority withdrew the The prosecutrix reported what had charges and would refer them for occurred to her husband upon arriv­ trial by another court. Defense coun­ ing home and a medical examination sel objected to the withdrawal. On indicated recent sexual intercourse. the second trial for the same offense, The defense claimed alcoholic amnesia. a plea of former jeopardy was over­ A psychiatrist called to substantiate ruled and the accused was convicted. the claim of the defense, over ob­ The Judge Advocate Journal 55

jection of the defense, testified that ing evidence attacking the prosecutrix' a truth drug would aid in determining character and veracity. The Court whether the claim of alcoholic amnesia further held that the attempts to im­ was genuine. The accused's petitions peach the verdict of the court-martial for review and for a new trial were with affidavits concerning unsworn denied and he then petitioned for statements made by court members reconsideration. Attached to the pe­ were inpermissible. Judge Quinn dis­ tition was the affidavit of a psychia­ sented on the ground that serious trist to the effect that he had admin­ doubt was cast upon the entire testi­ istered truth serum to the accused mony of the complaining witness, who and that under the influence of the had accepted a ride with a stranger drug, the accused related that he and and made no effort to leave even the prosecutrix had gone to a drive­ though the opportunity presented it­ in restaurant and that while there self. the prosecutrix by improper conduct Burke (Navy), 5 USOIA 56, induced the acts which followed at 15 October 1954 the golf course, which were entirely The accused was convicted of sleep­ with her consent and cooperation. ing on post after having been duly This affidavit was corroborated by an posted (Article 113). The evidence affidavit of a waitress at the drive-in showed that the accused had four or restaurant and there were other affi­ five cans of beer a few hours before davits attacking the character of the being awakened for guard duty and prosecutrix with respect to chastity. that he W!l.3 under the influence and There were also affidavits filed with not in the best physical condition to the petition for reconsideration inti­ perform sentinel duties. Witnesses mating command influence on the stated that he was· not drunk, but court. The court denied the petition that he was suspected of having been for reconsideration saying that if the drinking and was not entirely fit to accused was characterized by genuine perform his duties. Later the ac­ amnesia at the time of trial, then his cused was found to be asleep on post. testimony was truly unavailable at The defense was based on alcoholic the trial and if there were a true re­ amnesia. The conviction was affirmed covery of recollection thereafter, new by the Court. The Court stated that evidence would have been discovered. the record did not disclose that degree However, the defense made a con­ of inebriation as would make him scious choice not to use the truth mentally unresponsible for his mis­ drugs in exploring the accused's mind behavior. Even though the accused at the time of trial. Some doubts claimed alcoholic amnesia, his be­ were expressed by the court concern­ havior was such as to show that he ing the efficacy of evidence produced was conscious of his acts. Voluntary by truth serum interviews, but hinged intoxication not amounting to legal its opinion on the basis that the de­ insanity is not a defense when a court fense did not use due diligence in martial can find the mental and phys­ fathoming the subconscious mind of ical condition of a sentry such that the accused with drugs or in secur­ the posting officer was not charged 56 The Judge AdYocate Journal ------with notice that the sentinel could Kunak (Army), 5 USC!