Judge Advocates in

Vietnam: Army Lawyers

in Southeast Asia

1959-1975

by

Frederic L. Borch III

U.S. Army Command and General Staff College Press

Fort Leavenworth, Kansas 66027-6900

U.S. Army Command and General Staff College Press

Fort Leavenworth, Kansas 66027-6900

Judge Advocates in

Vietnam: Army Lawyers

in Southeast Asia

1959-1975

by

Frederic L. Borch III
Library of Congress Cataloging-in-Publication Data

Borch, Frederic L., 1954-

Judge advocates in Vietnam : army lawyers in Southeast Asia, 1959-1975

/ by Frederic L. Borch III.

p. cm.

1. United States. Army--Lawyers--History--20th century. 2. Judge

advocates--United States--History--20th century. 3. Vietnamese

Conflict, 1961-1975--United States, I. Title.

KF299.J8B67 2003

343.73'01'0959709045--dc22

2003015393

A full list of CSI\CGSC Press publications, many of them available for

downloading, can be found at: http://www.cgsc.army.mil/csi

CGSC Press publications cover a variety of military history topics. The

views expressed in this CGSC Press publication are those of the authors

and not necessarily those of the Department of the Army or the

Department of Defense.
Contents

Foreword .............................................................................................v

Introduction.......................................................................................vii

Chapter 1. Vietnam: Judge Advocates in the Early Years, 1959-1965..1

Background ........................................................................1

Judge Advocate Operations at the MAAG, Vietnam........2

Legal Advice to the MAAG .............................................5

“Advising” the Vietnamese ...........................................10

Lawyering at the MACV and Army Support Group,

Vietnam ............................................................................13

Expanded Legal Services...............................................15

New Issues ....................................................................18

Army Lawyers on the Eve of the Intervention....................22

Chapter 2.Vietnam: Military Law During the Offensive, 1965-1969...27

Background ......................................................................27

Lawyering at MACV.........................................................30

Legal Policy Issues ........................................................32

MACV Advisory Program.............................................41

Lawyering at USARV .......................................................45

Organization of Legal Services at USARV ....................46

Military Justice..............................................................49

Civil Law and Claims ....................................................56

Lawyering in the Field.......................................................59

173d Airborne Brigade ..................................................60

II Field Force .................................................................62

101st Airborne Division (Airmobile).............................65

1st Logistical Command................................................68

US Army Trial Judiciary, Vietnam ................................70

Summing Up.....................................................................73

Chapter 3. Vietnam: Lawyering in the Final Years, 1970-1975 .........81

Background ......................................................................81

Lawyering at MACV.........................................................82

MACV Advisory Division.............................................83

iii
Judge Advocate Operations at USARV.............................85

Military Justice..............................................................85

Claims ...........................................................................90

Military Affairs .............................................................94

Lawyering in the Field.......................................................96

1st Cavalry Division ......................................................96

25th Infantry Division .................................................100

101st Airborne Division ..............................................102

The Last Army Lawyers: USARV/MACV .....................103

Military Justice............................................................104

Administrative Law, Legal Assistance,

International Law, and Claims.....................................106

Four-Party Joint Military Commission ........................107

Four-Party Joint Military Team ...................................110

Summing Up ...............................................................112

Conclusion.......................................................................................117

Bibliography....................................................................................122

Biographical Notes on Army Lawyers .............................................135

Index................................................................................................149

About the Author .............................................................................161

iv
Foreword

Although the first American soldiers arrived in Saigon in late 1950, the

first Army judge advocate did not deploy to Vietnam until 1959, when Lt.

Col. Paul J. Durbin reported for duty. From then until 1975 when Saigon fell

and the last few U.S. military personnel left Vietnam, Army lawyers played

a significant role in what is still America’s “longest war.”

Judge Advocates in Vietnam: Army Lawyers in Southeast Asia

(1959-1975)tells the story of these soldier-lawyers in headquarters units like

the Saigon-based Military Assistance Advisory Group and Military

Assistance Command, Vietnam (MACV). But it also examines the

individual experiences of judge advocates in combat organizations like II

Field Force, 1stAir Cavalry Division, and the 25th Infantry Division. Almost

without exception, Army lawyers recognized that the unconventional nature

of guerrilla warfare required them to practice law in new and non-traditional

ways. Consequently, many judge advocates serving in Vietnam between

1959 and 1975 looked for new ways to use their talent and abilitiesboth

legal and non-legalto enhance mission success. While this was not what

judge advocates today refer to as “operational law”that compendium of

domestic, foreign, and international law applicable to U.S. forces engaged in

combat or operations other than warthe efforts of these Vietnam-era

lawyers were a major force in shaping today’s view that judge advocates are

most effective if they are integrated into Army operations at all levels.

Judge Advocates in Vietnam is not the first book about lawyering in

Southeast Asia. On the contrary, Maj. Gen. George S. Prugh’s Law at War,

published in 1975, was the first look at what judge advocates did in Vietnam.

General Prugh’s monograph, however, focuses exclusively on legal work

done at MACV. Similarly, Col. Fred Borch’s Judge Advocates in Combat:

Army Lawyers in Military Operations from Vietnam to Haiti has a chapter

on law in Southeast Asia, but it is a very brief look at military lawyering in

Vietnam. It follows that this new Combat Studies Institute publication is

long overdue. Its comprehensive examination of judge advocates in

Vietnamwho was there, what they did, and how they did itfills a void in

the history of the Army and the Judge Advocate General’s Corps. At the

same time, anyone who takes the time to read these pages will come away

with a greater appreciation of what it was like to serve as a soldierand an

Army lawyerin Vietnam.

Thomas J. Romig

Major General, U.S. Army

The Judge Advocate General

v

Introduction

This is a narrative history of Army lawyers in Vietnam from

1959when the first judge advocate reported for duty in Vietnamto

1975when the last Army lawyer left Saigon.

Its principal theme is that, as the Army developed new strategies and

tactics to combat the guerilla war waged by the Viet Cong and North

Vietnamese, Army judge advocates also discovered that the

unconventional nature of the war required them to find new ways of

using the law, and their skills as lawyers, to enhance mission success.

When people read about those who served as soldier-lawyers in

Southeast Asia from 1959 to 1975, they want answers to at least three

questions: Who was there? What did they do? How did that enhance the

commanders’ ability to accomplish the assigned mission?

In answering the first two questions, Judge Advocates in Vietnam

identifies the men and women who deployed to Southeast Asia; it looks

at selected courts-martial, military personnel and foreign claims, legal

assistance, administrative and contract law issues, and international

law matters handled by those judge advocates. Examining who was

there and what they did is important because it captures for posterity the

contribution of judge advocates of an earlier era. Viewed from this

perspective, Judge Advocates in Vietnam is a contemporary branch

history. However, in light of its principal theme, Judge Advocates in

Vietnam answers the third question by focusing on those events where

Army lawyers used the law and lawyering in non-traditional ways.

As in World War II and the Korean War, the mainstay of lawyering

for Vietnam-era members of the Judge Advocate General’s Corps

continued to be military justice, legal assistance, claims, and

administrative, civil and international law. While judge advocates in

previous armed conflicts had practiced law away from the battlefield,

Vietnam required Army lawyers to take their practice from the “rear” to

the “front,” going to those areas where American soldiers were in

imminent contact with the enemy. To some extent, the guerilla tactics

used by the Viet Cong meant that the “battlefield” was everywhere, but

the increased operational tempo of the U.S. Army also meant that

effective lawyering could not be done too far from the frontlines. For

example, the airmobility of the 1st Cavalry Division caused its judge

advocates to conduct legal operations in new ways. With about 450

helicopters, the division was not dependent upon ground transportation

for movement, either tactically or administratively. This meant that 1st

vii
Cavalry had a very large area of operations and that its firebases were

located a great distances from its headquarters. In 1970, with all

lawyers located at the division main headquarters at Phuoc Vin,

activities such as interviewing witnesses for trial, advising convening

authorities located outside of Phuoc Vin and, in some instances,

actively conducting courts-martial at firebases, required travelling by

air. Additionally, troops normally did not come into headquarters for

personal legal assistance or to file claims; judge advocates took legal

services to them. Even Lt. Col. Ronald M. Holdaway, the division Staff

Judge Advocate, was routinely airborne as he left the rear and flew to

base camps and firebases to confer with and advise commanders. As a

principal staff officer, Holdaway was normally able to obtain a

helicopter for all of his missions. Thanks to the division chief of staff,

Col. (later General) Edward C. Meyer, lawyers who worked for

Holdaway obtained helicopter support for most of their legal work, too.

While Colonel Holdaway and his judge advocates proved that Army

lawyers couldand didtake their legal operations to the field,

members of the Corps also used the law and their training as attorneys

to blaze new paths, enhancing mission success in nontraditional ways.

Lawyers who took on nontraditional roles did so on an individual basis;

there was no institutional recognition that such matters were

appropriate issues for judge advocates. In 1960, for example, during a

coup d’etat led by disaffected South Vietnamese paratroopers, Army

judge advocate Lt. Col. Paul J. Durbin left the safety of his home to

observe the rebels in action. As a result, Durbin was able to see—and

explain—to an American adviser accompanying the coup leader that

“advising” this Vietnamese paratroop colonel did not include

participating in a rebellion against the Saigon government. Lt. Col.

George C. Eblen, who followed Durbin as the lone Army judge

advocate in Vietnam, decided to begin monitoring war crimes

committed by the Viet Cong against Americans. Eblen’s decision to

tape record all interviews of U.S. personnel claiming mistreatment

resulted in a command policy that a military lawyer participate in all

future debriefings involving war crimes. Again, like Durbin, Colonel

Eblen stepped outside his traditional role.

Similarly, Col. (later Maj. Gen.) George S. Prugh, staff judge

advocate for the Military Assistance Command, Vietnam (MACV)

from 1964 to 1966, spearheaded a number of unique efforts: creating

the U.S.-Vietnamese Law Society and arranging for Vietnamese

lawyers to study in the United States, compiling and translating all

existing Vietnamese laws and establishing a legal advisory program

viii
that monitored the real-world operation of South Vietnam’s criminal

justice system.

Of particular significance was Colonel Prugh’s successful effort in

persuading the South Vietnamese military that its conflict with the Viet

Cong and North Vietnamese was no longer an internal civil disorder.

This was a significant achievement in that once its military leaders had

accepted the international nature of the conflict, the South Vietnamese

government also acceded to this view and agreed that the provisions of

the 1949 Geneva Convention on Prisoners of War would be applied.

Persuading the South Vietnamese armed forces to change their

position concerning the conflict and therefore their view of the status

and treatment of Viet Cong and North Vietnamese prisoners was not a

judge advocate responsibility, and Colonel Prugh had not been tasked

with resolving this matter. Recognizing, however, that the increasing

number of Americans captured by the Viet Cong and North Vietnamese

would have significantly enhanced chances to survive if South Vietnam

applied the Geneva Prisoners of War Convention to enemy soldiers in

its custody, Prugh and his staff spearheaded the efforts to bring about

this change.

After Prugh’s departure from Vietnam, his successor Col. Edward

W. Haughney continued using the law to support the mission in related

ways. Thus, while the MACV provost marshal was primarily

responsible for advising the Vietnamese on prisoner of war issues,

Haughney and his staff promulgated the first procedural framework for

classifying combat captives, using so-called Article 5 tribunals. They

also took the initiative in establishing a records system identifying and

listing all prisoners of war.

The individual initiatives of Colonels Durbin, Eblen, Prugh, and

Haughney illustrated how judge advocates could provide support on a

broad range of legal and nonlegal issues associated with operations at

the Military Assistance Advisory Group and the Military Assistance

Command, Vietnam. Their efforts also demonstrated that Army

lawyers could properly focus on more than the traditional peacetime

issues of military justice, claims, administrative law, and legal

assistance.

The story of judge advocates in Vietnam is a rich and varied one, and

demonstrates that Army lawyers were adept at handling more than

traditional legal missions, and could enhance the success of military

operations in a variety of non-traditional ways. This book offers some

interpretations about the role played by Army lawyers in Southeast

ix
Asia. Ultimately, however, conclusions about the impact of judge

advocates on the Army’s Vietnam experience are best left to each

reader.

Fred L. Borch

Colonel, Judge Advocate General’s Corps

August 2003

The Pentagon, Washington, D.C.

x
Chapter 1

Vietnam: Judge Advocates in the Early

Years 1959–1965

“Will you go to Vietnam?” I was asked in late 1958.

I said: “Where is that? And what will I do?”1

—Col. Paul J. Durbin

First judge advocate in Vietnam

Background

American involvement in Vietnam began at the end of World War

II. Believing that Ho Chi Minh and the Viet Minh would set up a

Communist state if the French were ousted from Indochina, the United

States went to the active aid of the French. For the next thirty years,

Vietnam was the centerpiece of U.S. containment policy in Southeast

Asia and the battleground for America’s longest war. Before American

involvement ended in 1975, some 3.5 million members of the Army,

Navy, Air Force, Marine Corps, and Coast Guard would serve in

Vietnam and roughly 58,000 would lose their lives there.

The U.S. Army’s presence in Vietnam began in August 1950, when

President Harry S. Truman established the U.S. Military Assistance

Advisory Group (MAAG), Indochina. Initially, the advisory group

funneled American equipment to the French and advised only on the

use of that materiel. With the departure of the French and the creation of

the Republic of Vietnam in 1955, however, American soldiers assigned

to the renamed Military Assistance Advisory Group, Vietnam, began

advising South Vietnamese Army units on tactics, training, and

logistics—any matter that would improve combat effectiveness.

By mid-1960 the advisory group numbered nearly 700 U.S. Army,

Navy, Air Force, and Marine Corps personnel, all of whom advised

their counterparts in the roughly 150,000-man Republic of Vietnam

Armed Forces. The Army of the Republic of Vietnam, with a strength

of about 140,000, made up the bulk of the South Vietnamese military;

U.S. Army personnel were the largest advisory component, and the

chief of the MAAG was a senior Army general officer.

The task of the South Vietnamese Army was to maintain “internal

security” and resist “external attack.”2 This meant combating the

growing Communist-led guerrilla insurgency, or Viet Cong, and

1
delaying any North Vietnamese invasion until the arrival of American

reinforcements. Consequently, advisers reorganized the South

Vietnamese Army into standard infantry divisions, compatible in

design with this two-part military mission. In time, the advisers busied

themselves with every aspect of the South Vietnamese Army, from

administrative procedures, personnel management, logistics, and

intelligence to unit training, mobilization, war planning, and

leadership.3

After President John F. Kennedy took office in January 1961, the

United States took an increasingly aggressive role in South Vietnam.

Kennedy sent U.S. Army Special Forces teams and helicopters to

Vietnam. Advisers, who previously had been placed at the division

level, were now permanently assigned to infantry battalions and certain

lower echelon combat units.4 In February 1962, the Joint Chiefs of

Staff created the United States Military Assistance Command, Vietnam

(MACV), as the senior American military headquarters in Vietnam.

U.S. forces had increased to 11,000 men, and the MACV commander, a

four-star Army general, worked diligently to combat the growing

strength of the guerrillas who, aided by the North Vietnamese, were

everywhere undermining the government of President Ngo Dinh Diem.

Although the advisory group was not formally dissolved until May

1964, the Saigon-based MACV now directed the ever-expanding

American involvement in that country.

Judge Advocate Operations at the Military Assistance

Advisory Group, Vietnam

The mission of the staff judge advocate in the MAAG was to render

legal aid and advice to the members of the advisory element and to act

as legal adviser to the Director of Military Justice, the Judge Advocate

General equivalent in the South Vietnamese armed forces.5 In regards

to advising the Vietnamese, the American view was that the legal

adviser’s chief duty was to evaluate the effectiveness of the Vietnamese

military justice system and to transform it from a French-based paper

structure to a workable U.S.-style system akin to the Uniform Code of

Military Justice.6 Finally, as the U.S. embassy in Saigon did not have a

lawyer among its personnel, the MAAG staff judge advocate provided

legal advice to the ambassador and his staff.

Lt. Col. Paul J. Durbin was the first military lawyer assigned for duty

in Vietnam. He was an ideal choice for a legal adviser. As a former

infantry officer with World War II combat experience, Durbin had an

2
immediate rapport with the two MAAG commanders for whom he

worked from 1959 to 1961, Army Lt. Gen. Samuel T. Williams and

Army Lt. Gen. Lionel C. McGarr. Durbin also was a seasoned military

lawyer. After becoming a judge advocate in 1948, he had served as a

lawyer in Japan and in Korea, having gone ashore as a judge advocate in

the amphibious landing at Inchon in 1950. Durbin had also been the

staff judge advocate for the 7th Infantry Division, 1st and 4th Armored

Divisions, and 82d and 101st Airborne Divisions. No military lawyer

had more experience with troops than Durbin, and this, combined with

his judge advocate background, meant he was well prepared to be the

first military lawyer in Vietnam.7

After attending a four-week orientation course for MAAG personnel

in Washington, D.C., Lt. Col. Durbin took a Pan American flight to

Vietnam in June 1959. Almost all the 700 or so members of the advisory

group lived in hotels during their year-long assignment. Durbin,

however, was one of the approximately forty members of the element

on an accompanied two-year tour, so his wife, daughter, and son arrived

in country about six weeks later. The Durbins lived in a house in

Saigon, where life generally was good and relatively safe.

Lt. Col. Durbin was a one-man

legal operation. Other than a part-time

Vietnamese secretary assisting with

typing, he had no staff. He was on his

own in Vietnam.8 Moreover, Durbin

got little guidance from the Judge

Advocate General’s Office, or

“JAGO” as it was known. This was not

only because communication was

difficult (it was not possible to pick up

the telephone and place a call to

Washington, D.C.), but also because

judge advocates in those days were not

accustomed to ask for technical

assistance from the Pentagon, much

less coordinate with it on a routine

basis. Nevertheless, Durbin did have

visitors from Washington at least once

a year by virtue of Article 6, Uniform

Code of Military Justice, which

required frequent inspections of staff

3

Lt. Col. Paul J. Durbin, shown here

as a colonel, was the first military

lawyer in Vietnam. Durbin served

as the MAAG staff judge advocate

from June 1959 to July 1961. He

returned to Vietnam for a second

time in 1966, when he served first as

II Field Force staff judge advocate

and then as a military judge with the

Army Trial Judiciary.
judge advocate operations in the field by the Judge Advocate General or

senior members of his staff.

Lt. Col. Durbin served in Vietnam until August 1961. He was

replaced by Lt. Col. George C. Eblen, who arrived that same month.

Born in France of an American father and a French mother, Eblen spoke

fluent French, and so was well-suited to liaison with Vietnamese

government officials, many of whom were French-educated and spoke

better French than English. Complementing his language skills was his

superb background as an officer and attorney. A former World War II

infantry officer who fought with the 12th Armored Division in France

and Germany, Eblen left active duty at the end of the war and finished

law school in 1949. He then requested a return to active duty with the

Judge Advocate General’s Department. After some training at the

Pentagon, Eblen served overseas in both France and Germany. He

subsequently served at Fort Knox, Kentucky, and in the Pentagon. In

short, Eblen arrived in Vietnam a well-rounded and experienced Army

lawyer.

Like Durbin, Eblen found

that he was a one-man legal

operation. The creation of the

MACV and the increasing

number of Army, Navy, Air

Force, and Marine Corps

personnel meant more lawyers

were needed. Consequently,

about six months into his tour

Lt. Col. Eblen was joined by

an Air Force lawyer and a

Navy lawyer. This assignment

of two non-Army “deputies”

at the MAAG staff judge

advocate office continued

after Eblen returned to the

United States in late July

1962.9 Additionally, his staff

increased to include two Army

judge advocates, 1st Lt. Thomas C. Graves, who arrived in February

1962, and Maj. Madison C. Wright, who arrived the next month. Eblen

also obtained two legal clerks and a Vietnamese interpreter-secretary.

4

Col. Paul J. Durbin and the author, Honolulu,

Hawaii, December 2001. After retiring in

1968, Durbin opened up a solo law practice

and, although now in his mid-80s, he still

appears on behalf of clients in Hawaii Family

Court.
Legal Advice to the Military Assistance Advisory Group

In addition to being the adviser to the Directorate of Military Justice,

Lt. Col. Durbin and the Army lawyers who followed him provided a full

range of legal services to members of the advisory component, such as

wills, powers of attorney, tax assistance, and advice on domestic

relations, civil suits, and filing claims for damaged property.

Durbin and the early judge advocates also provided command

advice, particularly in the area of discipline. Criminal jurisdiction over

MAAG personnel was exclusively under the Uniform Code of Military

Justice; the government of South Vietnam had neither criminal nor civil

jurisdiction over those assigned to the advisory group. This unusual

situation resulted from the Agreement for Mutual Defense Assistance

in Indochina, commonly known as the Pentalateral Agreement.

