Headquarters, Demrtment of the Armv A d Department of the Army Pamphlet 27-50-276 November 1995 Table of Contents I Articles Tips and Observations from the Trial Bench: The Sequel ..................................................................................................................................................... 3 Colonel Gary 1. Holland Summary Judgment Motions in Discrimination Litigation: A Useful Tool or a Waste of Good Trees? .............................................................................. 12 Major James E. Macklin A Military Look into Space: The Ultimate High Ground ...................................................................................................................................................... 19 Major Dough S. Anderson USALSA Report ...... ............................................................................................................................................... ............ 29 United States Army &gal Services Agency Clerk of Court Notes ............................................................................................................................................................................................ 29 Courts-Martial Processing Times and Nonjudicial Punishment Rates Litigation Division Notes ................................................ ............................................. .................................................. -. 30 E Pluribus Unum-Maybe: The Ninth and Tenth Circuits Conflict on Bankruptcy Setoff Rights Involving More Agency Environmental Law Division Notes ......................... ........................................................................................................... 31 Recent Environmental Law Developments TJAGSA Practice Notes .................................................................................... ................................................... 34 Faculry. The Judge Advocate General's School , Contract Law Notes .......................................................................................................... .......d ...................................... ............................................ 34 New Simplified Acquisition Rule Issued Administrative and Civil Law Notes ............................................... ........... ........ ........................... 36 Military Personnel Law Note (Elimination of the Military Personnel Records Jacket); Labor and Employment Law Note (When Is Information "Necessary" for a Union? New Guidance from the Federal Labor Relations Authority) Legal Assistance Items .................................................................................................. ...................................................................... 40 Tax Notes (Update for 1995 Federal Income Tax Returns) International and Operational Law Notes ............. ................................. ........................................................................................................ 46 *I' International Law Note (International Criminal Tribunal for the Former Yugoslavia) Claims Report ........................ ............................................................................................................................................................................ 53 United States Army Claims Service Personnel Claims Note (Recent Comptroller General Decisions; Liability for Overseas Shipments; Unearned Freight Packets-- Revisited); Tort Claims Note (Law of Damages Applicable to the Military Claims Act Outside the United States) Guard and Reserve Affairs Items ........................................................................................................................................................................... 57 ,Guard and Reserve Aflairs Division, OTJAG t ' The Judge Advocate General's ContinuingLegal Education OnSite Schedule; The Judge Advocate General's School Continuing Legal Education On-Site Training, AY 96 CLE News .............................................................................................................................................................. 59 Current Material of Interest ..................................................................................................................................................................................... 63 Statement of Ownership, Management, and Circulation ........................................................................................................................... 72 The Army Lawyer (ISSN 0364-1287) Editor, Captain John E. Wells Editorial Assistant, Charles J. Strong The Army Lawyer is published monthly by The Judge Advocate The Army Lawyer articles are indexed in the Index to Legal General's School for the official use of Army lawyers in the performance Periodicals, the Current Law Index, the Legal Resources Index. and the of their legal responsibilities. The opinions expressed by the authors in Index to U.S.Government Periodicals. the articles, however, do not necessarily reflect the view of The Judge Advocate General or the Department of the Army. Masculine or Individual paid subscriptions are available through the Superintendent feminine pronouns appearing in this pamphlet refer to both genders of Documents, P.O. Box 37 1954. Pittsburgh, Pennsylvania 15250, unless the context indicates another use. facsimile (202) 512-2233. The Army Lawyer welcomes articles on topics of interest to military Address changes: Provide changes to the Editor, The Army Lawyer, lawyers. Articles should be typed double-spaced and submitted to: TJAGSA. Charlottesville. VA 22903-1781. Editor, The Army Lawyer, The Judge Advocate General's School, U.S. Army, Charlottesville. Virginia 22903- 1781. Footnotes, if included, 7 Issues may be cited as ARMYLAW., [date], at [page number]. should be typed double-spaced on a separate sheet. Articles also should I be submitted on floppy disks, and should be in either Microsoft Word, WordPerfect. Enable, Multimate, DCA RFT, or ASCII formal. Articles Second-class postage paid at Charlottesville, VA and additional should follow A Uniform System ofCitation (15th ed. 1991) and Military mailing offices. POSTMASTER: Send address changes to The Judge Citation (TJAGSA, July 1992). Manuscripts will be returned only upon Advocate General's School, U.S. Army, Attn: JAGS-DDL, specific request. No compensation can be paid for articles. Charlottesville, VA 22903-1781. L Tips and Observations from the Ilia1 Bench: The Sequel’ Colonel Gary J. Holland L Circuit Judge, Second Judicial Circuit United Stares Army Trial Judiciaty Fort Stewart, Georgia 1 Overview criminal investigators to their advantage in attempting to estab- lish reasonable doubt. However, defense counsel must be careful As time passes, counsel gain experience in courts-marti81pro- not to antagonize law enforcement agents outside the courtroom. cedure and advocacy. With the continual introduction of new If the working relationship between defense counsel and law en- counsel, however, the trial bench often sees repeated blunders, forcement agents is hostile, defense counsel often will have diffi- albeit by different counsel. Before becoming a judge advocate, a culty in achieving desired investigative assistance from agents. commander instructed a newly commissioned second lieutenant To foster cooperation with law enforcement agents, defense coun- (the author) that he expected mistakes to occur, but he also sug- sel must have law enforcement agents understand that lawyers’ gested that only a fool or an idiot makes the same mistake twice. actions are taken to fulfill their professional responsibilities and His point was that people need to learn from their mistakes. In a do not represent a personal attack on, or affront to, the agents. continuing effort to assist both trial and defense counsel, this ar- ticle offers suggestions and highlights some mistakes committed One miqtake by law enforcement personnel, especially by drug by counsel during courts-martial.* Ihope that this article not only suppression teams, often leads to potentially unjustified acquit- will help counsel refrain from making the mistakes, but also will tals. The mistake is the failure to have an undercover agent present provide opposing counsel with issues and insights for which they when a confidential registered source initially approaches a should be alert. target individual as a source of illegal drugs. Law enforcement officials seem content to allow the registered source to make ar- Law Enforcement Coordination rangements with the suspect. Law enforcement officials then become involved only when the registered source consummates Trial and defense counsel must strive to develop a working the drug transaction. Even then, law enforcement officials some- relationship with the local military law enforcement agencies. times do not actually observe the drug transaction. They only While law enforcement agencies usually provide the cases that know the source went into a house and came out with drugs. This result in courts-martial, the trial counsel, who desires a smooth scenario invites defense allegations of entrapment and raises un- prosecution, must ensure law enforcement officials fully investi- necessary credibility concerns about the registered source. With- gate these cases. The investigation must focus on developing out a law enforcement agent present at the initial meeting with facts and not mereIy on perfecting a case against a suspect. Mili-