\IA 3.16, not perform his duties. (Judge Quinn 30 December I 95.t dissented.) The insanity test of the Durham case was also rejected by the Court in Smith (Army), 5 USCMA 314, this case. Here the accused was con­ 30 December 1954 victed of premeditated murder and The accused civilian was convicted sentenced to death. The accused shot of premeditated murder (Article and killed an officer who was seated 118 ( 1)) and was sentenced to be im­ in a mess tent. The defense was prisoned for life. The accused fatally "irresistible impulse". The Court ap­ stabbed her husband, an Army officer, plied the rule as set forth in Para­ while stationed in Japan. The prin­ graph 120b, MCM 1951, as the mili­ cipal issue ·raised was insanity. The tary test of insanity. The findings Court in affirming the conviction and sentence were reversed for the stated the military test of mental re­ failure of the Jaw officer to instruct sponsibility is p.hrased in terms of to the effect that if, in the light of all whether the accused was at the time tr.e evide:rce, the court martial has a of the alleged offense so far free from reasonable doubt that the accused was mental defect, disease, or derange­ mentally capable of entertaining the ment as to be able, conceming the rremeditated design to kill involved particular acts charged, to distinguish in the offense of premeditated murder, right from wrong and to adhere to it must find the accused not guilty of the right. The Court specifically re­ that degree of the crime. The record jected as unacceptable in court mar­ was returned to The Judge Advocate tial cases the rule of U. S. vs. Dur­ General for reference to a board of ham, 214 Fed. 2d 862, to the effect review for reconsideration of the de­ that the test of insanity requires that gree of the homicide or return for re­ unless the jury believe beyond a rea­ hearing. sonable doubt either that the accused was not suffering from a disea=e or Place of Trial - Change of Venue defective mental condition or that the act was not the product of such ab­ Gravitt (Air), 5 USC.MA 249, normality, it must find that the ac­ 3 December 1954 cused was not guilty by reason of The court-martial convened by an insanity. The Durham case rule, the Air Force commander and composed Court found, to be uncertain, would of Air Force personnel for the trial provide no guidance to the court­ of an Airman for premeditated mur­ martial, fails to differentiate between der, was, by direction of the convening mental defect and character or be­ authority, convened at an Army in­ havior disorders, would encourage stallation for reasons of convenience malingering and would ignore the and availability of witne=ses. The doctrine of partial responsibility, defense counsel moved that the court which is recognized in military Jaw adjourn and reconvene at an air base with reference to premeditation, on the grounds that because the vie­ The Judge Advocate Journal 57

tim of the homicide was an Army such evidence could be considered only man, Army area was "hostile terri­ for the purpose of determining the tory." The law officer overruled the accused's requisite intent to remain motion. On mandatory review from away permanently. In affirming the a conviction for premeditated murder, conviction, the Court held that prior the Court held that there was no acts of misconduct are admissible if error. Although a motion for change they tend to prove motive or intent of venue is not specifically referred and if they shed light on the accused's to in the Manual for Courts Martial, mental attitude. The evidence of an accused is entitled to a fair trial prior misconduct in this case was and if the accused can demonstrate held to be distinctly relevant. that the court w~uld be adversely in­ fluenced by the atmosphere of hos­ Duplication of Specifications tility or partiality against him at the place of trial, he would be entitled to Johnson (Navy), 5 USCMA 297, be tried at some other place. The 17 December 1954 law officer's dE!nying the motion was The accused was convicted of two proper, however, since the only specifications alleging desertion, one ground advanced in its support was by enlistment in another Armed Force that the victims of the alleged mis­ (Article 85 (a) (3)), the other with conduct of the accused were Army intent to remain away permanently personnel. There was no evidence of (Article 85 (a) (1)) . The facts re­ any action or any declaration of hos­ vealed that on 10 November 1952, the tility by Army personnel at the place accused went AWOL from his ship of trial. and while in that status on 20 No­ Prior Acts as Proof of Intent vember 1952, enlisted in the Army without disclosing that he was not Graham (Navy), 5 USCMA 265, separated from the Navy. Upon dis­ 