Negotiated in December 1950 by the United States, France, Laos,

Vietnam, and Cambodia, this international agreement provided

MAAG officers with diplomatic status, which carried with it complete

criminal and civil immunity from Vietnamese law. Enlisted soldiers

enjoyed diplomatic status equivalent to that of clerical personnel

assigned to the U.S. embassy. As the Pentalateral Agreement did not

describe the difference between these two types of diplomatic status,

however, the practical effect was that MAAG enlisted personnel also

enjoyed complete immunity from Vietnamese law. The Pentalateral

Agreement also exempted all goods imported into Vietnam for use by

the advisory group from Vietnamese customs and taxes. This special

treatment reflected a belief that there would be only a small U.S.

presence in Vietnam after 1950. As the American buildup began in the

early 1960s, however, the United States and the Republic of Vietnam

chose not to negotiate a status of forces agreement like those in force in

Japan, Korea, and the Philippines. Consequently, all U.S. forces

remained immune from Vietnamese criminal and civil law until the end

of the war in 1975.

Despite this diplomatic status, MAAG regulations required U.S.

personnel to respect Vietnamese law. Both governments were

particularly concerned that the economy of South Vietnam not be

disrupted by currency manipulation. Some Americans, however, could

not resist the lure of illegally changing money for profit. In August

1960, for example, Lt. Col. Durbin reviewed an investigation of a

soldier who exchanged U.S. dollars for Vietnamese piasters outside of

the official banking system.10 Although no adverse action was taken in

that case, those caught illegally exchanging piasters for dollars were

5
either administratively disciplined or given nonjudicial punishment

under Article 15 of the Uniform Code or both.

The other area of criminal activity requiring judge advocate

involvement was black-marketing in U.S. goods. American-made

alcohol, cigarettes, and candy, for example, were very expensive in

Vietnam; their tax-free purchase by MAAG troops for resale to

Vietnamese nationals was thus illegal under Vietnamese law and an

abuse of the diplomatic privileges granted U.S. personnel under the

Pentalateral Agreement. As a result, Lt. Col. Durbin assisted in drafting

a general regulation forbidding such transactions, although given the

small size of the advisory group, black-marketing in U.S. goods was not

a significant problem.11

No courts-martial were convened at the MAAG prior to Lt. Col.

Durbin’s arrival or during his tenure as staff judge advocate. The small

size of the advisory element and the quality of people assigned to it

meant that there was little crime that could not be handled under Article

15 of the Uniform Code. In these cases, Durbin advised the command

and also informed the accused of his rights and options in nonjudicial

proceedings.

Lt. Col. Durbin set up a claims office for Vietnamese whose property

was damaged by MAAG members, mostly in traffic accidents

involving military vehicles. He discovered, however, that the concept

of filing a claim against the government was completely foreign to the

Vietnamese; they did not make claims against their own government

and so did not readily pursue claims for damages against the United

States. Additionally, Durbin “found out that the fellow I’d set up in the

claims office was operating on his own—he was bringing claimants in

to file false claims in return for money.” Durbin told this employee that

his services were no longer required.12

A few months after settling his family in Saigon, Durbin found

himself in the midst of an attempted coup d’etat against the Diem

government. At 0300 on 11 November 1960, three battalions of South

Vietnamese paratroopers surrounded the presidential palace. While

President Diem took refuge in the palace wine cellar, the rebels

demanded certain reforms, including “free elections, freedom of the

press, and a more effective campaign against the Viet Cong.”13

Significantly, the MAAG chief, Lt. Gen. McGarr, and U.S.

Ambassador Elbridge Durbrow attempted to remain

neutral—indicating U.S. support for the rebels’ demands for some

social and political reform.

6
That morning, 11 November, Durbin awoke in the dark to the sound

of automatic weapons fire. A radio station was just down the street from

his quarters, and he assumed that the gunfire was the result of the rebels

attempting a takeover of that station. Using the MAAG telephone

system, a line of which was connected directly to his home, Lt. Col.

Durbin contacted the advisory group. He learned that a coup was in

progress and that he should stay put. When the firing stopped that

afternoon, however, Durbin ventured out. His first choice was to drive

his automobile to the MAAG compound some seven miles away but, as

he was unarmed, Durbin thought he might be safer on foot.

Consequently, he left his car in his driveway and started walking

toward the presidential palace. Durbin saw a jeep go by him with a

paratrooper colonel, one of the coup leaders. Durbin was shocked to see

an American Army captain seated next to the rebel colonel. Durbin

flagged down the jeep and asked the American officer what he was

doing. When the captain replied that he was with the Vietnamese

colonel because he was his adviser, Durbin asked rhetorically if “he

was advising on the coup.” Durbin then told the American officer to get

out of the jeep and disappear.14

Although the attempted coup lasted a mere three days, the event

made Lt. Col. Durbin think about legal issues that he had not anticipated

when arriving in Vietnam the year before. As another coup attempt

seemed likely, Durbin wanted to inform himself of the status of the

advisory group and its members and the role that they should assume in

the event of another coup. On 28 June 1961, after consulting with the

International Law Division at the Judge Advocate General’s Office in

Washington and the U.S. embassy in Saigon, Durbin produced written

guidance for MAAG personnel in the “event of a breakdown of internal

law and order within South Vietnam,” which was placed in a legal

annex to MAAG Vietnam Operations Plan 61–61.15

Durbin’s annex asked and answered four related questions: To what

extent could MAAG advisers act in defense of their billets and property

in a future coup? Suppose those forcing entry into those billets were

loyal South Vietnamese troops seeking a “tactical advantage” for

employing weapons? Or rebels looking for a better fighting position?

Durbin’s answer was that, as the Pentalateral Agreement gave

diplomatic status to all MAAG personnel, their billets “should be

considered immune from entry except with the consent of the Chief of

the U.S. Diplomatic Mission.” Consequently, MAAG personnel

“would be legally justified” in using all force necessary to prevent such

entry. Durbin cautioned, however, that whether using such force was

7
“politically or personally wise” depended on the circumstances

surrounding the event. He also advised that the diplomatic status of

MAAG members meant that their billets and property should be

considered “extensions of the Embassy,” so that all requests for

evacuation should be refused unless considered necessary for

“self-preservation.”16

The second point raised in the annex was whether MAAG billets or

buildings could be used to give shelter or asylum to important civilian

and military leaders during an “internal disorder.” Lt. Col. Durbin

wrote that in the context of a future coup d’etat, “foreign diplomats have

no right under customary international law to grant asylum to any

individual who takes refuge on Embassy property.” Consequently,

MAAG personnel lacked the authority to grant asylum to Vietnamese

military and civilian officials. That said, however, Durbin advised that

“temporary asylum” could be given “against the violent and disorderly

action of irresponsible sections of the population” and that MAAG

members could grant such temporary asylum for “compelling

considerations of humanity.” Durbin cautioned, however, that the right

to such asylum would end when the disorder ceased.17

A third issue was whether MAAG personnel had the authority to

restrain the South Vietnamese military detachment guarding the

MAAG compound from attacking any rebel force that might pass by,

particularly as such an attack by loyal forces might invite a rebel attack

on the advisory group. Durbin answered that the advisory group had no

authority over the detachment and could only “inform or remind the

guard detachment of its duties toward Embassy personnel and

property.” Presumably such a reminder might dissuade the guards from

attacking rebel forces.18

Finally, Lt. Col. Durbin addressed the legality of a Vietnamese

search of official U.S. aircraft for rebels fleeing the country in the

aftermath of an internal disorder. If such a search was a violation of

international law, should it be resisted by U.S. personnel? Durbin wrote

that the search would be unlawful, and that military aircraft enjoy, in

principle, the same inviolability that foreign warships and embassy

property enjoy under customary international law. As a result, local

authorities could not “forcibly” remove any refugee, “even one who has

committed a crime.” That said, Durbin advised that there was authority

for the view that “fugitive criminals” might be seized on grounds of

“self-preservation.”19

Lt. Col. Eblen and his legal staff, like Lt. Col. Durbin before them,

provided legal assistance and claims advice to MAAG members. They

8
also began investigating alleged violations of the Law of War. Some

Special Forces advisers captured by the Viet Cong had escaped. Eblen

interviewed them and tape recorded their allegations of mistreatment

while in captivity. This judge advocate involvement resulted in a

MAAG policy requiring that a military lawyer participate in any future

interviews or debriefings involving alleged war crimes. By mid-1962,

reports of war crimes committed by the guerrillas increased to such a

level that Eblen tasked his Air Force judge advocate, Maj. Lucian M.

Ferguson, with creating case files indexing allegations of mistreatment

by subject matter and the identity of the perpetrator.20 Eblen’s interest

in monitoring war crimes later became the basis for a MACV directive

requiring the reporting and investigation of all such incidents.

In the area of military justice, Lt. Col. Eblen decided in early 1962

that the advisory group’s increased size, and the related increase in

criminal misconduct, made it desirable to convene summary and

special courts-martial in Vietnam. Under the 1951 Manual for

Courts-Martial then in effect, military lawyers had little involvement in

these courts, providing only guidance to the line officers serving as

prosecutors and defense counsel and reviewing completed summary

and special courts for legal correctness. Undeterred, Eblen discussed

the issue with his South Vietnamese counterpart, Col. Nguyen Van

Mau, the Director of Military Justice. Eblen told him that the U.S.

forces in Vietnam had certain “discipline problems” requiring “action.”

Col. Mau responded that as the Pentalateral Agreement did not prohibit

the convening of courts-martial, he would not object, although he

cautioned Eblen not to request written approval for U.S. military courts

to operate in Vietnam, inferring that a formal request would be denied

as an infringement of sovereignty.

Mau’s tacit approval was all Eblen needed, and before long,

summary and special courts-martial were being convened in

Vietnam.21 And not just in Vietnam. American forces were also in

Thailand as part of a military advisory effort, and Gen. Paul D. Harkins,

the MACV chief, traveled to Bangkok to discuss a possible status of

forces agreement between the United States and Thailand. While in

Bangkok, Harkins learned from his Thai counterpart that although the

Thai government “would impose no objection to the convening of

courts-martial in Thailand by U.S. authorities” and was agreeable to the

United States having exclusive criminal jurisdiction over its forces,

there was “a great reluctance to sign anything” to that effect. Based on

his experience in Vietnam, Lt. Col. Eblen advised Gen. Harkins that

convening courts-martial on the basis of the Thai government’s tacit

9
approval would establish a

precedent that “would have

the same effect in this part of

the world as would a written

document.”22

No general courts-martial

were convened in Vietnam

during Lt. Col. Eblen’s tenure as staff judge advocate.

This was because the advisory group was not a general

court-martial convening authority, and also because the

command’s policy was that

any soldier, sailor, airman, or

Marine meriting trial by general court-martial was no

longer needed in Vietnam.

Consequently, where a general court was appropriate, charges were preferred and an Article 32 investigation was held in Vietnam. For referral, the accused and the entire

case packet were sent to Schofield Barracks in Hawaii or to Clark Air

Base or Subic Bay Naval Base in the Philippines, depending on the accused’s branch of service.23

“Advising” the Vietnamese

Believing that South Vietnam’s military justice system would work

better if modeled after American rather than French military law, Lt.

Col. Durbin met every Wednesday afternoon with Col. Mau to draft a

new criminal code for the South Vietnamese armed forces. Durbin had

the 1928 Manual for Courts-Martial, which he thought “ideal for the

Vietnamese Army because it was much more simple than the 1951

Manual—not necessarily better—just simpler.” The remainder of

Durbin’s legal library consisted of the Court-Martial Reports, the “red

books” containing courts-martial cases decided on appeal by the Army

Board of Review and Court of Military Appeals. He also had some

Army regulations. He did not have anything else.24

Durbin’s methodology was to go through the Uniform Code article

by article, explaining military practice and procedure to his Vietnamese

counterparts. Vietnamese judge advocates were receptive to most of the

10

Lt. Col. George C. Eblen, left, with Lt. Gen. Le Van

Ty, Chief of Staff, Army of the Republic of

Vietnam, before leaving on an inspection tour

of Vietnam, 10 February 1962. Eblen was the

second judge advocate to deploy to Vietnam.

He retired in 1966 and died in 2001.
Uniform Code, and Durbin worked especially hard on altering the role

of the Vietnamese judge advocate in capital cases. The Viet Cong were

murdering village chiefs, and, if caught, they were prosecuted in South

Vietnamese military courts. The sentence was usually death, and a substantial number of executions occurred. Durbin learned that a Vietnamese armed forces lawyer presided at the imposition of every death

sentence, supervising the beheading by guillotine. Believing that the

carrying out of a sentence was more properly a police rather than a judicial function, Durbin told the Vietnamese judge advocates that it was

inappropriate for an officer of the court to preside over an execution.

Police authorities, he argued, were better suited to sentencing tasks.

Durbin’s work on a new Vietnamese code of military justice was never

finished, and the project was abandoned after his departure in July

1961.

As Vietnam’s top military lawyer, Col. Mau was not only the

Director of Military Justice, but also the chief of the Gendarmerie.

Consequently, Lt. Col. Durbin worked to understand the Gendarmerie

and advise his colleague how to make it function better. Modeled after

the French force of the same name, the Gendarmerie was a national

police force that “filled a gap between military and civilian law

enforcement.”25 Known as “the Red Hats” after their distinctive red

berets, the Gendarmerie was a rural-based “judicial police” empowered

to conduct investigations for the Vietnamese courts. The members of

the Gendarmerie could apprehend both civilians and military

personnel. They also could take sworn statements that were admissible

in court, and so were an important part of the judicial process in addition

to their law enforcement role. Additionally, the Red Hats were a

respected symbol of authority and in many areas were the only contact

the local population had with the Saigon government. Durbin

recognized soon after his arrival that the Gendarmerie was an important

organization that could benefit from American advice and support, and

he worked to preserve it. The MAAG provost marshal, however,

opposed the Gendarmerie and worked to prevent it from receiving

MAAG funds. For example, money was made available to the

Vietnamese military police to purchase handcuffs while the

Gendarmerie was told to secure prisoners with rope. Viewing police

functions in terms of their own experience, the provost marshal and

other MAAG police advisers failed to appreciate the Gendarmerie’s

value, as it “did not fall into any familiar category of American law

enforcement organization.” Despite Durbin’s protests and his

recommendation that the Gendarmerie be increased rather than

11
decreased in size, it was increasingly deprived of MAAG funding and

was disbanded on 1 January 1965. In retrospect, this was a serious error,

for it removed a visible government presence in the countryside and

disrupted military judicial operations “for a considerable period of

time.”26

Durbin’s other major advisory efforts were teaching law and English

to the South Vietnamese. The courts and the legal profession played a

small part in Vietnamese society, principally because Confucianism

encouraged negotiation and adjustment rather than conflict.

Consequently, the Vietnamese were reluctant to bring civil disputes to

court, and there were remarkably few lawyers available. During

Durbin’s tenure as staff judge advocate, Vietnam had a population of

about sixteen million, yet it had only about 160 practicing lawyers.27

By comparison, California, with a population slightly larger than that of

South Vietnam during that period, had about 25,000 practicing

attorneys. All Vietnamese lawyers were graduates of the law school in

either Hue or Saigon. Lt. Col. Durbin decided that his advisory efforts

should begin with law students, so he contacted the University of

Saigon law school soon after his arrival. A prerequisite for graduation

was a law course taught in a foreign language. As a practical matter, a

professor from a French law faculty traveled yearly to Saigon to teach

this required course, but in 1960, no one was coming. This fact,

lamented the dean of the law school to Durbin, meant the law school

would have no graduates that year. Durbin quickly recommended a

solution. He created a new course, “American Jurisprudence,” which

he taught every Saturday morning to an enthusiastic group of sixty to

seventy law students. The highlight of the course was a mock jury trial

modeled after an actual Kentucky criminal case familiar to Durbin from

his years of private law practice in that state. The students played the

roles of defendant, prosecutor, defense counsel, judge, and jury, with

the proceedings held at the Palace of Justice. Durbin recognized that

teaching the course would bring him into contact with the future leaders

of the Vietnamese judicial establishment, yet his teaching was also a

labor of love. It was a mark of the value of the class that MACV lawyers

continued providing this instruction in later years as well.28

Durbin also taught English at the Vietnamese-American

Association. The association, sponsored by the U.S. embassy,

coordinated English classes and paid those teaching a small stipend in

Vietnamese piasters. Teaching English brought judge advocates in

contact with Vietnamese officials and so aided the advisory effort in

Vietnam. Durbin taught twelve to twenty students over a twelve-month

12
period, beginning with basic English speaking skills and ending with

written composition.29

After Lt. Col. Durbin left Vietnam in August 1961, Lt. Col. Eblen

continued a number of his advisory programs. Eblen met weekly with

the Director of Military Justice. These meetings, conducted entirely in

French, discussed matters of mutual interest. Eblen learned, for

example, that the South Vietnamese were no longer interested in

modeling their military criminal law system after the Uniform Code of

Military Justice, if they ever had been. The French had imposed their

system on the Vietnamese more than a century earlier, and the latter had

come to like it as well as understand it. Consequently, the South

Vietnamese judge advocates did not see why their system should be

changed to suit the Americans. Eblen concluded that any further

“Americanization” of the Vietnamese military justice system should be

a low priority. Believing instead that “cooperation and good relations”

between the Vietnamese and Americans were of greater importance,

Eblen ceased working on a new Vietnamese military code. To assist in

MAAG advisory efforts, however, Eblen had his office translate the

Vietnamese penal code from French into English, forwarding a copy of

it to the newly established Foreign Law Branch in the Office of the

Judge Advocate General in Washington, D.C., when that office

requested a copy.30

Lawyering at the Military Assistance Command, Vietnam,

and U.S. Army Support Group,Vietnam

The creation of the MACV as a unified command in February 1962,

and the establishment one month later of the U.S. Army Support Group,

Vietnam, as the Army component under MACV headquarters heralded

a much greater commitment of men and materiel to Vietnam, including

lawyers. Personnel changes in the legal community reflected this

stepped-up commitment.

In August 1962, Lt. Col. Eblen was replaced by Lt. Col. George F.

Westerman. An international law expert who would later serve as the

chief of the International Affairs Division in the Office of the Judge

Advocate General, Westerman provided legal advice to both MAAG

and MACV headquarters. Including Maj. Wright and 1st Lt. Graves,

who remained at the advisory group, there now were three Army

lawyers in Saigon. A year later, in 1963, Westerman, Wright, and

Graves were replaced by three other Army lawyers, Lt. Col. Richard L.

Jones, Maj. William G. Myers, and Capt. John A. Zalonis. Like their

13
predecessors, all three men were assigned to the advisory group but

served both MAAG and MACV headquarters.

With the disestablishment of the MAAG in May 1964, Lt. Col.

Robert J. DeMund, who had replaced Lt. Col. Jones in December 1963,

became the first MACV staff judge advocate. Lt. Col. George R.

Robinson was scheduled to follow DeMund as the top lawyer in

Vietnam, but DeMund had, prior to his departure, recommended that

the position be upgraded, and the MACV commander, Gen. William C.

Westmoreland, agreed. Consequently, Lt. Col. Robinson, who arrived

in November 1964, was quickly followed by Col. George S. Prugh.

Prugh not only was the first “bird” colonel lawyer at headquarters but

also the first MACV staff judge advocate to have graduated from the

Army War College. Robinson, however, very much wanted to serve in

Vietnam, so he willingly took over as MACV claims judge advocate

from Maj. Myers. Rounding out the MACV office were an Air Force

judge advocate and a Navy lawyer. Prugh, Robinson, and those two

lawyers made up the entire office.

Complementing the lawyer buildup at the advisory group and

assistance command was the addition of an Army attorney to the U.S.

Army Support Group. Its first judge advocate, Capt. Arthur H. Taylor,

arrived in September 1962 and acted as a one-man legal adviser to the

brigadier general in command. After Taylors’s departure and the unit’s

redesignation as the U. S. Army Support Command, Vietnam, a lone

judge advocate continued to be assigned to it. This ensured that the

general officer in command had ready access to a lawyer and legal

counsel.

Work at MACV and the support group headquarters was routine,

with office hours from 0730 to 1830 or 1930 every night except Sunday,

when the offices closed about 1600. Life in Vietnam, although

increasingly insecure, still was relatively pleasant. Army lawyers on a

twelve-month tour lived in bachelor officers quarters such as the Brink

Hotel in Saigon, with life outside of work centering on the officers club

and 10-cents-a-glass beer. Some at MACV headquarters, however,

continued to serve accompanied two-year tours. Col. Prugh, for

example, was accompanied by his family and was “quickly

established” in a Chinese villa “with a fine garden and all of the modern

conveniences.”31 His daughter enrolled in the American Dependents

School and his wife set up housekeeping with the help of a Vietnamese

cook and maid. But Prugh was the last judge advocate officially to have

his family with him; the Brink bombing on Christmas Eve 1964 and

subsequent guerrilla attacks on U.S. forces at Pleiku and Qui Nhon

14
resulted in the return of all dependents to the United States in February

1965.

Expanded Legal Services

From mid-1962 to early 1965, the staff judge advocate’s operation at

MACV was so small that there was minimal formal organization. Col.

Prugh did designate specific areas of responsibility, and his

organization was located on the third floor of the Tax Building on

Nguyen-Hue Street in Saigon.

Prugh tasked Lt. Col. Robinson with the claims mission. His Navy

lawyer, the sole legal assistance officer, also had responsibility for

administrative law and international affairs. Prugh’s Air Force judge

advocate was a one-man military justice and discipline operation. All

four attorneys, however, did some legal assistance, and all were called

upon to provide command legal advice. Additionally, Col. Prugh

served as the legal adviser to the U.S. embassy, U.S. Information

Service, and U.S. Agency for International Development, as these

organizations did not have their own lawyers in Vietnam.

MACV lawyers advised the command on nonjudicial proceedings

under Article 15 of the Uniform Code. A few summary and special

courts-martial were convened in Vietnam but, because of the

continuing issue of Vietnamese sovereignty, no general courts-martial

were conducted. Consequently, when a member of the Army

committed a criminal offense requiring disposition by general court,

the lawyers at MACV headquarters preferred the charges, conducted

the Article 32 investigation, and then forwarded the packet to the U.S.

Army, Ryukyu Islands, on Okinawa, the next higher Army

headquarters. That general court-martial convening authority referred

the case to trial and held the proceedings there. In mid-1962, Capt.

Ronald M. Holdaway, later to serve in Vietnam as staff judge advocate

of the 1st Cavalry Division, traveled from Hawaii to Okinawa to serve

as defense counsel in general courts-martial originating in Vietnam.32

The full-time claims judge advocate at MACV headquarters was

very busy. The experiences of Maj. William Myers illustrate early

claims work in Vietnam. Myers, arriving in December 1963 as the

replacement for Capt. Zalonis, had prior service as a World War II

naval officer at Iwo Jima and Okinawa. He then transferred to the Army

and, after service as an artilleryman with the 1st Cavalry Division in the

Korean War, went to law school at Army expense from 1952 to 1955.

After a stint as an Army lawyer in France, and then as a legal adviser in

15
Lebanon during the 1958 U.S. intervention, Myers arrived in Saigon as

an experienced military lawyer.

Myers handled all monetary claims filed in Vietnam and payable

under the Personnel Claims Act, Military Claims Act, or Foreign

Claims Act. The Personnel Claims Act allowed claims by soldiers for

damages to or loss of their personal property incident to their service,

including combat damage or loss. The Military Claims Act permitted

claims by family members of MACV personnel for damages caused by

the fault of military personnel or Army civilians acting within the scope

of their employment, but the negligence or fault had to be

noncombat-related. Finally, the Foreign Claims Act allowed claims by

Vietnamese nationals for damages for personal injury, death, or

property damage caused by U.S. personnel. The claims, however, had

to result from noncombat negligence or other fault; claims for

combat-related damage were not payable under the Foreign Claims

Act. An example of a claim handled by Maj. Myers involved combat

damage to a U.S. adviser’s camera. The man had his camera in his

rucksack, which was strapped to the side of a South Vietnamese tank.

The tank ran over a mine, and a piece of shrapnel went through the

camera’s lens. The adviser filed a claim for property damage under the

Personnel Claims Act. Initially, Lt. Col. DeMund resisted approving

the claim, believing that the damage was not incident to service because

the adviser had no need for a camera in the field. When the senior U.S.

adviser in the area insisted that his advisers carried cameras for

intelligence purposes, the claim was approved.33

Although claims were filed under the Personnel Claims Act and

Military Claims Act, the most serious claims handled by Maj. Myers

and claims judge advocates before and after him were those filed by the

Vietnamese under the Foreign Claims Act. Most were for property

damage or personal injury suffered in traffic accidents involving

MACV vehicles. As a one-man foreign claims commission, Myers had

authority under that statute to pay any foreign claim up to $1,000.

Meritorious claims were settled promptly, as this promoted friendly

relations between U.S. forces and the Vietnamese.

From 1962 to 1965 Capts. Taylor, Baldree, and McNamee served at

the Army component command headquarters. Capt. Taylor, the first

lawyer at the U.S. Army Support Group, arrived in September 1962.

After serving as an infantry officer in the United States and Germany,

Taylor transferred to the Judge Advocate General’s Corps and, after

three years’ experience as an Army lawyer, found himself as the sole

lawyer on Brig. Gen. Joseph W. Stilwell Jr.’s staff. Working conditions

16
were less than ideal. Taylor’s office was in a tent and, without air

conditioning, paperwork was quickly covered with sweat. Paper clips

rusted so quickly in the climate that they could be used only once. The

frayed electrical wire strung through Taylor’s tent provided a power

source, but it also caused the canvas cloth to catch fire. On several

occasions, Taylor and his colleagues would organize a fire

brigade—emptying their wastepaper baskets, filling them with water

from an animal watering trough, and dousing the fire. Security also was

a concern. Shortly after arriving, Taylor learned that a Viet Cong attack

was imminent. When he went to draw a weapon from the support

command armorer, however, Taylor discovered that there were no

weapons. He had his brother in the United States send him a .45-caliber

semiautomatic pistol in the mail.34

Although the support group headquarters was at Tan Son Nhut

airport in Saigon, Army elements were based throughout South

Vietnam and Thailand. This meant that Taylor frequently journeyed by

helicopter and airplane as far north as Da Nang and as far east as

Bangkok to provide legal advice to the command and its soldiers. Most

of his work concerned military justice and legal assistance. Brig.Gen.

Stilwell became a special court-martial convening authority shortly

after Taylor’s arrival, and Taylor was soon conducting legal reviews of

the special courts-martial convened during his stay. Capt. Taylor’s

biggest job, however, was getting the word out to commanders about

the new amendments to Article 15 of the Uniform Code. Congress

amended that article in 1962 by increasing a commander’s power to

punish nonjudicially, thus providing a better alternative to trial by

court-martial for minor offenses. Previously, for example, a

commander did not have the authority to impose forfeiture of pay on

enlisted personnel at an Article 15 proceeding. The 1962 amendments,

however, allowed a forfeiture of from seven days’ pay to one-half of

one month’s pay for two months, depending on the grade of the officer

imposing the punishment. As a result of these changes, Taylor had an

airplane assigned to him for travel throughout Vietnam to apprise Army

personnel of the amendments. Using the plane required that Taylor

learn the rudiments of flying. A few months earlier, a pilot had been

shot while flying a mission and the passenger in the rear seat was

required to fly and land the plane. Should a similar emergency occur

with Taylor on board, he would be better prepared.35

Capt. Taylor returned to the United States in 1963 and was replaced

by Capt. Baldree. When the latter left in June 1964, his replacement was

Capt. McNamee. A former infantry officer with service in the 82d

17
Airborne Division, 5th Infantry Division, and 10th Special Forces

Group before entering the Judge Advocate General’s Corps in 1963,

McNamee quickly discovered that his new boss, Brig. Gen. Stilwell,

required more than good lawyering from his legal adviser. The son and

namesake of Lt. Gen. Joseph W. Stilwell of World War II fame, the

younger Stilwell asked his staff officers to serve as door gunners on

helicopter missions. With some encouragement, McNamee

volunteered.

After Stilwell’s departure a few months later, Capt. McNamee

discovered that his new boss, Gen. Oden, had a different perspective on

a judge advocate’s role. Oden not only looked to McNamee for legal

advice, but also tasked him with solving nonlegal problems. For

example, U.S. Army troops in Vietnam were not receiving hostile-fire

pay, although some were being wounded and killed in combat

operations. After researching the issue, McNamee advised Gen. Oden

that hostile-fire pay could and should be paid, and he drafted a

memorandum for the latter that went to MACV headquarters. The

result was that hostile-fire pay was approved for soldiers in Vietnam.

For this and other excellent staff work, McNamee received the Legion

of Merit.36

New Issues

When Col. Prugh arrived at MACV headquarters around

Thanksgiving 1964, he brought with him superb credentials. With

World War II service as an artillery officer in New Guinea and the

Philippines, Prugh appreciated the difficulties facing the MACV

command and staff. Having been a judge advocate since 1949, with

three previous tours in the Pentagon and overseas lawyering in

Germany and Korea, Prugh was also adept at handling legal policy

questions at a high level. Perhaps this explains why he immediately saw

three major issues in Vietnam requiring lawyer involvement. The first

involved prisoners of war, the second concerned war crimes, and the

third dealt with resources control.

By the end of 1964, more than 24,000 American soldiers were in

Vietnam. As some of these men were participating in combat

operations, it was inevitable that a few were captured by the enemy.

What was happening to these Americans? Although some survived,

Col. Prugh learned that it was more likely for the Viet Cong to kill them

rather than take them prisoner. One captured American adviser, for

example, had been beheaded and his head displayed on a pole. Another

18
had had his hands tied behind his back before being shot in the head.

Having obtained permission from Gen. Westmoreland to question

soldiers departing Vietnam at the end of their advisory tours, Prugh

learned that both sides—Viet Cong and South Vietnamese—often

killed enemy wounded and those captured. The fratricidal nature of the

war explained these killings, at least in part. Some guerrillas were

executed by the South Vietnamese, however, because the latter viewed

them as “Communist rebel combat captives” deserving summary

treatment as illegitimate insurgents acting against a legitimate

government. In short, the government initially refused to treat Viet

Cong captives as prisoners of war. Rather, as prisoner of war status

afforded by the Geneva Convention Relative to the Treatment of

Prisoners of War applies only in armed conflict between states, and as

the fighting in Vietnam was regarded by the South Vietnam

government as a civil insurrection, the Saigon government insisted that

the Geneva Convention was inapplicable and that captured enemy

personnel were not entitled to prisoner of war status. Thus, those

guerrillas who did survive capture in the field were not sent to prisoner

of war camps. Instead, they were imprisoned “in provincial and

national jails along with political prisoners and common criminals.”37

In sum, the government viewed the enemy as criminals and treated

them accordingly. The Viet Cong, however, were usually even harsher

in their treatment of captives, executing South Vietnamese soldiers

falling into their hands as a matter of routine. Initially, captured U.S.

advisers were spared, but when the government of South Vietnam

publicly executed some enemy agents, the Viet Cong killed captured

U.S. advisers in retribution.38

Col. Prugh and his legal staff quickly realized that American

advisers captured in South Vietnam and pilots shot down and taken

prisoner in North Vietnam would not survive captivity unless these

men received prisoner of war status. Believing that the Viet Cong and

North Vietnamese might reciprocate with better treatment of U.S.

captives if South Vietnam were to reverse its position on the status of

Viet Cong prisoners, Prugh and his staff worked to convince Col.

Nguyen Monh Bich, the Director of Military Justice, that it was in

South Vietnam’s best interest to construct prison camps for enemy

captives and to ensure their humane treatment during imprisonment.

The more enemy prisoners of war there were in custody, the more likely

that an exchange of South Vietnamese and American prisoners of war

could be worked out. Additionally, a unilateral decision by the Saigon

government to acknowledge the applicability of the Geneva

19
Convention Relative to the Treatment of Prisoners of War “would also

ameliorate domestic and international criticism of the war.”39

In December 1964, Col. Prugh and Col. Bich visited Vietnamese

confinement facilities throughout South Vietnam. By American

standards, conditions were very poor—overcrowding, insufficient

food, and a shortage of qualified security personnel prevailed. In Da

Nang, for example, Prugh saw that one jail, built by the French to house

250 individuals, in fact had some 750 people incarcerated in it. Not only

were far too many people locked up in the facility, but also combat

captives were mingled with prostitutes, thieves, and other criminals,

along with juveniles, popularly known as “slicky boys” because of their

streetwise ways.40

In the end, persuading the South Vietnamese to reverse course was

agonizingly slow. Yet by mid-1966, the South Vietnamese had set up

facilities suitable for confinement of prisoners of war, and the number

of such prisoners held by South Vietnam went from zero to nearly

36,000 by the end of 1971. Prugh and the judge advocates who followed

him deserve much of the credit for reversing South Vietnam’s “no

POW” policy and the resulting better treatment for enemy prisoners of

war. Unfortunately, the Viet Cong and North Vietnamese did not

acknowledge the applicability of the Geneva Convention, and their

treatment of American and South Vietnamese captives continued to be

brutal. But, as more U.S. troops were surviving capture and the humane

treatment afforded Viet Cong and North Vietnamese Army prisoners

exerted constant pressure on the enemy to reciprocate, Col. Prugh’s

initiative was of real benefit.41

The second issue of critical importance to Prugh was the formulation

of a policy on war crimes investigations. When Prugh arrived in 1964,

the American command had no official policy on how violations of the

Law of War should be investigated or on who should conduct such

investigations. Believing that the command not only needed “uniform

procedures for the collection . . . of evidence relative to war crimes

incidents” but that it also must “designate the agencies responsible for

the conduct of [such] investigations,” Prugh authored MACV Directive

20–4, Inspections and Investigations of War Crimes.

42 In preparing the

directive in early 1965, he looked to an old memorandum on war crimes

reporting authored by Col. (later Maj. Gen.) George W. Hickman

during the Korean War, when Hickman was staff judge advocate of the

United Nations Command. Using the Hickman memorandum as his

point of departure, Col. Prugh produced a document defining different

types of war crimes and prohibited acts and requiring their reporting to

20
the MACV staff judge. Prugh’s original MACV Directive 20–4

governed only investigations of war crimes committed against U.S.

forces. Subsequently, however, MACV lawyers revised the directive

so that it encompassed war crimes committed both by and against U.S.

military and civilian personnel in Vietnam. By mid-1965, MACV

judge advocates advised on, assisted in, and later reviewed all war

crimes investigations in Vietnam. This was a significant responsibility

and remained a major mission for MACV lawyers until the end of the

war in Vietnam.43

The third problem identified by Col. Prugh as needing lawyer

involvement concerned resources control in South Vietnam. Believing

that the defeat of the enemy would not occur without a “plan of national

pacification in the form of the blockade of all enemy sources of supply,”

the Saigon government issued nearly 100 legal decrees controlling the

distribution of resources.44 Materiel critical to the enemy effort—food,

medicine, transport, and other items—was strictly controlled by

monitoring its use and by storing excess supply in

government-controlled buildings. As the MACV mission was to aid the

government in its fight against the insurrection, MACV advisers had to

understand all of Saigon’s efforts undertaken to win the war. Given that

the principal method for controlling the supply and distribution of

resources was by enacting a series of laws and prosecuting violators in

the South Vietnamese military courts, MACV judge advocates

naturally were the focal point for intelligent advice on resources

control. Effective advising, however, meant collecting, translating,

indexing, interpreting, mimeographing, and distributing all relevant

government decrees and directives. It also meant learning how

resources control really worked so that practical guidance could be

distributed to U.S. advisers in the field.

MACV lawyers soon recognized that they had to be familiar with all

Vietnamese laws having a bearing on the conduct of the war. This

required understanding the entire Vietnamese legal system and keeping

abreast of changes affecting more than just resources control. For

American-trained lawyers, this was no easy task. For example,

Vietnamese law made no distinction between criminal and civil

matters, important in Anglo-American jurisprudence. The Vietnamese

civilian court system existed side-by-side with its military court

system, but the latter exercised extremely broad jurisdiction, as all

offenses against state security were prosecuted in military courts.

Consequently, as any breach of a resources control law was a crime

against state security, this meant that both civilian and military

21
offenders were prosecuted in military courts. Again, for U.S.-schooled

judge advocates, this was an important point, given that American

courts-martial generally lack jurisdiction over civilian offenders.

MACV judge advocates quickly learned that advising on resources

control required synthesizing various Vietnamese laws and decrees and

then disseminating that information to nonlawyer U.S. advisers. While

some compilation of Vietnamese law had been done by early judge

advocate advisers, major efforts in gathering and distributing

information on Vietnamese law occurred only after 1965, when

additional personnel assigned to Col. Prugh’s office in Saigon meant

more manpower was available for this task.45

Army Lawyers on the Eve of the Intervention

The arrival of the 173d Airborne Brigade (Separate) in May 1965

marked the end of relatively small U.S. Army involvement in Vietnam

and the beginning of direct intervention. The role of Army lawyers in

Vietnam from 1959 to 1965 reflected the limited mission in the early

period. Military justice, claims, legal assistance, administrative

law—traditional military lawyering—were done by a single judge

advocate or a small legal operation. Judge advocates in Vietnam also

served as advisers to the South Vietnamese. With no previous

experience or model to follow, Army lawyers created an advisory

program that directly supported the war effort. Advising began with

teaching American jurisprudence and learning about Vietnamese law.

Later, it included spearheading efforts to gain prisoner of war status for

enemy soldiers. In November 1965 when South Vietnam accepted the

applicability of the Geneva Convention to the fighting in Vietnam, it

was not only a major victory for the rule of law in war, but also an

enhanced opportunity for survival for U.S. personnel in enemy hands.

The eve of the intervention, then, found Army lawyers in Vietnam

doing both their traditional legal service and important advisory work.

The coming years would transform the role and mission of the U.S.

Army in Vietnam. More soldiers and more units would mean more

lawyers, but the intervention resulted in more than rapid growth in the

size of the Judge Advocate General’s Corps. It also brought major

changes in judge advocate operations in combat, particularly in the area

of military justice. At the same time, a number of judge advocates

continued taking individual initiatives to enhance mission success in

nontraditional ways. For some, this would mean taking personal risks

as Col. Durbin did in leaving the safety of his home to observe a coup

d’etat by disaffected South Vietnamese paratroops. For others, it would

22
mean using legal talents as Col. Prugh did in persuading the South

Vietnamese military that the Geneva Convention on Prisoners of War

applied to ongoing hostilities, in formulating a policy on war crimes

investigations in Vietnam, and in creating the unique advisory

program. These individual initiatives showed that a judge advocate

could enhance mission success in nontraditional ways and the

increasing number of Army lawyers in Southeast Asia showed a

corresponding increase in the number of such individual initiatives.

23
Notes

1. Interv, author with Col Paul J. Durbin, 1 Jul 96, Historians files, Office of the

Judge Advocate General (OTJAG), Department of the Army, Washington, D.C.

2. Memorandum no. 10, Missions and Functions of MAAG Advisers, MAAG Hq,

27 Jan 61, box 25, Records of the MAAG Adjutant General Division, Record

Group (RG) 334, National Archives and Records Administration (NARA),

College Park, Md.

3. Vincent H. Demma, “The U.S. Army in Vietnam,” in Maurice Matloff, ed.,

American Military History (Washington, D.C.: Government Printing Office,

1973), 623; Ronald H. Spector, Advice and Support: The Early Years,

1941–1960, U.S. Army in Vietnam (Washington, D.C.: Government Printing

Office, 1983), 291.

4. Demma, “U.S. Army in Vietnam,” 631.

5. MAAG Vietnam Judge Advocate Responsibilities, Appendix I to Annex L

(Legal), MAAG Vietnam OPLAN 61–61, 10 Feb 61, box 25, Records of the

MAAG Adjutant General Division, RG 334, NARA.

6. Interv, author with Durbin, 1 Jul 96. For an in-depth discussion of the

Vietnamese legal system and its French structure, see George S. Prugh, Law at

War: Vietnam 1964–1973, Vietnam Studies (Washington, D.C.: Government

Printing Office, 1974), 15–39.

7. Interv, author with Durbin, 1 Jul 96.

8. Ibid.

9. Interv, author with Col George C. Eblen, 23 Aug 96, Historians files, OTJAG.

10. DF, MAAG Hq, 25 Aug 60, sub: Investigation-M/SGT Price, box 23, Records of

the MAAG Adjutant General Division, RG 334, NARA.

11. Interv, author with Durbin, 1 Jul 96.

12. Ibid.

13. Spector, The Early Years, 370.

14. Interv, author with Durbin, 1 Jul 96.

15. MAAG Vietnam OPLAN 61–61, Annex L (Legal).

16. Ibid.

17. Ibid.

18. Ibid.

19. Ibid.

24
20. Interv, author with Eblen, 9 Sep 96, Historians files, OTJAG.

21. Ibid.

22. Memo for Record, MACV Hq, 17 Jul 62, sub: Status of Forces in Thailand,

Historians files, OTJAG; interv, author with Eblen, 9 Sep 96.

23. Interv, author with Eblen, 23 Aug 96; Prugh, Law at War, 98.

24. Interv, author with Durbin, 1 Jul 96.

25. Prugh, Law at War, 46.

26. Ibid., 47.

27. Staff Study, MACV Hq, “Purpose: To examine the role of the Civil Law in

counterinsurgency in Vietnam and to make pertinent recommendations,” 31

May 65, p. 3, Historians files, OTJAG.

28. Interv, author with Durbin, 1 Jul 96. See also Prugh, Law at War, 41.

29. Interv, author with Col Paul J. Durbin, 16 Aug 96, Historians files, OTJAG.

30. Interv, author with Eblen, 9 Sep 96.

31. Ltr, Prugh to Col Thomas H. Swan, 26 Apr 65, Historians files, OTJAG.

32. Interv, author with Ronald M. Holdaway, 24 Jul 96, Historians files, OTJAG.

33. Interv, author with Lt Col William G. Myers, 15 Jul 96, Historians files,

OTJAG.

34. Interv, author with Arthur H. Taylor, 2 Aug 96, Historians files, OTJAG.

35. Ibid.; interv, author with Arthur H. Taylor, 21 Nov 96, Historians files, OTJAG.

36. Interv, author with Alfred A. McNamee, 31 Jul 96, Historians files, OTJAG.

37. Jeffrey J. Clarke, Advice and Support: The Final Years, 1965–1973, U.S. Army

in Vietnam (Washington, D.C.: Government Printing Office, 1987), 119.

38. Prugh, Law at War, 63.

39. Clarke, The Final Years, 120.

40. Prugh, Law at War, 63; interv, author with Prugh, 31 Jul 96, Historians files,

OTJAG.

41. Prugh, Law at War, 61–67; Clarke, The Final Years, 170.

42. MACV Directive 20–4, Inspections and Investigations of War Crimes, 20 Apr

65, Historians files, OTJAG.

43. Prugh, Law at War, 72–73.

25
44. Memo, MACV Hq, 21 Jan 65, sub: Resources Control, Arrest, Search, and

Seizure Laws in the Republic of Vietnam, Incl 2, 1, Historians files, OTJAG.

45. Prugh, Law at War, 42; interv, author with Prugh, 31 Jul 96.

26
Chapter 2

Vietnam: Military Law During the

Offensive 1965-1969

“Every Staff Judge Advocate should ask two questions:What should I

do to keep my command obedient to the law? What can the law do to

further the mission of the command? In Vietnam, the second question

kept us the busiest."1

Maj. Gen. George Prugh, Staff Judge Advocate,

Military Assistance Command, Vietnam

(1964-1966)

Background

Once the decision was taken to intervene with ground troops, in the

spring of 1965, policy and battlefield patterns were set that would see

the United States through the next four years of war. When the year

began, there was still some hope, although rapidly diminishing, that an

expansion in advice and support operations short of ground forces

would enable Vietnam to weather the most recent upsurge from the Viet

Cong. That advice and support option evaporated quickly when a series

of South Vietnamese battle defeats raised the specter of collapse. From

that point on, unwilling to accept the consequences of a Communist

victory that seemed ever more likely, the Johnson administration

started pouring men and materiel into Vietnam; the war for that nation,

hitherto limited, turned into high drama for the United States.

In entering upon this course of escalation and perseverance, no

source of military pressure was overlooked. The bombing of North

Vietnam, begun in February, was one prong of an evolving American

war strategy. Support for Saigon’s pacification effort in the countryside

was a second prong and increased in importance as time went on.

Nevertheless, the main focus of the American intervention was ground

combat against the enemy’s main forces wherever they could be found.

In furthering that mission while managing an ever-expanding ground

war by maneuver elements of the U.S. Army and Marine Corps, Gen.

Westmoreland and MACV headquarters held center stage.2

Westmoreland’s instruments for exercising operational control over

U.S. ground forces started with three corps-size commands in the

field-I Field Force and II Field Force for U.S. Army units, and III

27
Marine Amphibious Force for the Marines. The field forces were the

senior Army tactical commands in country, and they reported directly

to Westmoreland in Saigon. However, while exercising operational

control over U.S. units (and any Australian, Korean, or other Free

World forces subordinate to them), the two field forces were “to

maintain close liaison with MACV’s senior advisers with Vietnamese

troops” and coordinate with Vietnamese Army corps commanders in

their areas of operation.3 In theory, Westmoreland tasked a field force

with a particular mission, and it in turn selected one or more subordinate

divisions or a separate brigade to conduct the operation. In practice,

Westmoreland often went directly to his divisions, because the units

and personalities involved in an operation determined who would do

the actual planning or exercise control of it.

All Army units arriving in Vietnam were assigned to USARV, the

service component, which exercised command less operational control

of combat forces and was headed by the senior Army three-star in

Vietnam. Established in July 1965, the USARV command grew

rapidly-a burgeoning establishment of logistical, engineer, signal,

medical, military police, and aviation units driving the escalation in

manpower. And the numbers tell the story: of the Army’s eighteen

divisions, seven were in Vietnam by the end of 1967.4 These divisions

were the 1st Cavalry Division (Airmobile); the 1st, 4th, 9th, 23d, and

25th Infantry Divisions; and the 101st Airborne Division. The 23d

Infantry (Americal) Division was formed in Vietnam as an

amalgamation of the 11th, 196th, and 198th Light Infantry Brigades. At

the peak of the buildup in early 1969, there were 543,000 U.S. troops

from all the services in Vietnam, including recently deployed units such

as the 3d Brigade, 82d Airborne Division, and the 1st Brigade, 5th

Infantry Division (Mechanized). Joining these soldiers were some

1,100 U.S. civilian employees of the Department of Defense and about

9,000 U.S. civilian employees of U.S. contractors.5

Military operations in Vietnam ranged from large-scale battles

against main force Viet Cong and North Vietnamese units to platoonand company-size operations. Regardless of the size of the operation,

all fell into one of three categories: search and destroy operations

against large enemy units, clearing operations to force guerrilla units

out of an area, and securing operations to destroy the remaining

enemy.6 Operation ATTLEBORO, for example, started as a small

search and destroy operation in the II Field Force area north of Saigon,

but grew into a massive offensive involving twenty-one battalions from

the 196th Infantry Brigade; the 173d Airborne Brigade; the 1st, 4th, and

28
25th Infantry Divisions; and the 11th Armored Cavalry Regiment.

Control of ATTLEBORO passed from the 196th Brigade to the 1st

Division and finally to II Field Force as some 22,000 troops became

involved.

ATTLEBORO and operations like it, however, were the clear

exception. The typical U.S. Army division or separate brigade had a

designated area of operations, usually covering several Vietnamese

provinces within one of the four Vietnamese corps areas, in which

subordinate elements sought out the enemy’s forces. The 1st Cavalry

Division in 1969 illustrates how a typical division operated. Its main

headquarters, location of the commanding general and his principal

staff, was north of Saigon at Phuoc Vinh, protected by a battalion-size

“palace guard.” The division rear headquarters was at Bien Hoa,

location of most of its logistical and administrative support. The 1st

Cavalry’s three brigades with their respective headquarters were

29

Figure 1. Legal organization of U.S. Army units in Vietnam (1965-1972)
dispersed at three different base camps located 50 to 100 miles from

each other. Battalions in these brigades were located at still other bases,

usually settled in with artillery, and the battalions themselves were

often dispersed into two or three smaller bases. In sum, the 1st Cavalry

Division was spread out among a dozen or more base camps and

firebases. While the division and brigade bases were fairly permanent

in location, the firebases were not, opening or closing depending on the

division’s mission. Helicopters linked the firebases, ferrying troops,

supplies, and equipment to and from them. Platoon- and company-size

elements left their firebases-either on foot or by air-to conduct

operations. Most combat operations in Vietnam were never larger than

company size. Many were run at night.7

Measured by traditional military standards, the offensive against the

Viet Cong and North Vietnamese Army was successful, with high

enemy body counts (as many as ten enemy dead for every U.S.

casualty); large seizures of weapons, ammunition, food, and other vital

materiel; and repeated destruction of enemy base camps, bunkers, and

tunnel networks. That said, no matter how deeply U.S. forces ranged

into hostile territory, the enemy reorganized and reappeared on the

battlefield.

From 1965 to 1969, the number of Army lawyers in Vietnam

mirrored the ground combat buildup. There were four Army lawyers in

Vietnam-three at MACV and one at the support command-in early

1965. By 1969, there were more than 135 U.S. Army attorneys there.8

From 1965 to 1969, lawyers served at the headquarters of MACV;

USARV; I and II Field Forces; and every division and separate brigade,

as well as a number of large support organizations such as

transportation and engineer commands. Figure 1 illustrates the legal

organization of U.S. Army units in Vietnam between 1965 and 1972.

Lawyering at MACV

In early 1965, the MACV staff judge advocate’s office provided the

full range of legal services-from claims, legal assistance, and military

justice to international law, Law of War, and administrative law. It also

advised the Vietnamese Director of Military Justice and his staff. The

arrival of the first U.S. combat units in the spring and summer of that

year transformed the command’s legal operations and resulted in the

disappearance of certain of these traditional lawyering tasks. By late

1966, for example, the MACV staff judge advocate had transferred

responsibility for claims adjudication to USARV. Additionally, the

30
command no longer convened courts-martial; prosecuting and

defending cases were left to USARV judge advocates and military

lawyers assigned to its subordinate units. Consequently, by 1967, the

MACV legal office had a slimmed-down organizational structure: a

Civil Law and Military Affairs Division, a Criminal and International

Law Division, and an Advisory Division. In the Civil Law and Military

Affairs Division, MACV judge advocates advised on currency control,

black marketeering, withdrawal of privileges from civilian contractor

employees, denial of access to military installations and facilities to

U.S. civilians, and determinations of unacceptability for employment

under U.S. government contracts. The same division also advised on

real estate matters such as compensating owners for land appropriated

for use as a military base or facility and negotiating commercial leases

of property (there were more than 1,300 such leases in Saigon alone by

1970). The Civil Law and Military Affairs Division also advised the

Central Purchasing Agency, Vietnam, on importing, distributing, and

selling all post exchange items in Vietnam.

MACV’s Criminal and International Law Division furnished

“advice and guidance” to subordinate commands in the disposition of

disciplinary and criminal matters. In the area of international law, the

division maintained files of war crimes investigations and gave

opinions on the Geneva Conventions and Laws of War.9 The Advisory

Division coordinated with the Vietnamese Directorate of Military

Justice and participated in legal society and educational programs in

Saigon. It also monitored the activities of its judge advocate field

advisers. These lawyers worked in all four Vietnamese corps areas on a

wide variety of legal issues ranging from desertion control, resources

control, and security operations to obtaining transportation for

Vietnamese judge advocates, providing storage for records of trials,

and obtaining materiel for local prisons.10

Rounding out the MACV legal operation were one or more

Vietnamese attorney-advisers and interpreter-translators. An

Administrative Division provided clerical and other administrative

support for the office. MACV’s multiservice composition meant that

one or more Air Force and Navy judge advocates were always part of

the MACV legal staff, acting as liaisons with their respective services

in addition to the legal tasks given them by the MACV staff judge

advocate. As it happened, the latter remained an Army colonel because

Army personnel were always the largest MACV component.

The number of Army attorneys at MACV headquarters ranged from

a low of three in 1965 to a high of nine in 1967. In early 1967, eight

31
Army attorneys worked for Staff Judge Advocate Col. Edward W.

Haughney. They were Lt. Cols. Robert E. Bjelland, Guy A. Hamlin,

and Robert M. Thorniley; Capts. David T. Gray, Philip L. Robins,

Robert E. Shoun, and Pedar C. Wold; and 1st Lt. Russell C. Shaw.

Joining their Army counterparts at the headquarters were three Navy

lawyers and five Air Force lawyers, one of whom was a colonel and

served as Haughney’s deputy staff judge advocate. Supporting these

American attorneys were seven Vietnamese lawyers and some fifty

Vietnamese clerks and translators, making a total of about seventy-five

people at the MACV staff judge advocate’s office. As during Col.

Prugh’s tenure as MACV staff judge advocate, Col. Haughney and his

legal staff worked in the Tax Building in downtown Saigon and lived

across the street in the Rex Hotel.11 Figure 2 shows the organization of

the MACV Office of the Staff Judge Advocate in 1967. After that date

the number of Army lawyers at MACV headquarters declined.

Legal Policy Issues

By 1967, the MACV staff judge advocate’s office was formulating

legal policy in three major areas:

prisoners of war and war crimes,

discipline and criminal law, and claims.

Agreed upon policies were

promulgated in MACV directives, and

over the next few years MACV lawyers

wrote and periodically updated more

than twenty regulations.

On the subject of prisoners of war

and war crimes, MACV continued to

develop legal policy based on the

Geneva Prisoner of War Convention

and U.S. policy. By August 1965, the

South Vietnamese accepted the

American view that the hostilities

constituted an armed international

conflict, that North Vietnam was a

belligerent, and that the Viet Cong were

agents of the government of North

Vietnam. Shortly thereafter, the

commander of MACV directed that all

suspected guerrillas captured by U.S.

combat units be treated initially as

32

Col. Edward W. Haughney, MACV

staff judge advocate, 1966-67.

Having participated in five campaigns while an artillery captain in

France and Germany in World War

II, Haughney had a wealth of real

world experience. During his 12

month tour in Vietnam, Haughney

and his staff used the law to support MACV by promulgating the

first procedural framework for

classifying prisoners of war.
prisoners of war and that those units be responsible for prisoners from

the time of capture until release to Vietnamese authorities. Although

MACV could have kept enemy captured by American units in U.S.

custody, the decision was made that they would be detained only long

enough to interrogate them for tactical intelligence. Thereafter, all

prisoners were sent to a combined U.S.-Vietnamese center for

classification and further processing by the South Vietnamese.

Prisoners of war were sent to prisoner of war camps; innocent civilians

were released and returned to the place of capture; civilian defendants

were delivered to Vietnamese civil authorities; and guerrillas seeking

amnesty under the “Chieu Hoi” or “Open Arms” program were sent to

the Chieu Hoi center. Although the Vietnamese authorities took

custody of all prisoners of war, Article 12 of the Geneva Prisoner of

War Convention still required the United States to ensure that

Vietnamese treatment of captives complied with the convention.

Consequently, by the end of 1968, MACV lawyers had helped

implement a prisoner of war program that established Vietnamese

prisoner of war camps and created a repatriation program for prisoners

of war.

Although the MACV provost marshal was primarily responsible for

advising the Vietnamese on prisoner of war camp issues, MACV judge

advocates took the lead on several prisoner of war issues. Most

noteworthy was work done during Col. Haughney’s tenure as MACV

staff judge advocate from July 1966 to July 1967. Haughney and his

legal staff promulgated the first procedural framework for classifying

combat captives using so-called Article 5 tribunals. Under that article

of the Geneva Prisoners of War Convention, a “competent tribunal” of

not less than three officers had to be used to determine if a person was

entitled to prisoner of war status. MACV Directive 20-5, Prisoners of

War-Determination of Eligibility, first issued in September 1966 and

updated in March 1968, both established and provided authority for a

procedural framework for Article 5 tribunals. The directive explained

that “the responsibility for determining the status of persons captured

by U.S. forces rests with the United States” and that no combat captive

or detainee could be transferred to the Vietnamese until “his status as a

prisoner of war or non-prisoner of war” was determined. Consequently,

a tribunal including at least one lawyer familiar with the Geneva

Prisoner of War Convention would hold a formal hearing to decide each

doubtful case. No Article 5 tribunal was required for persons who

“obviously” were prisoners of war, such as North Vietnamese Army or

Viet Cong regulars captured while fighting on the battlefield. An

33
Article 5 tribunal was needed only for a detained person whose legal

status was in doubt. This was often the case in Vietnam because rarely

did the Viet Cong wear a recognizable uniform, and only occasionally

did the guerrillas carry their arms openly. Additionally, some combat

captives were compelled to act for the Viet Cong out of fear of harm to

themselves or their families. Despite these complications, the tribunal

could still find that such a person was a prisoner of war. Or, it could

decide that the person was a “civil defendant” triable in the Vietnamese

courts or an innocent civilian who should be released. Detailed

guidance on conducting an Article 5 tribunal was contained in Annex A

of the directive, including rights of the detainee and counsel, voting

procedures, powers of the tribunal, and posthearing procedures. The

MACV staff judge advocate reviewed all tribunal decisions “to insure

there were no irregularities in the proceedings.”12 In addition to

pioneering work done in establishing Article 5 tribunals, MACV

lawyers spearheaded efforts establishing a records system identifying

and listing all prisoners of war. They also advised their Vietnamese

counterparts on the rights of captives to receive mail, medical attention,

and Red Cross visits.13

In the area of war crimes investigations, the lawyers at MACV

continued the work started by their predecessors, setting out detailed

written guidance on investigating and reporting war crimes.

Significantly, the command decided as a matter of policy that the

MACV staff judge advocate-as opposed to the provost marshal or any

subordinate headquarters legal officer-would oversee all war crimes

matters. Thus, by mid-1968, an updated MACV Directive 20-4,

Inspections and Investigations, War Crimes, required the reporting of

all war crimes committed by or against U.S. forces. All investigations

were to be coordinated with MACV lawyers, with technical assistance

furnished by qualified criminal investigators. To ensure that MACV

members understood what constituted a war crime, the directive listed

eighteen examples, including willfully killing, torturing, taking

hostages, maltreating dead bodies, pillaging or purposeless destruction,

compelling prisoners of war or civilians to perform prohibited labor,

and killing without trial persons who had committed hostile acts.

Finally, the directive placed special requirements on MACV members.

First, any service member having knowledge of an incident thought to

be a war crime was required “to make such incident known to his

commanding officer as soon as practicable.” Additionally, those

involved in “investigative, intelligence, police, photographic, grave

registration, or medical functions,” as well as those in contact with the

34
enemy, were required to “make every effort to detect the commission of

war crimes.” Finally, MACV Directive 20-4 was punitive, in that

disobeying it was a violation of the Uniform Code of Military Justice.

This underscored the command’s interest in the Law of War, but was

particularly significant because American law generally did not make

criminal a citizen’s failure to report criminal activity to law

enforcement authorities. This decision to penalize the failure to report a

war crime applied to all levels of command. One of the charges

preferred against Maj. Gen. Samuel W. Koster in 1970 was that he had

failed to report a high number of civilians killed at My Lai by soldiers

under his command. Although this charge and others were later

dismissed, Koster’s failure to obey MACV Directive 20-4 while

commanding the Americal Division was part of the legal basis for the

adverse administrative action against him.14

By the time American troop strength peaked in 1969, MACV

Directive 20-4 and other MACV directives contained a sufficient body

of law to define, prohibit, and provide for investigation of war crimes.

During this time, the most grievous breaches of the Geneva

Conventions were those committed by the enemy, and there were

several incidents where U.S. troops were murdered and their bodies

mutilated by the Viet Cong or North Vietnamese. The enemy policy of

kidnapping civilians and assassinating public officials resulted in

particularly vicious crimes. At the same time, American soldiers also

committed war crimes, and from 1965 to 1973 there were 241 cases

(besides My Lai) alleging war crimes committed by Americans. After

investigation, 160 of these were found to be unsubstantiated. Thirty-six

war crimes incidents, however, resulted in trials by courts-martial on

charges ranging from premeditated murder, rape, and assault with

intent to commit murder or rape to involuntary manslaughter, negligent

homicide, and the mutilation of enemy dead. Sixteen trials involving

thirty men resulted in findings of not guilty or dismissal after

arraignment. Twenty cases involving thirty-one soldiers resulted in

conviction. Punishments varied. While military law required that a

court convicting a soldier of premeditated murder must also impose a

punishment of confinement for life, sentences imposed for other

offenses depended on the facts and circumstances of each case. Thus, a

rape conviction invariably carried with it a dishonorable or bad conduct

discharge and one to ten years’ confinement. A conviction for

involuntary manslaughter or negligent homicide usually meant a

punitive discharge and some period of confinement at hard labor. In at

least one court case, however, a soldier convicted of involuntary

35
manslaughter received only an admonishment. And a sergeant found

guilty of cutting off the heads of two dead enemy soldiers and posing

for photographs with the bodies was sentenced only to a reduction in

grade.15

In the area of discipline and criminal law, MACV developed

criminal law policy in two major areas. First, it implemented a coherent

program for dealing with misconduct committed by MACV members

as well as U.S. civilians connected with the war effort. Second, MACV

judge advocates worked with other U.S. government agencies in

Vietnam in suppressing black-marketeering and similar irregular

practices.

In regard to command policy on controlling misconduct by MACV

members, basic guidance was contained in MACV Directive 27-6,

Legal Services and Legal Obligations in Vietnam, first issued on 16

June 1965 and later updated on 14 September 1968, and in MACV

Directive 27-4, Legal Services: Foreign Jurisdiction Procedures and

Information, 2 November 1967. These directives set out the

command’s policy on compliance with Vietnamese law, with the goal

of minimizing conflict between MACV troops and Vietnamese law

enforcement authorities.16 Thus, while acknowledging that all U.S.

troops had immunity from Vietnamese civil and criminal law, Directive

27-6 required compliance with Vietnamese law, “including traffic laws

and law pertaining to curfews, off-limits areas, and currency.” U.S.

personnel, whether military or civilian, “were to comply and

cooperate” with Vietnamese law enforcement authorities and “under

no circumstances... were to resist by force.”17

A particularly thorny legal policy issue was criminal activity by U.S.

civilians. Such misconduct fell into three categories: disorderly

conduct, abuse of military privileges, and black-market activities and

currency manipulation. In April 1966, at the request of the U.S.

ambassador, the MACV staff judge advocate prepared a staff study on

the ambassador’s authority over U.S. civilians in Vietnam. That study

concluded that the ambassador could issue police regulations for all

U.S. citizens in Vietnam if the regulations did not conflict with U.S. or

Vietnamese laws.18 The study also concluded that armed forces police

could be used to enforce those regulations. Civilians who violated

Vietnamese or American laws were punished using administrative

measures, such as withdrawal of military privileges and loss of

employment. The increase in serious crimes committed by U.S.

civilians, however, soon made criminal prosecutions appropriate. But

who would prosecute? Although some American laws have

36
extraterritorial application, there were really only two practical

possibilities: the U.S. military or Vietnamese civilian authorities.

While American military authorities could exercise control over

uniformed personnel using the Uniform Code of Military Justice or

MACV directives, their authority over civilians in Vietnam was

tenuous at best. Although Article 2 of the Uniform Code did permit the

courts-martial of civilians “accompanying an armed force in the field,”

that provision applied only “in time of war,” and it was not clear if the

fighting in Vietnam qualified as such. Additionally, even if U.S.

military operations did so qualify, criminal jurisdiction over civilians

extended only to those civilians accompanying U.S. forces “in the

field.” Consequently, while civilian employees of government

contractors engaged in military projects, war correspondents with

troops on combat missions, and merchant sailors unloading cargo in

U.S. Army ports might be subject to military criminal jurisdiction, the

more than 6,000 U.S. civilian employees of private contractors,

independent businessmen, and tourists in Vietnam were not subject to

the Uniform Code under any circumstances. In formulating a policy on

civilian criminal conduct, however, MACV lawyers found the

Vietnamese either unable or unwilling to prosecute these Americans.

First, as South Vietnam had been in continual combat since 1956, there

was considerable disorganization in the administration of justice. This

made prosecution difficult, particularly where legal proof was not

easily obtained, as in black-marketing and currency manipulation

cases. Second, Vietnamese judicial officials relied on fines and

forfeitures for a substantial portion of their income. If a case offered

little or no opportunity for financial return, the South Vietnamese had

little interest in prosecuting. This was particularly true with many

crimes committed by U.S. civilians; if the injured party was an

American or the U.S. government, any financial recovery would go to

them and not to the Republic of Vietnam.

As a result, the MACV staff judge advocate devised a two-pronged

approach to civilian misconduct. First, administrative sanctions were

meted out to punish and deter civilian wrongdoing. Withdrawing

privileges of a civilian to use the post exchange and commissary, or

denying him or her entry onto military bases along with notification to

the employer that this official action was being taken, meant that the

civilian offender would be returned to the United States immediately by

his or her employer.19 For example, the 34th General Support Group

had 1,200 contract aircraft maintenance personnel in Saigon in 1967.

Disciplinary problems resulted in termination of the employee by the

37
contractor. As a condition of employment, employees pledged to return

to the United States “by the most expeditious means possible”;

therefore, troublesome employees were at least out of the country.

Other than the loss of employment, however, return to the United States

did nothing to punish the offender. Moreover, if an employee refused to

leave Vietnam, American authorities could do little, other than ask the

Vietnamese to deport him.20 Consequently, this preference for

administrative sanctions to resolve civilian misconduct was

complemented with a second MACV policy allowing, when absolutely

necessary, military prosecutions of civilians accompanying U.S.

forces. With the approval of Ambassador Henry Cabot Lodge, a few

such civilian cases were prosecuted by U.S. Army, Vietnam, and 1st

Logistical Command, but this practice ceased in 1970 after the U.S.

Court of Military Appeals held that there was no military criminal

jurisdiction over civilians in Vietnam.21

To curb American criminal activity in Vietnam, MACV judge

advocates worked with the Irregular Practices Committee. Formed in

August 1967 and consisting of three U.S. embassy representatives and

the MACV staff judge advocate, the committee had no operational

resources. Rather, it coordinated the work of those elements of the U.S.

Mission—like the Military Assistance Command—that had resources

to suppress black-marketing, currency manipulation, and other illegal

activities adversely affecting the Vietnamese economy. Initially, the

committee focused on Vietnamese complaints about black-marketing

by U.S. forces. With the arrival of American combat units, the Army

and Air Force exchange system expanded dramatically. At the end of

1966, for example, there were 146 U.S. retail exchange outlets in

Vietnam with a net income of $160 million. A year later, there were 304

retail outlets. These exchange outlets sold soap, toothpaste, shoe polish,

and cigarettes. They also sold liquor, radios, televisions, expensive

stereo equipment, diamonds, and furs. Additionally, exchange

concessionaires who sold diamonds, furs, silks, watches, leather goods,

and other luxury items had virtually unlimited duty-free import

privileges.22 The Saigon government maintained that many of these

tax-free items were being sold to Vietnamese citizens, violating

Vietnamese customs and commerce laws, fueling inflation, and

injuring legitimate Vietnamese businessmen. The Irregular Practices

Committee not only investigated Vietnamese allegations of

black-marketing, but also formulated corrective action to curb it and

related criminal misconduct.23

38
Based on the committee’s recommendations, the U.S. ambassador

directed the implementation of an automated system for recording

dollar conversions and purchases, which led to more stringent

inspections of exchange concessionaire goods. MACV also identified

civilian abusers of military privileges and revoked their privilege cards.

MACV judge advocates assisted in promulgating new directives

identifying activities prohibited for U.S. military and civilian

personnel, contractors doing business in Vietnam at the invitation of the

United States, and all persons authorized to use exchanges, clubs, post

offices, and other U.S. military facilities. As illegal currency

transactions often went along with black market commodity sales,

MACV lawyers also provided advice concerning the Military Payment

Certificate program. After 1 September 1965, U.S. dollars were no

longer negotiable at U.S. facilities, and Americans were forbidden to

bring dollars into Vietnam.24 Rather, all U.S. troops were paid in

Military Pay Certificates, or “scrip,” which allowed U.S. dollars to be

withdrawn from the Vietnamese economy. Scrip, printed by the United

States and as freely negotiable as dollars, was used at all U.S. facilities.

Its use curbed illegal currency transactions because scrip could not

easily be converted into U.S. currency and because only authorized

personnel were permitted to hold scrip. The goal was to separate the

U.S. and Vietnamese monetary systems. This aim, however, was only

partially successful; Military Payment Certificates issued in 1965 were

replaced in 1968 and replaced again in 1969.

Although the Irregular Practices Committee’s original purpose was

to suppress black-marketeering, currency manipulation, and related

misconduct, the group’s composition naturally made it a clearinghouse

for a variety of policy issues. Thus, by 1970, the committee was

examining tax evasion by U.S. and Vietnamese nationals and the

appropriateness of exercising military criminal jurisdiction over U.S.

civilians and generally coordinating anticorruption efforts. It also

served as a point of contact for Saigon government officials seeking

assistance in criminal and civil matters. For example, in June and July

1970, the committee and Col. Lawrence H. Williams, the MACV staff

judge advocate, considered a request from the Vietnamese Ministry of

Finance for a list of all Vietnamese subcontractors or persons hired by

U.S. contractors to determine whether these contractors were

reporting income. They also responded to a Vietnamese complaint

that civilian contractors with no U.S. government affiliation were

being allowed on MACV charter flights and Air America flights

39
and discussed assistance to the Vietnamese to repatriate third country

national undesirables.25

Setting uniform criteria for reporting, investigating, processing, and

supervising claims in Vietnam was the last major area in which MACV

judge advocates formulated legal policy. The buildup of troops and

materiel from 1965 to 1969 meant an increase in claims for

compensation, and MACV lawyers designed and implemented a

well-organized and well-administered indemnification program to

compensate for losses resulting from U.S. government activity. This

promoted two important policy goals. First, fair and timely restitution

showed the Vietnamese that the U.S. government was interested in

justice and the welfare of Vietnamese citizens. Second, an effective

claims program supported the war against the guerrillas. Col. Prugh,

MACV staff judge advocate from 1964 to 1966, believed strongly that a

well-run claims program was one way to “create a climate favorable to

respect for law and order.” If the Vietnamese people saw that the law

conferred a benefit in compensating them for injuries caused by the

U.S. government, they would respect both the law and the government

that made it.26

Lt. Col. George R. Robinson, MACV claims judge advocate from

November 1964 to November 1965, was chiefly responsible for

implementing a fast and fair claims service during the early months of

the U.S. buildup. With division-level judge advocate service prior to

arriving in Vietnam, Robinson was an experienced officer.

Consequently, as new U.S. combat units arrived in Vietnam, Robinson

visited them to explain claims processing procedures, basic

Vietnamese government structure, and sources of aid for those injured

by combat action. In early 1965, Robinson spearheaded the revision of

MACV Directive 25-1, Claims, which governed the payment of claims

for noncombat damage. When reissued in May 1965, the new directive

was easier for nonlawyer unit claims officers to follow and included

trilingual (English, Vietnamese, and Chinese) claims forms and a

sample letter of condolence, in both English and Vietnamese, for use in

making a solatia payment. Such a payment or gift indicates sympathy or

compassion for serious personal injury or death, and MACV

headquarters encouraged unit claims officers to make it. As a result, a

solatium of value not exceeding $20, accompanied by the letter found

in MACV Directive 25-1, would be routinely made by a unit’s claims

officer in appropriate situations. Of course, the aggrieved party

eventually would file a claim and receive compensation for any

personal injury or loss. Until that claim was paid, however, the small

40
solatia payment was a tangible demonstration of official U.S. sympathy

for the South Vietnamese victim. Providing for solatia payments also

showed how the law could be used to enhance the Army’s image among

the local population, thus furthering the overall policy goal of winning

“hearts and minds.”27

The more difficult policy issue was the payment of combat-related

claims. Traditionally, the host country is responsible for such claims

but, at least initially, the Republic of Vietnam had no program to

compensate its citizens for injuries or damage suffered in combat

situations. In August 1965, for example, a U.S. Air Force B-57 bomber

returning from a combat mission crashed in the city of Nha Trang,

killing a number of civilians and destroying a great deal of property.

Viet Cong radio broadcasts accused the United States of criminal

recklessness, and this generated much bad feeling toward Americans.

Lt. Col. Robinson flew immediately to Nha Trang with two other

members of the MACV staff judge advocate’s office and began

accepting claims from Vietnamese civilians. While Robinson was

processing claims, however, an announcement from the Pentagon

stated that no compensation for this disaster could be paid because

damage resulting directly or indirectly from combat was not permitted

under the Foreign Claims Act. Robinson and Col. Prugh, however,

convinced MACV headquarters that payments to claimants would gain

the goodwill of the people. First, it would demonstrate to the

Vietnamese that a government can view itself as responsible for its bad

acts. Second, it would show that a person has a right to pursue a claim

for injury against the government, a concept alien to Vietnamese

culture. The result was that Defense Department contingency funds

were used to pay these claims. Similar claims situations resulted in

MACV’s recommending that the Foreign Claims Act be amended to

allow payment of certain claims indirectly related to the combat

activities of U.S. forces, and Congress made such a change to the law in

1968. As a result, claims filed after this date were payable if they arose

out of a military aircraft accident or malfunction that was indirectly

related to combat and occurred while the aircraft was preparing for,

going to, or returning from a combat mission. Consequently, claims

like those Robinson had handled in Nha Trang in August 1965 could

now be paid.28

MACV Advisory Program

Believing that “a successful counterinsurgency program” required

respect for law and order, and that developing such respect “would

41
increase the efficiency of the armed forces, deter subversive activities . . .

and promote loyalty to the Saigon government,” the MACV staff judge

advocate established an Advisory Branch in July 1965.29 Using the law

and lawyers to further the allied mission in Vietnam was a unique

approach, and by late 1965 the work done by the Advisory Branch

accounted for roughly 40 percent of the MACV staff judge advocate

total workload.30

At the Saigon level, the advisory effort was aimed at the Directorate

of Military Justice and other Vietnamese government agencies and

focused on improving such matters as budgeting, desertion control,

tables of organization and equipment, and administration of the court

and prison systems. But MACV lawyers also participated in

nongovernmental activities in Saigon as a way of informally

influencing Vietnamese lawyers, government officials, and other

policymakers. To strengthen his personal relationship with the Public

Prosecutor of Saigon, Col. Prugh taught him English two nights a week.

42

Figure 2. Organization of MACV Office of Staff Judge Advocate (1967)
Prugh also made contact with future Vietnamese lawyers when he

continued teaching the American jurisprudence classes started by

MAAG lawyers a few years earlier at the University of Saigon.31

Finally, Prugh organized the Law Society of Free Vietnam as a way to

foster personal associations and to expose the Vietnamese to “new

alternatives for dealing with legal problems,” with a view toward

improving their own legal institutions. Beginning with an evening

meeting on 5 May 1965, the Law Society held a series of meetings for

all Vietnamese lawyers, judges, law students, government officials,

and interested army officers, presenting “a sampling of American legal

ideas and attitudes to an influential segment of Vietnamese society in a

manner the Vietnamese could accept without resentment.” The first

meeting opened with a brief introductory talk titled “The Citizen’s Role

in Law,” followed by a question and answer session. Later Law Society

meetings featured panel discussions, mixed team debates, selected

motion pictures, and individual presentations on topics such as “Trial

by Jury” and “Judicial Review Procedures.” Initially, the Law Society

of Free Vietnam drew large and interested audiences from the

Vietnamese and American legal communities. As the war heated up,

however, it became increasingly difficult to assemble the society,

raising questions about its long-term impact.32

Outside Saigon, the Advisory Division’s field advisers, located in

each of the four corps areas, were the eyes and ears of the MACV staff

judge advocate, monitoring military discipline in South Vietnamese

units, the effectiveness of resources control, and the functioning of

South Vietnamese military courts and prisons.33 No two field advisers

had the same approach to their role, and activities varied according to

location and “to a great extent on the relationship between the military

lawyer and the U.S. commander for whom he worked.”34 Both I and II

Corps had field advisers from August 1965 until March 1973. On the

other hand, III Corps, centered on Saigon, and IV Corps, in the Mekong

Delta, had field advisers only intermittently for this period. Initially, the

field adviser in I Corps, the northernmost and farthest area from Saigon,

was located in Hue; after the Tet offensive of 1968, he moved to Da

Nang, when the Vietnamese military courts and prison moved there.

The II Corps adviser served in the largest corps area, comprising coastal

and highlands provinces. On the other hand, the III Corps adviser

stayed in Saigon where his work differed from the other advisers in that

he taught law courses at the University of Saigon law school.

The experiences of Capt. John T. Sherwood, first judge advocate

field adviser for II Corps, illustrate these advisers’ varied work. It was

43
shortly after Sherwood arrived in Nha Trang that the U.S. B-57 crashed

there. Sherwood spent several days with a committee of Vietnamese

citizens inspecting the damage to determine an equitable monetary

settlement. In addition, he conferred with the Nha Trang provost

marshal about the conduct of some members of the National Police who

were ineffective in preventing looting after the crash. And he

negotiated with a French-owned electric company in the city

concerning liability for property damage arising out of the incident.

Sherwood also traveled extensively during the time he served as field

adviser, from August 1965 to May 1966. In the two-month period of

August and September 1965, he taught military justice to Vietnamese

Regional Forces and Popular Forces in Qui Nhon; visited the

Vietnamese Military Academy, Command and General Staff College,

and U.S. Operations Mission province representative in Da Lat; and

attended an oath of allegiance ceremony at Ban Me Thuot in which 300

dissident Montagnards pledged fealty to the Saigon government.

Sherwood also inspected Regional Forces and Popular Forces training

at Tuy Hoa, observed pacification efforts in Phu Yen Province and,

after conferring with the U.S. command on military justice matters,

redrafted a provost marshal directive on confiscating Military Payment

44

Col. George S. Prugh, right, MACV staff judge advocate, presents

the Air Medal to Capt. John T. Sherwood, Jr., April 1966. Prugh

established a unique advisory program in which Army lawyers like

Sherwood advised their Vietnamese counterparts on ways to

improve their legal facilities and programs.
Certificates from Vietnamese employees of U.S. installations. In

addition to advising, Sherwood reviewed a treatise on Vietnamese law

written in English by a Vietnamese military lawyer and represented two

U.S. soldiers charged with rape, attempted rape, robbery, and assault at

a pretrial investigation. He also traveled to Bangkok to discuss the legal

status of U.S. personnel visiting Thailand and the feasibility of a legal

advisory program in that country. Finally, he made three parachute

jumps with the first Montagnards ever to be trained for airborne

operations and did a detailed study of the methods used by U.S. units in

II Corps for handling captured enemy personnel.35

Lawyering at U.S. Army, Vietnam

The mission of the USARV staff judge advocate was to provide full

legal services for the USARV commander, deputy commander, and

staff, as well as for all major subordinate commanders as needed. The

USARV staff judge advocate also “exercised staff supervision over all

judge advocate activities in the U.S. Army, Vietnam.”36 This meant

45

Figure 3. Legal Organization of USARV Ofice of Staff Judge Advocate

(December 1967).
that he monitored legal operations in all Army organizations in

Vietnam, providing guidance and assistance. As a practical matter, the

staff judge advocate at USARV also acted as a higher headquarters for

personnel and other administrative matters relating to Army lawyers in

Vietnam.

Organization of Legal Services at U.S. Army, Vietnam

When organized in 1965, the USARV staff judge advocate’s office

had five military lawyers-one colonel, two majors, and two captains. It

expanded rapidly, however, and between 1966 and 1969, there were no

fewer than ten lawyers in the headquarters office. Initially, the

operation was divided into two sections. A Military Affairs Division,

with Legal Assistance, Claims, and International Affairs Branches,

handled all noncriminal legal matters. A Military Justice Division, with

Trial, Inferior Courts, and Review Branches, provided all criminal law

support. This two-part framework had been the norm for staff judge

advocate operations since World War II. But when Col. John Jay

Douglass replaced Col. William B. Carne as USARV staff judge

advocate in July 1968, Douglass decided that this traditional way of

46

Figure 4. Legal Organization of USARV Office of Staff Judge Advocate

(September 1968).
providing services was no longer suitable because “it didn’t reflect how

legal work was being done” at USARV. For example, the Military

Affairs Division, located at USARV headquarters at Long Binh, was

responsible for all claims activities in Vietnam. Yet its foreign claims

operation, with its downtown Saigon location, operated with great

autonomy. So it made sense to remove the claims function from the

Military Affairs Division and establish a separate Claims Division.

Once claims were removed, it was a short step to removing legal

assistance as well. As Douglass later noted, this new system was the

same one he had used while serving as staff judge advocate at Fort

Riley, Kansas.37

The new office at USARV headquarters had four divisions-Military

Justice, Civil Law, Claims, and Legal Assistance. The Military Justice

Division prosecuted and defended all general courts-martial and

advised nonlawyers prosecuting and defending special courts-martial.

After the enactment of the Military Justice Act in 1968, the division

expanded to provide lawyers as trial and defense counsel in special

courts-martial. USARV judge advocates practicing criminal law also

arranged for the attendance of witnesses from all courts-martial

jurisdictions in Vietnam when these were required in the United States

47

Judge Advocate General Maj. General Kenneth D. Hodson, center, visits Vietnam

in November 1968. With him are, left to right, Col. Thomas H. Reese, Staff Judge

Advocate, 1st Logistical Command; Col. John J. Douglass, Staff Judge Advocate,

USARV; Lt. Col. Robert Clarke, Chief, Personnel, Plans & Training Office, Office of

the Judge Advocate General; and Col. Paul Tobin, Military Judge, U.S. Army Trial

Judiciary, Vietnam.
or for attendance at other foreign trials. The USARV Civil Law

Division interpreted and advised on the applicability of laws,

regulations, and directives concerning the status of military and civilian

members in noncriminal matters. It also reviewed investigations

concerning the post exchange system, clubs, messes, security

violations, postal losses, reports of survey, elimination boards, and

collateral investigations involving aircraft accidents. It also advised on

procurement matters and real estate and provided counsel for

respondents before administrative elimination boards. The Claims

Division, subdivided further into military personnel claims and foreign

claims branches, adjudicated all military personnel claims filed by

soldiers, sailors, airmen, and Marines and all foreign claims filed by

Vietnamese and other foreign nationals. Finally, the Legal Assistance

Division offered the full range of legal advice to individual soldiers.

Supporting Douglass and the twelve military attorneys on his staff were

one warrant officer, seven enlisted personnel, one civilian court

reporter, and one Vietnamese translator-interpreter.

From 1965 to 1969 about sixty judge advocates served at USARV

headquarters. Staff judge advocates during those years were Cols. Dean

R. Dort (1965-1966), Hal H. Bookout (1966-1967), William B. Carne

(1967-1968), Douglass (1968-1969), and Wilton B. Persons, Jr.

(1969-1970). Persons later served as the Judge Advocate General from

48

USARV staff judge advocate’s office at Long Binh, July 1968. While the hours were

long, the facilities at USARV were not much different from those in stateside Army

legal offices.
1975 to 1979. Other notables serving at USARV during this period

were Lt. Col. Lloyd K. Rector and Maj. John L. Fugh. Rector later

served as a judge advocate brigadier general and Fugh was the Judge

Advocate General from 1991 to 1993. Additionally, many lawyers who

were not members of the Judge Advocate General’s Corps joined the

corps in practicing law in Vietnam. A number of licensed attorneys had

been drafted and were serving in the enlisted ranks. These men often

became legal clerks and, as the demand for lawyers increased,

eventually practiced law as legal assistance officers. More than a few

licensed lawyers also served in Vietnam in other Army branches such

as the Transportation Corps or Adjutant General’s Corps. Unlike the

Judge Advocate General’s Corps, which required a four-year

commitment, other Army branches had a two-year obligation. Many

lawyers with Reserve Officer Training Corps obligations chose the

two-year route, hoping that they would serve their two-year obligation

in Europe or in the United States. When these non-Judge Advocate

General’s Corps lawyers arrived in Vietnam, however, they discovered

that judge advocates needed their legal skills, particularly after the

Military Justice Act of 1968 took effect on 1 September 1969. For his

part, Col. Persons asked the USARV G1 to detail all incoming licensed

attorneys to his headquarters office. These non-judge advocate lawyers

were then distributed as needed to Army units in Vietnam.

Military Justice

More than anything else, practicing law at USARV, particularly

after passage of the Military Justice Act in 1968, meant prosecuting and

defending courts-martial. When Congress replaced the separate Army

and Navy court-martial systems with a “uniform” code of military law

in 1950, it required that courts-martial mirror, “so far as...

practicable,” civilian criminal trials in U.S. district courts. A decade

later, Senator Samuel J. Ervin of North Carolina and other reformers

went further, criticizing “legal decisionmaking by laymen” in the

military justice system and calling for lawyer involvement at

courts-martial.38

Satisfied with the status quo, the services initially resisted. By 1968,

however, opposition had softened and, with the support of Army Judge

Advocate General Maj. Gen. Kenneth J. Hodson, Congress enacted

far-reaching changes through the Military Justice Act.39 Chief among

them was creation of the military judge position, replacing the “law

officer,” and giving the new position duties and powers similar to those

of a civilian judge. These included the power to try a case “by military

49
judge alone,” the authority to call a

court into session without the

attendance of the members for the

purpose of disposing with various

motions, ruling on pertinent legal

matters, and arraigning the

accused. All of these issues had

previously been decided by the

panel members. The independence

of the new military judge position

was strengthened by the act’s

requirement that military judges

be appointed from a field judiciary

under the command of the Judge

Advocate General. Although the

Army had previously created a

field judiciary without this

legislative basis, the new act

required the presiding judge to be

independent of the convening

authority whereas, before, the law

officer could have been a member of the accused’s unit and thus subject

to the same commander. Finally, the independence of military judges

was made even more apparent by regulations allowing them to wear

robes and to be addressed as “Your Honor.”40

The second major change to the Uniform Code was the new role of

lawyers at special courts-martial. The amendment did not require

lawyers at this level of court, but it did provide that the accused was to

“be afforded the opportunity to be represented” by a lawyer “unless

counsel having such qualifications cannot be obtained on account of

physical conditions or military exigencies.” Additionally, the 1968 act

prohibited the imposition of a punitive discharge at a special

court-martial unless a lawyer counsel defended the accused and a

military judge was detailed to the court. Commanders who had long

considered special courts as courts of discipline over which they

exercised considerable control as convening authorities discovered not

only that the rule of law now favored justice over discipline but also that

their control had been greatly reduced.41

The implementation of the Military Justice Act required more

lawyers to serve as counsel and more lawyers to serve as judges. But

just how many attorneys? The Judge Advocate General advised the

50

Maj. Gen. Kenneth J. Hodson, the first

Judge Advocate General to visit

Vietnam. Hodson was the principal

architect of the Military Justice Act of

1968, which revolutionized the practice

of military justice in the Armed Forces.
Army Staff that 401 new lawyers were needed. Apparently, this

number was arrived at based on an estimate that 400 new attorneys were

needed, with one added to give legitimacy. That is, knowing that the

round number 400 would be viewed with suspicion, the number 401

was presented as the needed number.42 Implementing the new changes

to the code also required a new Manual for Court-Martial, and the 1969

revised edition was published in time for the 1 September 1969

effective date of the new act. Finally, the need for special court-martial

judges resulted in the addition of both full-time and part-time judges as

well as the establishment of a supervisory judge program.

Implementing the Military Justice Act brought particular challenges

for USARV judge advocates practicing criminal law. Prior to the

effective date of the Military Justice Act, the Uniform Code had been

interpreted to give virtually every battalion commander the authority to

convene a special court-martial. To promote uniformity and better

manage legal assets, both Col. Douglass and Col. Persons tried

consolidating special courts-martial at the brigade level. They were

mostly successful, but the 1st and 4th Infantry Divisions “held out to the

bitter end” and declined to follow their guidance.43 Second, Douglass

and Persons had supervisory responsibility for some thirteen general

court-martial jurisdictions, and the new Military Justice Act meant a

huge influx of new attorneys. Handling so many convening authorities,

and the cases generated by them, was a tremendous workload. Finally,

although U.S. units continued offensive operations, the political

commitment had been made to begin withdrawing American units from

Vietnam. As a result, the third challenge facing USARV judge

advocates was taking responsibility to “clean up” remaining cases. For

example, the 9th Infantry Division was going home in 1969, and all its

cases-some tried, some tried but not transcribed, some tried and

transcribed but still needing a posttrial review and convening authority

action-had to be taken over by another jurisdiction. The USARV staff

judge advocates and their lawyers were responsible for ensuring the

orderly “hand off” of military justice actions from departing units to the

U.S. forces remaining in Vietnam.44

U.S. Army, Vietnam, and its subordinate units tried roughly 25,000

courts-martial between 1965 and 1969. There were 9,922

courts-martial in Vietnam in 1969, at the peak of the U.S. buildup, of

which 377 were general courts, 7,314 were special courts, and 2,231

were summary courts. Similarly, a large number of Article 15s were

administered in Vietnam between the years 1965 and 1969—66,702 in

1969 alone. Of the thousands of courts-martial, a large number were for

51
such military offenses as absence without leave, disobedience of

orders, and misbehavior of a sentinel. Some were prosecutions for

assault and for larceny. Although there were few illegal drug

prosecutions in 1966, a continued rise in the drug-use rate by U.S.

troops translated into more and more criminal prosecutions. By 1967,

marijuana cigarettes were selling for twenty cents each in Saigon and

one dollar each in Da Nang. Opium was one dollar per injection, and

morphine five dollars per vial. The result was that by 1969 roughly 20

percent of the special courts tried in Vietnam were for drug-related

offenses.45

Two of the best known criminal incidents occurring between 1965

and 1969 were the killing of Vietnamese civilians by soldiers at My Lai

in 1968 and the murder of an alleged enemy agent by Special Forces

troops near Nha Trang in 1969. On 16 March 1968, members of

Company C, 1st Battalion, 20th Infantry, an element of the Americal

Division, murdered some 350 innocent Vietnamese civilians at the

small village of My Lai in southern I Corps. Outside of the division

there was no official knowledge of the atrocity until April 1969, when a

veteran who had heard of the killings wrote to Gen. Westmoreland, then

Army chief of staff, describing his suspicions and requesting an

inquiry. The Army’s Criminal Investigation Division determined that

1st Lt. William L. Calley and twelve men under his command were

chiefly responsible for the killings. In September 1969, Calley was

charged with the murder of 109 Vietnamese civilians, and in November

that same year, a second soldier, S.Sgt. David Mitchell, was charged

with multiple counts of murder and assault with intent to commit

murder. Eleven other soldiers were also charged with murder.46

Of the thirteen men charged, only Calley was convicted.

Proceedings against six accused were dismissed for insufficient

evidence. The rest were tried by court-martial and found not guilty. The

first court-martial proceeding was against S.Sgt. Mitchell. The military

judge was Lt. Col. Robinson, who had served as MACV claims judge

advocate from 1964 to 1965. In a controversial decision, Robinson

ruled that four prosecution witnesses would not be permitted to testify

unless the defense received access to their previous testimony before a

U.S. House of Representatives subcommittee investigating the My Lai

atrocity. When the congressman running the subcommittee refused to

release relevant testimony, the prosecutor in the Mitchell court-martial

no longer had any witnesses who could testify with certainty that

Mitchell had killed civilians at My Lai. The jury acquitted Mitchell of

all charges.47

52
Of the twelve Americal Division officers accused of covering up the

atrocity, only Calley’s company commander, Capt. Ernest L. Medina,

and his brigade commander, Col. Oran K. Henderson, ever came to

trial. Both were court-martialed and both were acquitted. Charges

against Gen. Koster, the division commander, for failing to report the

killings to MACV headquarters were also were dismissed. Secretary of

the Army Stanley R. Resor, however, punished Koster administratively

by demoting him from major general to his permanent grade of

brigadier general and revoking his award of the Distinguished Service

Medal.48 On 29 March 1971, Calley was found guilty of premeditated

murder by a general court-martial convened at Fort Benning, Georgia,

and was sentenced to life imprisonment. Three days later, the White

House interfered in the judicial process by announcing that President

Richard M. Nixon would personally review Calley’s case before the

sentence took effect and that, in the interim, Calley would be under

house arrest. On 20 August 1971, the commanding general, Third

United States Army, took action as the general court-martial convening

authority. He approved the findings of premeditated murder against

Calley, but reduced his sentence to twenty years’ confinement. In April

1974, after both the Army Court of Military Review and the U.S. Court

of Military Appeals had rejected Calley’s appeals and had affirmed the

findings and sentence, the new Secretary of the Army, Howard H.

53

The courtroom at the 23rd Infantry Division (Americal), Chu Lai, 1970. Nothing

could be more utilitarian in design or appearance.
Callaway, reduced his sentence further to ten years. This made Calley

eligible for parole after six months and, after serving a short time in jail

at Fort Leavenworth, Kansas, Calley was paroled in November 1974.49

While the war crimes committed at My Lai caused much

consternation and soul-searching among Americans generally, the

ramifications of this tragedy on the Army were just as far-reaching. The

Peers Inquiry, so-named because its senior member was Lt. Gen.

William R. Peers, thoroughly investigated the murders. Peers and his

team examined the causes of the incident, the thirty individuals

involved, and the subsequent cover-up at the Americal Division. For

Army lawyers, the Peers Report finding with the most significant legal

ramification was the determination that inadequate training in the Law

of War was a contributory cause of the killings. Particularly damning

was the report’s finding that Law of War training in Calley’s unit was

deficient in regards to the proper treatment of civilians and the

responsibility for reporting war crimes.

Almost immediately, senior members of the Judge Advocate

General’s Corps began looking for ways to correct this deficiency. In

May 1970, the regulation governing Law of War training was revised

so that soldiers received more thorough instruction in the Hague and

Geneva Conventions. Significantly, the revised regulation required

that instruction be presented by judge advocates “together with officers

with command experience preferably in combat.” This ensured that the

training had a firm grounding in real-world experience while also

demonstrating that instruction in the conventions was a command

responsibility.

Of greater importance was the initiative taken by retired Col.

Waldemar A. Solf. In 1972, while serving as the chief of the

International Affairs Division at the Office of the Judge Advocate

General, Solf suggested that the Army propose to the Defense

Department that it create a DoD-level Law of War program. This idea

was wholeheartedly endorsed by Gen. Prugh, who was then serving as

the Judge Advocate General. As a result of Solf’s recommendation,

DoD Directive 5100.77, promulgated by the secretary of defense on 5

November 1974, not only established a unified Law of War program for

the armed forces, but also made the Army Judge Advocate General’s

Corps the lead organization in implementing it.50

In the so-called Green Beret Affair, members of the U.S. Army

Special Forces allegedly murdered a South Vietnamese double agent

named Thai Khac Chuyen in June 1969. The New York Times reported

that the killing had been done at the suggestion of a Central Intelligence

54
Agency agent in Nha Trang. The investigation into the murder

implicated the commander of the 5th Special Forces Group, Col.

Robert B. Rheault, and seven members of his command.51 Angry that

American soldiers had taken the law into their own hands, and

believing that Rheault had lied to him, Gen. Creighton W. Abrams, the

MACV commander, expressed a desire to have MACV prosecute the

case. Col. Bruce C. Babbitt, the MACV staff judge advocate, however,

convinced Abrams that court-martial proceedings were the service

component’s rather than the unified command’s responsibility.

USARV, Babbitt advised, should conduct the investigation and decide

whether criminal trials were warranted.52 As USARV judge advocates

and Army investigators gathered evidence in the case, the Central

Intelligence Agency was uncooperative. It denied any involvement in

the murder but also refused to provide classified documents about

Special Forces operations in Vietnam requested by the defense lawyers.

Recognizing that publicity could only assist their Special Forces

clients, both the military and civilian defense attorneys issued press

releases and gave interviews. Capt. J. Stevens Berry, a II Field Force

judge advocate defending one of the Special Forces officers, appeared

on network television two nights running, alleging that the

government’s refusal to give him access to classified documents was

55

Defense counsel in the ”Green Beret Affair," in which Special Forces personnel

were accused of murdering a South Vietnamese double agent, 1969. After the New

York Times reported that the killing had been done at the suggestion of a CIA

agent, there was considerable public interest in the case. From left to right: Capt.

J. William Hart, XXIV Corps; Capt. Myron D. Stutzman, USARV; and Capt. J.

Stevens Berry, II Field Force.
harming the defense and that the Army’s prosecution of “those gallant

men” was motivated by Abrams’ anger rather than justice. Members of

Congress were sharply critical of the Army’s actions. Congressman

Peter W. Rodino of New Jersey called the prosecution “one of the

weirdest—and probably cruelest—trials in the military history of this

nation.”53 When the Central Intelligence Agency, with the approval of

President Nixon, refused for the final time to cooperate in the

investigation, Secretary Resor decided that a fair trial would be

impossible. He yielded to the wishes of Secretary of Defense Melvin R.

Laird, Gen. Westmoreland, and others in dismissing all charges against

Rheault and the other soldiers.54

Civil Law and Claims

The Civil Law Division prepared opinions and advised on the

interpretation and application of laws, regulations, and directives.

Subjects handled by the division included issues involving the status of

USARV military and civilian personnel (except criminal matters),

military security, operations, logistics, and civil affairs. Lawyers in the

Civil Law Division reviewed for legal sufficiency investigations

concerning post exchanges, clubs and messes, security violations, and

postal losses; reports of survey; elimination boards; and collateral

investigations involving aircraft accidents. The division also arranged

for the travel of soldiers from Vietnam to the United States when these

persons were needed as witnesses in U.S. legal proceedings, issued

legal opinions on international law, and monitored Geneva

Conventions lectures to USARV troops. It provided counsel for

respondents at administrative elimination boards and advised on

procurement law matters. Finally, the Civil Law Division was also the

focal point for inquiries from the Litigation Division of the Judge

Advocate General’s Office in the Pentagon. In February 1969 for

example, the division compiled an investigative report in connection

with a lawsuit filed by United Fruit Company against the United States.

The U.S. Army had chartered a United Fruit ship to transport cargo to

Vietnam. When the ship arrived at Qui Nhon in December 1966, an

Army tugboat collided with the ship, causing damage in the amount of

$32,000. United Fruit sued the United States for this loss, and the Civil

Law Division provided the investigative report needed to defend

against the suit or settle it.55 Similarly, in November 1969 the division

was asked by the Litigation Division in Washington to locate the 173d

Airborne Brigade’s daily staff journal or pertinent unit history for 31

July 1968. While on patrol, a sergeant in the unit, Donald W. Morrison,

56
discovered $150,000 in a container in an unoccupied underground

cave. He turned the money over to his company commander, but later

asked that it be returned to him. His request was refused. Having since

left Vietnam and been discharged from the Army, Morrison sued the

United States for the return of “his” money. Apparently, the Civil Law

Division located the requested information. Morrison’s suit, however,

was dismissed by the U.S. district court since abandoned property

found by a soldier during combat operations becomes the property of

the United States.56

The Army had single-service responsibility for processing claims in

favor of or against U.S. forces in Vietnam. As MACV had ceased its

claims processing by 1966, USARV judge advocates were solely

responsible for administering a claims program in Vietnam. The

number of claims for damaged or destroyed possessions, equipment,

and clothing grew rapidly as the Viet Cong and North Vietnamese

stepped up their attacks on U.S. forces and as American operations

intensified. Similarly, the buildup of American forces in Vietnam

brought with it increased claims by Vietnamese nationals for personal

injury and property damage. The impact of heavy military truck traffic

on a people accustomed to the bicycle, small car, and animal-drawn

wagons easily led to traffic chaos and many claims.57 By the end of

1969 the number of claims filed and the resulting backlog were

significant.

The USARV commander had authority to create two foreign claims

commissions with a monetary jurisdiction up to $15,000 each and

twelve one-man commissions with a monetary jurisdiction up to $1,000

each. An award in excess of $5,000 was subject to approval by the

appointing authority, and the USARV staff judge advocate was

delegated by the USARV commander to act for him in claims

matters.58

Although USARV legal operations were located at Long Binh, the

Foreign Claims Division was housed across the street from the National

Assembly building in downtown Saigon. This greatly increased access

for Vietnamese claimants and meant that the USARV claims judge

advocates were located near their Saigon counterparts. As claims

resulting from combat activities were handled by the Vietnamese under

the Military Civic Action Program while the USARV Foreign Claims

Division paid noncombat-related claims, a close working relationship

developed between the Vietnamese and Americans. Forms and

procedures, modeled somewhat along the lines of the U.S. noncombat

claims program but less formal and more streamlined, were

57
implemented by the Vietnamese for the payment of claims that the

USARV judge advocates could not handle. The line between combat

and noncombat claims was often difficult to draw, but since in almost

every case there were innocent victims needing relief, the Vietnamese

and Americans worked together so that compensation was available

regardless of cause.59

Maj. Leonard G. Crowley’s experiences illustrate claims work done

by USARV. Crowley, one of a handful of judge advocates to serve two

twelve-month tours in Vietnam, was chief of the USARV Foreign

Claims Division during his first tour from March 1969 to April 1970.

With responsibility for handling all tort claims by foreign nationals

against U.S. military forces in Vietnam, Crowley had four captains

assisting him in downtown Saigon, where he had his office.

Additionally, one captain under his supervision ran a satellite claims

program in Da Nang. Crowley also managed thirty-five U.S. military

and Vietnamese civilian clerks and translators.

Most of the noncombat claims were for damage arising out of traffic

accidents, often involving collisions between 2 1/2-ton or “deuce and a

half” trucks and motorbikes, bicycles, or pedestrians. Although most of

58

Lt. Col. James D. Clause (far left), MACV SJA Advisory Division, and Maj. Leonard

G. Crowley (far right), USARV SJA Foreign Claims Division, receive the

Vietnamese Justice Medal (Second Class) from Minister of Justice Le Van Thu

(second from left) in Saigon ceremonies in 1970. The decoration was Vietnam’s

highest judicial honor for foreigners; only a few judge advocates received it.
the claims were for negligent acts committed by U.S. forces, Crowley’s

operation paid claims for intentional acts, too. A farmer would be paid

the Vietnamese piaster equivalent of $1,000 for his dead male water

buffalo if it had been used for target practice by soldiers passing by on

patrol. This amount, roughly equivalent to the amount paid for

wrongful death of a woman or child, was increased if the dead water

buffalo was a female carrying a calf. If the farmer butchered the water

buffalo and ate it, then USARV claims judge advocates deducted

salvage value from the monies paid.60

One of the most interesting claims handled by the USARV Foreign

Claims Division during this period involved the Green Beret Affair.

While criminal action was pending against Col. Rheault, the widow of

the victim appeared at Maj. Crowley’s office, accompanied by her

Vietnamese attorney. The dead man’s employment contract provided

that if he was missing for more than sixty days in connection with his

duties, he was presumed to be dead and a death gratuity equal to one

year’s salary was payable to his next of kin. His widow now sought

these monies. The victim’s body, which had apparently been disposed

of at sea, was never located, and the Special Forces command admitted

no complicity. After having the widow sign a release absolving the

United States of further liability for the death of her husband, Major

Crowley personally delivered $6,472 in piasters to her-three times her

missing husband’s salary. The widow later filed a much larger

wrongful death claim against the United States but, as Crowley had

made the widow’s attorney sign his name as a witness on the release

form before paying her the gratuity, this rebutted her claim that she had

not understood the significance of signing a release.61

Lawyering in the Field

Each major combat and support unit had its own legal staff. At the

beginning of the intervention, the Army’s Table of Organization and

Equipment authorized five lawyers in a division: one lieutenant

colonel, two majors, and two captains. A division deployed in Vietnam,

however, might be overstrength one or more judge advocates.

Additionally, non-judge advocate attorneys often supplemented a staff

judge advocate’s operations, particularly after the passage of the

Military Justice Act in 1968, when more lawyers were needed. For

example, although the 1st Cavalry Division was authorized only five

attorneys, its staff judge advocate had some fifteen attorneys in 1969,

roughly half of whom were not members of the Judge Advocate

General’s Corps.62

59
From 1965 to 1969 more than 350 judge advocates served at units

other than Headquarters, MACV, and Headquarters, USARV. Combat

units with assigned military lawyers included: 173d Airborne Brigade;

196th and 199th Infantry Brigades (Light); 1st Brigade, 5th Infantry

Division (Mechanized); 5th Special Forces Group; Task Force

OREGON; 1st, 4th, 9th, 23d, and 25th Infantry Divisions; 1st Cavalry

Division (Airmobile); 3d Brigade, 82d Airborne Division; 101st

Airborne Division; XXIV Corps; and I and II Field Forces, Vietnam.

Support units with assigned judge advocates included: 1st Logistical

Command and its four support commands; 1st Aviation Brigade; 1st

Signal Brigade; 29th Civil Affairs Company; 525th Military

Intelligence Group; 124th and 125th Transportation Commands; The

Support Troops, Vietnam; U.S. Army Engineer Command and U.S.

Army Engineer Troops (Provisional); and U.S. Army Procurement

Agency.

The experiences of Army lawyers at the 173d Airborne Brigade, II

Field Force, 1st Logistical Command, 101st Airborne Division, and

U.S. Army Trial Judiciary, Vietnam, illustrate lawyering “in the field”

from 1965 to 1969.

173d Airborne Brigade

This 5,000-man independent brigade arrived in III Corps from

Okinawa in May 1965, commanded by Brig. Gen. Ellis W. Williamson.

Accompanying it were two judge advocates, Capts. Raymond C.

McRorie and Charles A. White, Jr. Over the next year, they provided

the legal advice and support needed by the command group and the

brigade’s soldiers, including legal assistance, claims, and military

justice. Living and working conditions were Spartan. Capts. McRorie

and White shared a General Purpose, Medium, tent. This heavy

olive-drab canvas structure, approximately 30 feet long and 15 feet

wide, was designed to sleep twenty soldiers or so. McRorie and White,

however, used their tent differently: they slept on cots in the middle

third of the tent and set up their office in the front third. The courtroom

was in the back third.

The 173d Airborne convened only special courts-martial, and Gen.

Williamson appointed two court panels. One remained at brigade

headquarters at Bien Hoa Air Base to handle discipline in the rear. The

other was with the forward-deployed brigade elements farther north.

Misconduct ranged from aggravated assault and drunkenness to

disobedience of orders and absence without leave. Punishments usually

60
were forfeitures and reductions, as a sentence to confinement meant the

soldier had to be shipped to the stockade in Okinawa. As some viewed

returning to Okinawa—even to the stockade—as preferable to

conditions in Vietnam, most sentences did not include confinement.

Under the Uniform Code of Military Justice at the time, lawyer

participation in special courts was not required. This meant that Capt.

McRorie advised the president of the court and the nonlawyer

prosecutor on court procedure and military law. Capt. White counseled

the nonlawyer defense counsel. Similarly, when nonjudicial

punishment was administered under Article 15, McRorie counseled the

command and White advised the accused of his rights. As other

American combat units arrived in III Corps, White also served as

defense counsel at pretrial investigations involving soldiers from those

units where no judge advocates were available.

McRorie and White also did the full range of legal assistance and

handled both military personnel claims and foreign claims. They also

made solatium payments. Additionally, both lawyers participated in

civil affairs activities, handing out wheat and clothing to the

Vietnamese. Capt. White also volunteered to work as an operations

officer, pulling a regular shift in the brigade operations shop.

Additionally, Gen. Williamson’s unhappiness with awards processing

in his brigade caused him to shift this duty from the brigade adjutant to

McRorie and White. White interviewed soldiers and assembled the

award packet resulting in the award of the Medal of Honor to Sgt. Larry

S. Pierce, who sacrificed his life when he threw himself onto an

exploding antipersonnel mine, saving the lives of his men.63

After the departure of McRorie and White, judge advocates

continued serving at the 173d, including Capt. Raymond Cole

(1966-1967), Maj. Louis F. Musil and Capts. Robert A. Demetz and

John D. O’Brien (1967-1968), and Maj. Paul H. Ray and Capts. Peter

M. Davenport and L. Dee Oliphant (1968-1969). Like most units, the

173d used nonlawyer officers in courts-martial, even after the effective

date of the Military Justice Act of 1968. Thus, Capt. Raymond T.

Ruppert, a military intelligence officer who would only later serve in

the Judge Advocate General’s Corps, was a prosecutor in special

courts-martial in September 1969. His defense counsel opponent was a

judge advocate.64

61
II Field Force

The II Field Force, a corps-level

headquarters formed in Vietnam in March

1966, had operational control of several

divisions and numerous nondivisional units.

Its area of operations included Saigon and

therefore the most heavily populated areas of

Vietnam. Lawyering at II Field Force was no

different from that done at other combat

units in that the assigned judge advocates

provided a full range of legal services to both

the command group and the soldiers. Judge

advocate operations in March 1968 provide a

good illustration of how lawyering was done

at II Field Force-at least prior to the passage

of the Military Justice Act. Although

authorized six lawyers, II Field Force had

only four: Lt. Col. Irvin M. Kent, Maj. Jon N.

Kulish, and Capts. Ned E. Felder and Herbert

Green. Kent, who had service as an infantry

officer in World War II and later was a

civilian attorney on the prosecution staff at

the Nuremberg War Crimes Trials, served as

staff judge advocate. Kulish, a former armor and ordnance officer, was

the deputy staff judge advocate as well as the chief of international

affairs and legal adviser to units located around the headquarters at

Long Binh. Felder, a former Finance Corps officer who had arrived in

Vietnam in 1966 with the lead elements of the 4th Infantry Division,

was trial counsel for general courts and the claims officer. Green, who

had entered the Army directly from civilian life, was the defense

counsel and legal assistance officer.

The staff judge advocate, deputy staff judge advocate, and the other

lawyers regularly traveled by helicopter to outlying bases of II Field

Force. Such trips had many purposes. On 18 March 1968, for example,

Lt. Col. Kent traveled to a base camp to investigate a soldier’s

complaint that his right to speedy trial had been violated by undue delay

in the disposition of criminal charges against him. After discussing the

issue with the unit commander, Kent also reminded him that claims for

damage to personal property caused by hostile action were payable and

left forms for the filing of such claims for distribution to unit personnel.

When finished with his command advice, Kent set up shop with his

62

Col. Irvin M. Kent, II Field

Force staff judge advocate,

1968-1969. Having twice

been wounded while fighting as a platoon leader and

rifle company commander

in France in World War II,

Kent understood the challenges faced by combat

commanders in Vietnam—-and used his legal

skills to enhance mission

success.
“portable office,” an old, battered briefcase containing interview cards,

forms for wills and powers of attorney, income tax forms, and absentee

voter materials. Kent and the other lawyers always took the legal

assistance kit with them on any journey, as every trip away from

headquarters was also a legal assistance trip. On this particular visit,

Kent assisted five soldiers with federal income tax questions about

combat pay exclusion, did two powers of attorney in connection with

settling an insurance claim and a real estate transaction, and advised

two soldiers on how to contact a stateside lawyer for assistance in

divorce proceedings. When he returned to II Field Force headquarters

that afternoon, Kent advised on a prisoner of war question. A wounded

Vietnamese, present for treatment at a U.S. medical facility, had no

identification. He denied being a Viet Cong but admitted that he was

avoiding the Vietnamese armed forces draft. As there was no evidence

he had committed a hostile act, Kent examined the Geneva Prisoner of

War Convention in order to determine whether the man should be

released as an innocent civilian, turned over to Vietnamese armed

forces law enforcement personnel as a criminal accused, or declared a

prisoner of war. Based on the evidence, Kent determined the wounded

Vietnamese should be turned over to the police.65

On that same day, 18 March 1968, Capt. Green advised a soldier

facing trial by summary court-martial of his right to refuse such trial

and, if he decided to accept the court-martial, how best to defend

himself against the charges. Green also advised the summary court

officer on the appropriate procedure and the rights of the accused at a

summary court. In addition, Green responded to the staff judge

advocate’s posttrial review of a general court-martial concluded two

weeks previously, advising that additional information about the

accused’s military record should go to the convening authority prior to

his action on the findings and sentence. In addition to this criminal

work, Green handled a number of legal assistance clients. One soldier

had been named as a party in a civil suit, and Green had moved for a stay

of proceedings against the soldier, citing the protections of the Soldiers’

and Sailors’ Civil Relief Act. That law permitted a soldier absent from a

jurisdiction because of military orders to obtain a reasonable delay in

civil proceedings until such time as his or her military service either

ended or he or she was able to appear in court. Based on Green’s motion

for a stay, the lawyer representing the plaintiff in the suit agreed to drop

the soldier as a party to the action.

Also on that same day, 18 March 1968, Capt. Felder had been

awakened at 0200 by the military police. They had a suspect in an

63
aggravated assault case who, after

being advised of his rights under

Article 31 of the Uniform Code,

requested a lawyer prior to

questioning. Felder talked

privately with the suspect and

advised him not make a statement

and to decline any further

interrogation in the absence of an

attorney. After working this case

for two more hours, Felder went

back to bed at 0400. Only a few

hours later, he was back in his

office working on a revision of the

II Field Force Military Justice

Circular. Written as guidance for

unit commanders and military

policemen, this document

explained recent rulings of the U.S.

Court of Military Appeals

affecting military criminal practice. Among other things, Felder

explained that restricting an accused to the limits of a military

installation required the government to proceed more quickly to trial.

He also explained that an accused’s acceptance of nonjudicial

punishment under Article 15 was not a basis for finding the accused

guilty. Rather, the accused had merely chosen the forum, and the

commander still needed proof that an offense was committed before

imposing punishment. Later that same day, Felder advised two criminal

investigation agents in a case in which he had no attorney-client

relationship with the suspect.

Maj. Kulish, the deputy staff judge advocate, was just as busy that

same day in March 1968. He examined a posttrial review of a general

court-martial for aggravated assault. He advised a battery commander

on gathering evidence against a soldier who had assaulted another with

a deadly weapon. He executed a special power of attorney for a

soldier’s wife so that she could settle with his automobile insurance

company. He advised another commander on drafting special

court-martial charges against a soldier for selling cigarettes in violation

of the ration control regulations then in effect. And he counseled a

nonlawyer prosecutor in a special court-martial on the method of

submitting an official document into evidence as an exception to the

64

Capt. Ned E. Felder, the only judge

advocate to serve two consecutive

twelve-month tours in Vietnam,

receives the Bronze Star Medal from

Brig. Gen. John S. Lekson, Chief of

Staff, II Field Force, Vietnam, in

February 1968. After Vietnam, Felder

served as a judge advocate at VII Corps

and the Berlin Brigade in Germany, and

as a military judge. He retired in 1988.
hearsay rule. Kulish explained the law on the subject and the method for

submitting the document into evidence.66

101st Airborne Division (Airmobile)

The 1st Brigade, 101st Airborne Division, and its sole judge

advocate, Capt. Frank R. Stone, arrived in Vietnam in July 1965. The

division’s remaining elements deployed in December 1967. Although

its Table of Organization and Equipment authorized five judge

advocates, the division had seven lawyers by 1968, headed by Lt. Col.

Victor A. DeFiori as staff judge advocate and Maj. Steven R. Norman

as deputy staff judge advocate. In accordance with doctrine, DeFiori

and most of his lawyers were located at the division rear headquarters at

Bien Hoa, outside of Saigon. In December 1969, however, the new

division staff judge advocate, Lt. Col. George C. Ryker, moved most of

his lawyers to the division main headquarters at Camp Eagle in I Corps.

Ryker’s rationale was that he and his attorneys would provide better

legal support at this location since Maj. Gen. Melvin Zais, the division

commander, and his principal staff were there. In addition to Ryker, his

deputy, and five judge advocates, the division had at least five more

lawyers, both enlisted men and officers.67 The lawyers worked and

lived in wooden huts. Ceiling fans provided some relief from the

65

In 1968, the “Screaming Legal Eagles” at the 101st Airborne Division’s Camp Eagle

lived and worked in tents. Here, Lt. Col. Victor A. DeFiori, division staff judge

advocate, greets Maj. Gen. Kenneth J. Hodson, The Judge Advocate General,

during the latter’s inspection tour of legal operations in South Vietnam.
100-degree summer days, but during the monsoon season from

November to February almost everyone used an electric blanket or

sheet to keep both dry and warm.68

Military justice in the 101st Airborne was typical for a deployed

division, with the majority of the offenses being absence without leave,

disobedience of orders, and assaults. These were prosecuted at general,

special, or summary courts, depending on the severity of the offense.

Marijuana use generally was handled under Article 15 of the Uniform

Code. Special courts were usually tried by a panel; a military judge was

used only if the case turned on a particular legal issue. Initially at least,

confinement of soldiers before and after trial was a significant problem.

Camp Eagle was more than 300 miles from Long Binh jail, the

confinement facility for all U.S. Army troops in Vietnam, and it took

nearly a week to send two guards on a C-130 aircraft to take or bring

back a jailed soldier. Consequently, in December 1969 the division

began sending its pretrial and posttrial confinees to the Marine Corps

brig in Da Nang. Overall, military justice functioned fairly well,

although basic reference materials were often lacking. For example, the

division had only one copy of the newly published Manual for

Courts-Martial. Its owner was the new deputy staff judge advocate,

Maj. Thomas R. Cuthbert, who had received it while attending the new

special court judge’s course prior to coming to Vietnam. Cuthbert

guarded the book closely until more arrived three to six months later.69

The amendments to the Uniform Code contained in the Military

Justice Act of 1968 were effective on 1 September 1969. Some

commanders, however, remained opposed to giving up control over

special courts-martial, even after lawyers began serving as defense

counsel. For example, in convening special courts, the division’s

aviation group and artillery commanders continued using nonlawyers

as prosecutors, believing that a line officer rather than a judge advocate

would better represent the command’s interest. These commanders

accepted that felony-level general courts required judge advocates, but

they did not like the intrusion of lawyers into their special courts, which

they saw as tools of discipline rather than instruments of justice. In

discussing the merits of the new changes to the Uniform Code, Maj.

Cuthbert often heard older officers insist that their experiences as

lieutenants prosecuting and defending at special courts demonstrated

the fairness of the old system. As nonlawyer trial counsel often did not

do well against legally trained defense counsel, however, even the most

reluctant special court-martial convening authorities eventually

accepted the judge advocate presence at special courts. By mid-1970,

66
when USARV regulations required all jurisdictions in Vietnam to

attempt to secure a military judge in all special courts-martial, control

over special court proceedings passed irrevocably to military

lawyers.70

Legal assistance for division soldiers was provided primarily by

enlisted lawyers. For example, Pfc. Howard R. Andrews, an Alabama

lawyer who had been serving in one of the division’s field artillery

battalions, joined the legal assistance shop at Camp Eagle. While there,

Andrews applied for and received a commission in the Judge Advocate

General’s Corps, and Maj. Gen. John M. Wright, Zais’ successor,

personally administered his oath of office on the day Andrews was

promoted from private first class to captain. After becoming a judge

advocate, Capt. Andrews transferred to the 25th Infantry Division. He

was killed in a helicopter crash a few months later.71

As the number two lawyer in the division, Maj. Cuthbert did “a little

bit of everything,” but “because he could speak artillery” by virtue of

his prior service as a line officer with the 1st Cavalry Division, his

major responsibility became reviewing friendly-fire investigations.

Although such investigations could have been conducted pursuant to

Army regulations, Generals Zais and Wright wanted friendly-fire

incidents investigated under paragraph 32b of the 1969 Manual for

Courts-Martial. That provision required a commander with immediate

jurisdiction over a wrongdoer to “make or cause to be made, a

preliminary inquiry into the charges or the suspected offenses.” As a

result, an experienced major in the division was directed to interview

witnesses and collect other evidence essential to determining fault in a

particular friendly-fire incident. After the investigation was complete,

Cuthbert reviewed it. This meant examining regulations on fire control

and applying the principles of causation and negligence. Often the

artillery would claim that the infantry was at fault because the latter had

given incorrect map coordinates to fire control. The infantry would

deny any map-reading error, asserting firing errors. After receiving

Cuthbert’s review and pursuing further discussion with principal staff

officers in the division, usually the adjutant and operations officer, the

division commander took appropriate action. If the investigation found

misconduct, the individual at fault usually received an Article 15 as

punishment. In one instance, a captain whose firebase was being

overrun by the enemy intentionally called for artillery fire on his own

position. This act saved many lives, and Gen. Wright recognized the

captain’s gallantry with the Silver Star. Because the man did not follow

fire control procedures, however, Wright also gave him an Article 15.72

67
1st Logistical Command

Established in April 1965, the 1st Logistical Command was a

separate major command headed by a two-star Army general. It

provided logistics support to all U.S. Army forces in Vietnam except

aviation, communications, and military police. By early 1968, 1st

Logistical Command had over 55,000 soldiers in more than 600 units

located in four support command areas. Between 1965 and 1969, more

than forty judge advocates worked at the command’s headquarters, first

at Tan Son Nhut and later at Long Binh, supporting its country-wide

mission.

Col. Hubert E. Miller, two-time

Olympian and winner of the Distinguished Service Cross at Normandy, was

the staff judge advocate for the 1st Logistical Command from June 1966 to July

1967. He and his legal staff of ten military

attorneys handled criminal, procurement,

real estate, international, and maritime

law. They worked six and a half days a

week, twelve hours a day and, although

the workload was very heavy, “when the

day was over life was fairly good.” Capt.

Burnett H. Radosh, for example, who was

the command’s chief of military justice

during this time, lived in a “very pleasant”

hotel in Saigon. When not writing

posttrial reviews, Radosh played poker

with his fellow judge advocates and traveled throughout the city.73

Ninety percent of the workload for Col.

Miller and his attorneys involved general

courts convened at the command’s headquarters. The rapid troop buildup at 1st

Logistical Command meant an increase in

misconduct and more general

courts-martial. Few of the courts-martial

were for military offenses. Rather, most were for murders, rapes, and

robberies. Unfortunately, the rising crime rate meant that only the most

serious cases could be prosecuted at general courts. Thus, some cases

that ought to have been general courts resulted in Article 15 proceedings, with the additional “punishment” of reassignment to a “line out68

Col. Hubert E. Miller, the only

Army lawyer participant in the

Olympics (as a member of the

four-man bobsled team, 1952)

and recipient of the Distinguished Service Cross (as infantry lieutenant in Normandy,

1944), was the staff judge advocate for 1st Logistical Command from 1966 to 1967. At

Miller’s suggestion, the command prosecuted the first civilian at a court-martial.
fit.” This was the “big threat” to any soldier who misbehaved in Saigon,

as most preferred life in the city to combat duty in the field.74

Special courts also were convened at headquarters and at the satellite

support commands, but military lawyers generally did not participate in

this level of court or in summary courts-martial. The only exception

was in the area of civilian misconduct, for it was at 1st Logistical

Command that the first civilian was prosecuted at a summary

court-martial. A civilian merchant seaman named Bruce was caught

stealing from a ship in Cam Ranh Bay and, after being apprehended,

was confined in a CONEX container; there was no stockade. After

instructing those in charge of the prisoner to give him plenty of water,

and without asking for approval from the MACV staff judge advocate,

but nonetheless informing him of the Bruce case, Col. Miller conferred

with Maj. Gen. Charles W. Eifler, commanding general of the 1st

Logistical Command. He proposed to Eifler that a summary court be

convened against Bruce and further recommended that an Army lawyer

be appointed as summary court officer. Anticipating questions about

the command’s jurisdiction over a civilian, Eifler signed a

memorandum prepared by Miller. This document, dated 8 December

1966, stated that “in view of the conditions now prevailing in Vietnam,

I have determined that ‘time of war’ within the meaning of the UCMJ

exists in this area of operations.”75 First Logistical Command Special

Orders then were published appointing Capt. Radosh as summary court

officer. Radosh traveled to Cam Ranh Bay, heard the evidence against

Bruce, and convicted him. Bruce’s punishment was a reprimand, a fine,

and restriction to his ship. Col. Miller reviewed the abbreviated record

of the summary court and Gen. Eifler approved the findings and

sentence.76 Although 1st Logistical Command lawyers conducted the

proceedings against Bruce, both USARV and MACV headquarters

certainly approved of Miller’s action, as did civilian officials at the

American embassy.77

In addition to prosecuting the first civilian in Vietnam, 1st Logistical

Command also processed the first enlisted resignation in lieu of

court-martial. A sergeant and some other men had stolen a jeep and

some radios, dug a hole, and buried them, planning to retrieve the

property later. The sergeant was found out, however, and charges were

preferred for larceny of government property. Prior to trial, however,

Col. Miller suggested to the accused’s defense counsel that the soldier

“consider a resignation in lieu of trial” under Army Regulation

635-200. This regulation, governing enlisted personnel separations,

had a new provision whereby a soldier pending trial for an offense

69
punishable by a punitive discharge could request “a discharge for the

good of the service in lieu of trial.” The defense counsel had never heard

of this new provision, but he advised his client to request the discharge.

Miller took the request to Eifler who, though also unfamiliar with the

new provision, approved it. The soldier had a good record so he got a

break, receiving a general rather than an undesirable discharge.

Interestingly, it was Miller who first proposed creating an enlisted

resignation in lieu of court-martial when he was working in the

Pentagon at the Judge Advocate General’s Military Justice Branch

from 1960 to 1963. Under then existing law, an officer could resign in

lieu of court-martial, but enlisted soldiers had no comparable

mechanism. Believing that the enlisted ranks should have the same

right as officers, and that authorizing a discharge in lieu of trial would

avoid unnecessary criminal work, Col. Miller sent his proposal forward

for staffing, but no action was taken. However, during a later visit with

then-Brig. Gen. Hodson, the assistant judge advocate general for

military justice, Miller again suggested that creating this enlisted

resignation mechanism was a good idea. Hodson agreed, picked up the

telephone, and spoke personally with the Adjutant General, requesting

speedy approval of Miller’s proposal. The new provision appeared in

the July 1966 revised version of Army Regulation 635-200.78

U.S. Army Trial Judiciary, Vietnam

The rapid buildup of American troops meant more courts-martial,

particularly general courts. Consequently, a new judicial circuit

consisting of two law officers was created in Vietnam in October

1965.79 The small number of general courts-martial tried in Vietnam in

late 1965 and early 1966 meant that a law officer traveled to Vietnam on

temporary duty to judge the case. As general courts increased, however,

a more permanent presence was needed in Vietnam, and by 1967 there

were two law officers assigned for duty in country. Lt. Col. Paul

Durbin, who had been the first judge advocate in Vietnam from 1959 to

1961, was one of them. Durbin volunteered to return to Vietnam and

was first assigned as staff judge advocate for the newly created II Field

Force. After his promotion to colonel, however, Durbin was asked if he

would like to be the law officer in Vietnam. When he agreed, he

returned to the Judge Advocate General’s School in Charlottesville,

Virginia, for a short course on military judging. He then returned to be

the only military judge in Vietnam until the arrival of Col. James C.

Waller. Durbin and Waller tried cases seven days a week. Sometimes

they used a chapel as their courtroom.80

70
Durbin’s most memorable case involved the rape and murder of a

twenty-year-old Vietnamese woman named Phan Thi Mao. On 17

November 1966, Sgt. David E. Gervase and Pfc. Steven C. Thomas,

both members of C Company, 2d Battalion (Airborne), 8th Cavalry, 1st

Cavalry Division, talked with three other squad members about plans to

kidnap a “pretty girl” during a reconnaissance mission planned for the

next day. Gervase talked about having sex with the woman and then

killing her.

Early on the morning of 18 November, the squad entered a village of

about a half-dozen huts looking for a woman. After finding Phan Thi

Mao, they bound her wrists with a rope, gagged her, and took her on the

mission. Then, after setting up headquarters in an abandoned hut, four

of the soldiers raped her. The next day, in the midst of a firefight with

the Viet Cong, Thomas and Gervase became worried that the woman

would be seen with the squad. Thomas then took the woman into a

brushy area and stabbed her three times with a hunting knife. The

woman, however, did not die. When she tried to flee, three of the

soldiers chased her. Thomas caught her and shot her in the head with his

M16 rifle. The real hero of the case was Pfc. Robert M. Storeby, who

reported the crime. At first, the chain of command, including the

company commander, took no action. Storeby, despite threats against

his life by the soldiers who raped and murdered the woman, was

determined to see the soldiers punished. His persistence in reporting the

crime to higher authorities eventually resulted in general courts-martial

against Gervase and Thomas, as well as against Pfc. Cipriano S. Garcia

and Pfc. Joseph C. Garcia. All four men were convicted of rape and

murder in March and April 1967. At the trial of Thomas, who had done

the actual stabbing and shooting, the prosecutor asked the jury to

impose a death sentence. The court, however, instead sentenced

Thomas to life imprisonment. Joseph Garcia received 15 years in jail,

Gervase 10 years in jail, and Cipriano Garcia 4 years’ confinement. All

four were dishonorably discharged from the Army. Some twenty years

later, these courts-martial became the basis for the Columbia Pictures

motion picture “Casualties of War.”81

Until the passage of the Military Justice Act of 1968, there was, of

course, no lawyer involvement at special courts-martial. Nonlawyer

line officers, usually lieutenants, served as trial and defense counsel.

There was no military judge or law officer either; the senior officer on

the panel presided over the special court. The new legislation, however,

meant that after 1 September 1969 judge advocates would be needed as

special court military judges. In Vietnam, the Judge Advocate

71
General’s Corps took a two-pronged approach in satisfying this new

need: two Army lawyers would be full-time special court judges and a

number of other judge advocates would serve as part-time military

judges.

The first two full-time special court-martial judges in Vietnam were

Maj. John F. Naughton and Maj. Dennis R. Hunt. Hunt, a graduate of

Harvard Law School, entered the Judge Advocate General’s Corps in

January 1965. After a tour with the 2d Infantry Division in Korea and at

the Appellate Division at the Judge Advocate General’s Office in

Washington, Maj. Hunt volunteered for duty in Vietnam in August

1969.82

Assigned to Long Binh in the 17th Army Judicial Circuit, Hunt

traveled six days a week for a year, sitting as a judge in 320

courts-martial. The most common offenses were absence without

leave, violating lawful general regulations, and possession and use of

marijuana or barbiturates, but Maj. Hunt also presided over eleven

homicide prosecutions. More than 90 percent of the defendants opted

for trial by military judge alone. One result of choosing a bench trial

was that “legal niceties” were more important than in a trial by

members in which the senior officer controlled the proceedings. Thus,

Hunt ruled on evidentiary issues such as whether a commander’s search

and seizure of an accused’s living area was based on probable cause and

whether two military policemen who stopped a soldier for being in an

off-limits area exceeded the scope of a “pat down” search for weapons

in looking in the accused’s sock. Judge Hunt determined that they

had.83

One interesting aspect of trial by special courts-martial during

Hunt’s tenure was that a unit’s manpower concerns often outweighed

the need for punishment. Court members sentencing an accused might

adjudge confinement as a part of a sentence, but the convening

authority often suspended any sentence to imprisonment, recognizing

that, for some soldiers, a stockade might seem preferable to combat.

Later, this practice of suspending a sentence to confinement was

institutionalized. USARV Supplement 1 to Army Regulation 27-10

required any sentence to confinement be suspended unless a punitive

discharge also was adjudged, the accused had a prior conviction, or it

was an “exceptional case involving serious offenses.”84

72
Summing Up

The more than 350 judge advocates who lawyered in Vietnam from

1965 to 1969 were challenged as never before. The MACV advisory

and USARV claims programs showed how law might be used to further

not only the command’s mission, but also the American policy of

strengthening the democratic process in Vietnam. USARV judge

advocates and Army attorneys at the field forces, divisions, and other

combat and support units were prosecuting and defending

courts-martial in a combat environment, and doing so while

implementing important changes in military criminal law. No matter

how much Army lawyers supported the command and its mission,

however, legal services for soldiers remained a priority as well.

Just as in the early years of the Vietnam conflict, a significant

number of judge advocates serving in Vietnam between 1965 and 1969

also enhanced mission success in ways not normally done by judge

advocates. Capt. Sherwood, while a member of the MACV SJA

Advisory Division, illustrated how being an excellent soldier made a

judge advocate even more valuable in the field. Col. Haughney, in

73

July 1968: Lt. Col. Hugh J. Clausen, Staff Judge Advocate, 1st Infantry Division

(left), and Lt. Col. Thomas C. Oldham, Deputy Staff Judge Advocate, U.S. Army,

Vietnam, stand at the entrance to the staff judge advocate’s bunker at Lai Khe.

Clausen was the Judge Advocate General from 1981 to 1985.
taking the initiative to resolve several prisoner of war issues, proved

that Army lawyers can-and should-handle such nonlegal matters if

necessary. Col. Williams, in providing legal advice to the U.S.

ambassador and in participating as a member of the Irregular Practices

Committee, illustrated how Army lawyers must be prepared to work

closely with high-level, nonmilitary government officials. And Col.

Miller, in arranging for the court-martial of a civilian merchant sailor,

proved that Army lawyers and military law could be used to promote

good order and discipline among all American citizens accompanying

the U.S. armed forces in Vietnam.

Moreover, events in Vietnam set in motion the forces that would

result in an institutional change in the role played by Army lawyers. The

uproar over the 1968 killings at My Lai, the findings contained in the

1970 Peers Report, and Col. Solf’s 1972 proposal for a Department of

Defense Law of War program all resulted in a new responsibility for

Army judge advocates in 1974: to ensure that all future U.S. military

operations strictly complied with the Law of War.

As the U.S. troop buildup reached its peak, judge advocate

operations in Vietnam also reached their zenith-at least in terms of the

number of Army lawyers deployed to that part of the world and the huge

volume of work done by them. After 1969, the work done by judge

advocates was certainly similar to that conducted by their colleagues

between 1966 and 1969. Yet there also were some new challenges.

More than anything, Army lawyers in Vietnam from 1970 to 1975

wrestled with legal issues accompanying the U.S. troop withdrawal

from Vietnam.

74
Notes

1. Interv, author with Prugh, 25 Sep 96.

2. Demma, “U.S. Army in Vietnam,” 638-39.

3. George S. Eckhardt, Command and Control: 1950-1969, Vietnam Studies

(Washington, D.C.: Government Printing Office, 1974), 54.

4. Demma, “U.S. Army in Vietnam,” 642.

5. Prugh, Law at War, 88.

6. Clarke, The Final Years, 93.

7. Demma, “U.S. Army in Vietnam,” 649. For a perspective on small-unit

operations in Vietnam, see James McDonough, Platoon Leader(Novato, Calif.:

Presidio Press, 1985), and David Donovan, Once a Warrior King (New York:

McGraw-Hill, 1985). McDonough served as an infantry lieutenant with the 173d

Airborne Brigade in 1970; Donovan served with a province advisory team in the

Mekong Delta in 1969.

8. Prugh, Law at War, 100.

9. Ibid., 10, 12.

10. Ibid., 53.

11. Interv, author with Col Edward W. Haughney, 27 Sep 96, Historians files,

OTJAG.

12. MACV Directive 20-5, Prisoners of War-Determination of Eligibility, 21 Sep

66, Historians files, OTJAG.

13. Prugh, Law at War, 65-66.

14. Guenter Lewy, America in Vietnam (New York: Oxford University Press,

1978), 364; interv, author with Prugh, 25 Sep 96; Prugh, Law at War, app. F.

15. Prugh, Law at War, 74; Lewy, America in Vietnam, 325, 348; Rpt, Clerk of

Court, U.S. Army Judiciary, Convictions by General and Special (BCD)

Courts-Martial of Offenses Against Vietnamese, 1965-1973, n.d., Historians

files, OTJAG; United States v. McGee, CM 422412 (1969), (court admonished

soldier after convicting him of involuntary manslaughter); United States v.

Hodges, CM 420341 (1969), (sergeant cut off heads of dead enemy soldiers and

posed for photographs with the corpses). See also United States v. Lund, United

States v. Francis, CM 420181 (1969), (rape of Vietnamese female by two

Americal Division soldiers); United States v. Woods, CM 416803 (1966),

(soldier killed detainee allegedly on instructions of company commander);

United States v. Williams, CM 419872 (1968), (soldier convicted of conduct

prejudicial to good order and discipline for cutting off ears and index fingers of

75
Vietnamese corpse); United States v. Goldman, CM 420332, 43 CMR 77,

ACMR (1970), (company commander convicted for failing to report noncombat

death of detainee and dereliction of duty in failing to protect Vietnamese female

in custody of his unit); United States v. Duffy, CM 424795, 47 CMR 658

(ACMR 1973), (lieutenant convicted of involuntary manslaughter for causing

Vietnamese to be taken to a woodline and shot with a rifle). For a more thorough

discussion of American war crimes in Vietnam, see Lewy, America in Vietnam,

323-441.

16. Prugh, Law at War, 90.

17. Ibid., 91; MACV Directive 27-6, par. 2(b)(2), reprinted in Prugh, Law at War,

app. J.

18. Prugh, Law at War, 108-09.

19. Trip Report on Vietnam, Eugene T. Herbert, Department of State, 30 Dec 66,

sub: Status of Civilian Contractors in Vietnam, box 1, HQ, MACV Staff Judge

Advocate, General Records, RG 472, NARA.

20. Memo, Staff Judge Advocate, 1st Logistical Command, for Commanding

General, USA Support Command, 13 Mar 67, sub: Court-martial jurisdiction

over civilians, box 1, USARV Staff Judge Advocate Section, Administrative

Office, RG 472, NARA.

21. Interv, author with Haughney, 27 Sep 96; Gary D. Solis, Marines and Military

Law in Vietnam: Trial by Fire (Washington, D.C.: Government Printing Office,

1989), 99-100.

22. Prugh, Law at War, 93.

23. Ibid., 104.

24. “Scrips to replace the U.S. dollars today,” Saigon Post, 31 Aug 65. For additional

details on the Military Payment Certificate program, see Prugh, Law at War,

104-06.

25. “Minutes, U.S. Irregular Practices Committee,” 3 Jun 70, Folder 401-05,

Irregular Practices Committee, 1970, box 1, HQ, MACV Staff Judge Advocate,

General Records, RG 472, NARA.

26. Staff Study, The Role of Civil Law in Counterinsurgency, HQ, MACV, May 65,

Historians files, OTJAG.

27. MACV Directive 25-1, Claims, 14 May 65, Historians files, OTJAG.

28. Interv, author with Prugh, 25 Sep 96; Prugh, Law at War, 83; U.S. Public Law

90-521, sec. 3 (1968), amending Title 10, United States Code, sec. 2734.

29. Prugh, Law at War, 41, 49.

76
30. Staff Study, Transfer of MACV Staff Elements to USARV, HQ MACV, 28 Nov

65, box 1, USARV Staff Judge Advocate Section, Administrative Office, RG

472, NARA.

31. Ltr, Prugh to Adelaide Hunt, 22 Mar 65, Historians files, OTJAG.

32. Prugh Jnl, 23 Apr 65, Historians files, OTJAG; Prugh, Law at War, 47-48, 53,

115.

33. Prugh, Law at War, 50.

34. Ibid.

35. Ibid., 54-55.

36. Memo, USARV Staff Judge Advocate for USARV Assistant Chief of Staff,

Comptroller, 12 Sep 68, sub: Mission of USARV SJA, box 1, USARV Staff

Judge Advocate Section, Administrative Office, RG 472, NARA.

37. Interv, author with Col John Jay Douglass, 19 Nov 96, Historians files, OTJAG.

38. Uniform Code of Military Justice, art. 36, Title 10, United States Code, sec. 836;

The Army Lawyer: A History of the Judge Advocate General’s Corps,

1775-1975 (Washington, D.C.: Government Printing Office, 1975), 244-45.

39. For a detailed analysis of the Military Justice Act of 1968, see Samuel J. Ervin,

“The Military Justice Act of 1968,” Wake Forest Law Review 5 (1969):223;

Kenneth J. Hodson, “The Military Justice Act,” Judge Advocate Journal, Bull

number 42 (May 1970):30.

40. Army Lawyer, 247.

41. Ibid.

42. Interv, author with Maj Gen William K. Suter, 25 Jul 96, Historians files,

OTJAG.

43. Interv, Maj Dan Wright and Capt James Rupper with Maj Gen Wilton B.

Persons, Jr., 16 Jan 85, p. 14, Historians files, OTJAG.

44. Interv, author with Maj Gen Wilton B. Persons, Jr., 17 Sep 96, Historians files,

OTJAG.

45. Dennis R. Hunt, “Viet Nam Hustings,” Judge Advocate Journal, Bull no. 44

(July 1972):23.

46. William H. Hammond, Public Affairs: The Military and the Media, 1968-1973,

The U.S. Army in Vietnam (Washington, D.C.: Government Printing Office,

1996), 220-24.

47. Michael Bilton and Kevin Sim, Four Hours in My Lai (New York: Viking Press,

1992), 329.

48. Hammond, Military and the Media, 1968-1973, 252.

77
49. Ibid., 258-59; Lewy, America in Vietnam, 356-58; United States v. Calley, 46

CMR 1131 (ACMR 1973); interv, author with Col William G. Eckhardt, 8 Dec

98, Historians files, OTJAG. See also Calley v. Callaway, 382 Federal

Supplement (F. Suppl.) 650 (1974).

50. Report of the Department of the Army Review of the Preliminary Investigations

into the My Lai Incident (Peers Inquiry), 14 Mar 70, I:10-26; Hammond,

Military and the Media, 1968-1973, 244-45; Army Regulation (AR) 35-216,

Training: The Geneva Conventions of 1949 and Hague Convention No. IV of

1907, 28 May 1970; DOD Directive 5100.77, DOD Program for

Implementation of the Law of War, 5 Nov 74.

51. Hammond, Military and the Media, 1968-1973, 139.

52. Interv, author with Brig Gen Bruce C. Babbitt, 16 Sep 96, Historians files,

OTJAG.

53. J. Stevens Berry, Those Gallant Men (Novato, Calif.: Presidio Press, 1984),

51-52; interv, author with Berry, 10 Jul 96, Historians files, OTJAG. For a

detailed examination of the Green Beret murder case, see Jeff Stein, A Murder in

Wartime (New York: St. Martin’s Press, 1992).

54. Hammond, Military and the Media, 1968-1973, 144. See also Wright and

Rupper, interv with Persons, 16 Jan 85, 44-88.

55. Ltr, OTJAG, DA, to SJA, USARV, 27 Feb 69, sub: United Fruit Co. v. US, box

2, USARV Staff Judge Advocate Section, Litigation Case Files, RG 472,

NARA.

56. Ltr, OTJAG, DA, to SJA, USARV, 28 Oct 69, sub: Donald W. Morrison v. US,

box 2, USARV Staff Judge Advocate Section, Litigation Case Files, RG 472,

NARA. See also Morrison v. United States, F. Supp. 316 (1970):78.

57. George S. Prugh, “Law Practice in the Vietnam War,” Federal Bar Journal 27

(1967):58.

58. Prugh, Law at War, 83.

59. Ibid., 62.

60. Interv, author with Lt Col Leonard G. Crowley, 24 Jul 96, Historians files,

OTJAG.

61. Ibid.; Hammond, Military and the Media, 1968-1973, 144.

62. Interv, author with Holdaway, 24 Jul 96.

63. Interv, author with Col Charles A. White, Jr., 20 Sep 96, