THE ARMY LAWYER July 2015 ARTICLES Review of Developments in Instructions Lieutenant Colonel Deidra J. Fleming and Lieutenant Colonel Tyesha L. Smith A Whole Other Matter: The New Article 60(d) and Handling Victim Submissions During Clemency Major Angela D. Swilley Sometimes, They Come Back! How to Navigate the World of Court-Martial Rehearings Major Timothy Thomas The Next Best Thing to Zieuatenajo: A Primer for Defense Counsel to Help Clients Find the Best Place to Live after a Conviction Major Craig Schapira TJAGLCS FEATURES Lore of the Corps Epaulettes and Shoulder Knots for Judge Advocates: A History of Branch Insignia for Army Lawyers in the 19th Century Criminal Law New Developments in Criminal Law: Child Pornography and Appellate Review Decades of Military Failures Against Sex Crimes Earned America’s Distrust and Congressional Imposition: The Judge Advocate General’s Corps’s Newest, Most Important Mission A Reflection Paper by Major Dave C. Lai CLE NEWS CURRENT MATERIALS OF INTEREST Judge Advocate General’s Corps Bulletin 27-50-506 Editor, Captain Michelle E. Borgnino Assistant Editor, Major Elizabeth A. Turner Assistant Editor, Major Laura A. O’Donnell The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly Authors should revise their own writing before submitting it for by The Judge Advocate General’s Legal Center and School, Charlottesville, publication, to ensure both accuracy and readability. The style guidance in Virginia, for the official use of Army lawyers in the performance of their paragraph 1-36 of Army Regulation 25-50, Preparing and Managing legal responsibilities. Correspondence, is extremely helpful. Good writing for The Army Lawyer is concise, organized, and right to the point. It favors short sentences over The opinions expressed by the authors in the articles do not necessarily long and active voice over passive. 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This includes any subset of Army lawyers, from new legal assistance Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension attorneys to staff judge advocates and military judges. The Army Lawyer 3368) or electronic mail to usarmy.pentagon.hqda-tjaglcs.list.tjaglcs-tech- strives to cover topics that come up recurrently and are of interest to the Army [email protected]. JAGC. Prospective authors should search recent issues of The Army Lawyer to see if their topics have been covered recently. Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite]. Lore of the Corps Epaulettes and Shoulder Knots for Judge Advocates: A History of Branch Insignia for Army Lawyers in the 19th Century ............................................................................................................. 1 Articles Review of Developments in Instructions Lieutenant Colonel Deidra J. Fleming and Lieutenant Colonel Tyesha L. Smith ................................ 3 A Whole Other Matter: The New Article 60(d) and Handling Victim Submissions During Clemency Major Angela D. Swilley .................................................................................................................. 16 Sometimes, They Come Back! How to Navigate the World of Court-Martial Rehearings Major Timothy Thomas .................................................................................................................... 34 The Next Best Thing to Zieuatenajo: A Primer for Defense Counsel to Help Clients Find the Best Place to Live after a Conviction Major Craig Schapira ...................................................................................................................... 43 TJAGLCS Features Criminal Law New Developments in Criminal Law: Child Pornography and Appellate Review ........................... 57 Decades of Military Failures Against Sex Crimes Earned America’s Distrust and Congressional Imposition: The Judge Advocate General’s Corps’s Newest, Most Important Mission .............. 60 CLE News ............................................................................................................................................. 66 Current Materials of Interest .............................................................................................................. 72 JULY 2015 • THE ARMY LAWYER • JAG CORPS BULLETIN 27-50-506 Lore of the Corps Epaulettes and Shoulder Knots for Judge Advocates: A History of Branch Insignia for Army Lawyers in the 19th Century Fred L. Borch Regimental Historian & Archivist While Army officers today wear their branch insignia on Holt, who served from 1862 to 1875, never wore a uniform the lapels of their service uniforms, in the 19th century they while on active duty. wore this insignia (along with their insignia of rank) on their “epaulettes” and “shoulder knots.” What follows is a brief Sometime between 1861 and 1865, judge advocates who did history of epaulettes and shoulder knots for judge advocates wear Union uniforms were authorized epaulettes that in the 19th century. distinguished them by the use of the old English letters “JA.”2 The photograph below illustrates epaulettes for a On July 29, 1775, the Continental Congress selected judge advocate captain. These were a graduation gift to the William Tudor as “Judge Advocate of the Army;” slightly Corps from the members of the 62d Graduate Course in more than a year later, the Congress changed Tudor’s title to 2014, and are now on display at The Judge Advocate “Judge Advocate General.” But neither Tudor nor any General’s Legal Center and School. military lawyer who followed him in the late 18th century or early years of the 19th century wore any insignia identifying him as a judge advocate, much less as the Judge Advocate General. In fact, Army Regulations published in 1825 provided that “chaplains, judge advocates, commissaries of purchases and storekeepers have no uniform.”1 This meant, of course, they wore civilian clothes. Epaulettes worn by Bureau of Military Justice captain (Civil War period to 1872). In 1872, the shoulder knot replaced the epaulette on the full dress uniform, and those prescribed for judge advocates had the letters “JA” in Old English characters embroidered on them.3 Brigadier General Joseph Holt, TJAG from 1862 to 1875, never wore a uniform despite his status as the top lawyer in the Army. Not until 1851 did judge advocates have a device that set them apart from other staff officers: a white pompon that they wore on their caps. But the wear of an Army uniform, 2 much less the white pompon, does not seem to have been Other branches also adopted this style of letters to designate their officers. For example, officers in the Inspector General’s Department wore shoulder particularly important: witness the civilian attire of Judge insignia with the letters “ID” and those in the Adjutant General’s Advocate