10 December 1954 covery, he was returned to the Naval The accused was convicted of deser­ control. A board of revieV{ held that tion with intent to remain away the two desertion specifications were permanently (Article 85). The prose­ duplications and that he could not be cution's case was based upon extracts convicted and sentenced under both. of the accused's service record and On certification, the Court affirmed from that source there was also ad­ the action of the board of review mitted into evidence over objection holding that when Congress enacted entries showing that the accused had the Uniform Code of Military Justice, been convicted of unauthorized ab­ it did not intend to create new de­ sences on other occasions. The de­ sertion offenses; and, therefore, Arti­ fense position was that these prior cle 85 (a) (3) did not create a sub­ A WO L's were terminated by surren­ stantive offense but merely prescribed der and were not admissible. The a method of proving the offense pre­ law officer instructed the court that scribed by Article 85 (a) (1). lVhat the 11en1bers Arc Doing

Alabama Carlisle Barracks, Pa., as a Con­ sultant-Adviser during the Manpower Brig. Gen. James E. Morrisette, who retired from the Army in 1946, now Course. His present reserve assign­ engages in the private practice of law ment is Commanding Officer of the Mobilization Designee Detachment for in association with the firm of Mc­ the G-1 Division, General Staff, U. S. Queen & McQueen with offices in the First National Bank Building, Tusca­ Army. loosa. General Morrisette is lecturer l~lorida in Constitutional Law at the Univer­ sity of Alabama, School of Law. Lt. Michael Zukernick, recently seP­ arated from a tour of ~xtended active Distl·iet of Columbia duty as a Judge Advocate officer with Members of the Association in the the 45th Infantry Division, has an­ Washington area honored Maj. Gen. nounced his entry into the private Claude B. Mickelwait, Maj. Gen. Al­ practice of the law with offices at 420 bert M. Kuhfeld, and Brig. Gen. Lincoln Road, Miami Beach. Moody R. Tidwell, Jr., at a reception Maj. Irving Peskoe, until recently and dinner held at the Bolling Air Staff Judge Advocate, Macdill Air Force Base Officers' Club on January Force Base, having been released 31, 1955. The occasion of the dinner from active duty, has opened offices was the recent promotion of these of­ for the practice of law at 1000 North ficers. Brigadier Generals George Krome Avenue, Homestead. Hickman and Stanley W. Jones, who were also :recently promoted, were un­ Hawaii able to be present at this affair, but Judge and Mrs. George W. Latimer will be similarly honored in the near visited Hawaii from January 23rd to future. February 2nd. Judge Latimer con­ Col. Randolph C. Shaw, until re­ ferred with military officers on the cently a member of the Armed Serv­ Uniform Code of Military Justice. On ices Board of Contract Appeals, has January 28th, Judge and Mrs. Latimer announced his entry into the private were guests of Judges Advocates and practice of admiralty and administra­ legal officers at a dinner at Fort tive law with offices in the Warner Ruger's Cannon Club. Among the Building in Washington. ninety guests attending were Capt. Col. Frederick Bernays Wiener, Chester C. Ward, USN, Legal Officer Secreta:ry of the Association, served for the Commander-in-Chief, Pacific, a two weeks tour of active duty in Col. Allan R. Browne, Judge Advocate, December at the Army War College, U. S. Army, Pacific, Capt. Robert A. 58 The Judge Advocate Journal 59

Fitch, Legal Officer, 14th Naval Dis­ the general practice of law in the trict, Col. Jean F. Rydstrom, Judge Kalamazoo Building at Kalamazoo. Advocate, Pacific Division, MATS, Maj. R. A. Scherr, Legal Officer, Fleet l.Uissonri Marine Forces, Pacific, Lt. James S. Bertram W. Tremayne, Jr., recently Cooper, Legal Officer, 14th Coast announced the formation of a partner­ Guard, and Rear Adm. George L. Rus­ ship for the general practice of law sell, formerly Judge Advocate General under the name of Tremayne & of the Navy, and presently Pacific Joaquin with offices at 25 North Fleet Submarine Force Commander. Meramec Avenue, St. Louis (Clayton) 5. Illinois Capt. Hugo Sonnenschein, Jr., of Nebraska Chicago, recently announced the re­ Col. R. C. Van Kirk, until recently moval of his office to the Harris Trust assigned to the National Guard Bu­ Building and his association with the reau as Counsel, has announced the firm of Martin, Craig & Chester. opening of offices for the practice of law in the First National Bank Build­ Louisiana ing at Lincoln in association with Harry S. Stephens (6th OC) re­ Clayton Burkett Van Kirk. Col. Van cently announced the removal of his Kirk is also Counsel to the General offices for the practice of law to the Outdoor Advertising Company, Inc., Ricou-Brewster Building, Shreveport. with offices in Washington, D. C. l.Uaryland New l.Uexico Capt. Robert E. Bullard recently Lt. Col. R. F. Deacon Arledge (1st announced the removal of his office OC), Judge Advocate of the New Mex­ from Silver Spring to 215 East Mont­ ico National Guard, recently retired as gomery Avenue, Rockville. Capt. Judge of the Second Judicial District Bullard is Commanding Officer of the Court at Albuquerque and reentered Service Company, 115th Infantry the private practice of law with of­ (Maryland National Guard). fices at Albuquerque in the Sunshine Building. lUassachusetts Lt. Levin H. Campbell, III, upon New York completion of a tour of active duty as Justin L. Vigdor, having completed Judge Advocate officer, has entered a tour of extended active duty in the the private practice of law in asso­ Army Judge Advocate General's ciation with the firm of Ropes, Gray, Corps, has become associated with the Best, Coolidge & Rugg, with offices firm of MacFarlane, Harris, Dankoff at 50 Federal Street, Boston. & Martin for the general practice of law with offices in the Central Trust l.Uichigan Building, Rochester. John M. Pikkaart (1st OC) recently Michael J. Watman, of Staten Is­ announced the opening of offices for land, appears to be quite active in 60 The Judge Advocate Journal veterans affairs, having been elected fices for the practice of law in the for the year 1955 as Vice Commander Failing Building, Portland 4. Capt. of the Tappen Post, American Legion; Stoll has been General Counsel to the 1st Vice Commander of the County Bonneville Power Administration. Catholic War Veterans and Judge Ad­ vocate of the Father Campbell Post Col. Benjamin G. Fleischmann (3rd of Catholic War Veterans, as well as Off), is busily engaged in research to Judge Advocate of the Flynn Post, substantiate the claim that the Port­ AMVETS, and the Halloran Chapter land, Oregon Chapter of the Reserve of the DAV. Officers Association of the United Abraham Spector, having completed States, having been organized on May a tour of extended active duty during 3, 1921, is the first chapter of that As­ which he was assigned to the Claims sociation. Division, BOJAG, Ft. Holabird, Mary­ Utah land, and later as Assistant Staff Judge Advocate, New York Port of Brig. Gen. Franklin Riter of Salt Embarkation, recently announced the Lake City was installed as Worshipful return to private law practice with Master of the Mt. Moriah Lodge No. offices at 16 Court Street, Brooklyn 1. 2, F. & A. M. at the annual banquet of the Lodge on December 20, 1954. Ohio Calvin A. Behle (1st CT) who has Lt. Col. Ralph G. Smith (9th OC) been Grand Chaplain was installed as of Columbus was recently appointed a Trustee of the Lodge. as Judge of the Municipal Court of ll'iseonsin Columbus. Col. Smith is SJA of the 37th Infantry Division, Ohio National Lt. Charles E. White, having re­ Guard. cently completed a tour of extended active duty, has resumed the private Oregon practice of law as a member of the Capt. Norman A. Stoll (6th OC), firm of Davison & White with offices recently announced the opening of of­ in the Tremont Building, River Falls.

~u ~~tnnriam The members of the Judge Advocates Association profoundly regret the passing of the following members w~ose deaths are here reported and extend to their surviving far.1ilies and relatives deepest sympathy: Lt. Col. Max Felix of Los Angeles, California, died October 6, 1954. Col. Felix, a charter member of the Association, was at his death engaged in general practice as a member of the firm of Lawler, Felix and Hall. Capt. William S. Begg, a charter member of the Association, died Novem­ ber 18, 1954. Capt. Begg engaged in the private practice of law with offices in New York City.