THE ARMY LAWYER Headquarters, Department of the Army November 2011 ARTICLES Conquering Competency and Other Professional Responsibility Pointers for Appellate Practitioners Major Jay L. Thoman Rule of Law in Iraq and Afghanistan? Mark Martins USALSA REPORT Trial Judiciary Note A View from the Bench: Immunizing Witnesses Colonel R. Peter Masterton TJAGLCS FEATURES Lore of the Corps A “Fragging” in Vietnam: The Story of a Court-Martial for Attempted Murder and Its Aftermath New Developments Administrative & Civil Law The Army Safety Program Major Derek D. Brown BOOK REVIEWS How We Decide Reviewed by Major Keith A. Petty CLE NEWS CURRENT MATERIALS OF INTEREST Department of the Army Pamphlet 27-50-462 Editor, Captain Joseph D. Wilkinson II Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly The Judge Advocate General’s School, U.S. Army. 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The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, Lore of the Corps A “Fragging” in Vietnam: The Story of a Court-Martial for Attempted Murder and Its Aftermath .............. 1 Articles Conquering Competency and Other Professional Responsibility Pointers for Appellate Practitioners Major Jay L. Thoman ............................................................................................................................................................ 4 Rule of Law in Iraq and Afghanistan Mark Martins ........................................................................................................................................................................ 21 USALSA Report U.S. Army Legal Services Agency Trial Judiciary Note A View from the Bench: Immunizing Witnesses Colonel R. Peter Masterton .................................................................................................................................................. 28 TJAGLCS Features New Developments Administrative & Civil Law The Army Safety Program Major Derek D. Brown ......................................................................................................................................................... 32 Book Reviews How We Decide Reviewed by Major Keith A. Petty ....................................................................................................................................... 33 CLE News ................................................................................................................................................................ 37 Current Materials of Interest ............................................................................................................................. 48 Individual Paid Subscriptions to The Army Lawyer ................................................................ Inside Back Cover NOVEMBER 2011 • THE ARMY LAWYER • DA PAM 27-50-462 Lore of the Corps A “Fragging” in Vietnam: The Story of a Court-Martial for Attempted Murder and Its Aftermath Fred L. Borch Regimental Historian & Archivist In a cold killing rage, I went to my hootch and grabbed a grenade, walked back to the bunker the XO was in, pulled the pin on the grenade, threw it into the bunker, closed the bunker door, and started back to the hootch. As I was walking back, I heard the explosion of the grenade.1 Some CID officers interviewed me, asking me why I tried to kill the executive officer. I was really tired of the bullshit, and I told them he was an asshole who deserved to die.2 On 12 January 1973, Staff Sergeant (SSG) Alan G. Cornett pleaded guilty to attempting to murder Lieutenant On 30 November 1972, at about 1545, LTC Bongers Colonel (LTC) Donald F. Bongers, the Executive Officer of entered one of the team’s commo bunkers, where the Advisory Team 40, “by means of throwing an M-26 accused was on radio watch. After watching the accused fragmentation grenade into a bunker which the said open a can of beer, Bongers relieved him for drinking on Lieutenant Colonel Bongers occupied.”3 Cornett also duty, and then told him to leave the commo bunker. pleaded guilty to having .16 grams of heroin in his Lieutenant Colonel Bongers then took over the accused’s possession. The following day, he was sentenced by a panel radio watch duties. of seven officers.4 This is the story of his court-martial and its aftermath. Staff Sergeant Cornett went back to his hootch and began drinking more alcohol. As he told the Criminal The evidence presented at the Article 32 investigation Investigation Division (CID) later that day, he “drank a half and the stipulation of fact introduced at trial revealed that the a case of Budweiser beer, 12 cans, and also had about a pint accused, a Ranger-qualified Special Forces medic who had of rum.” About an hour later, Cornett took an M-26 served six and one-half years in Vietnam, was assigned to fragmentation grenade off his web belt and put it on his Military Assistance Command, Vietnam (MACV) Advisory refrigerator. As Cornett explained to the CID agent: Team 40. This team, located at Duc My, Vietnam, provided support to the Vietnamese Army. I kept looking at it and wondering if it was worth it . I took the tape off from around For several months, SSG Cornett and his victim, LTC the grenade, pulled the safety pin, walked Bongers, had not been getting along. Cornett believed that over to the commo bunker, stood there for Bongers was harassing him because the accused was married about fifteen minutes deciding if I should to a Vietnamese woman. The senior advisor in Team 40, kill him or just throw a scare into him. I Colonel (COL) Gilligan, who was Bongers’ boss, had told decided not to kill him, but to scare him. I other Soldiers that he did not like “mixed marriages” and threw the grenade down the steps of the would not approve a Soldier’s request to marry a bunker . I stayed there until the smoke Vietnamese national. Bongers also had stated publicly that cleared.6 it was “morally wrong” for Americans to associate with Vietnamese women, and had called the accused’s wife a Lieutenant Colonel Bongers was a lucky man that day. “prostitute.”5 Not content to simply voice their views, He saw the grenade roll into the commo bunker toward his Gilligan and Bongers had prohibited the accused from chair, “got up and ran up the stairs and as he reached the bringing his wife onto the Team 40 compound. This was second step the grenade exploded.”7 Fortunately for embarrassing to the accused and put considerable strain on Bongers, he was not injured in the blast. his marriage. As for SSG Cornett, he initially feigned ignorance about 1 ALAN G. CORNETT, GONE NATIVE: AN NCO’S STORY 266 (2000). who had thrown the grenade but, when another Soldier told 2 Id. at 277. him that Bongers had accused him of trying to ‘frag’ him, the accused ran out of the orderly room and returned with his 3 Record of Trial, United States v. Cornett. No. CM429339, Charge Sheet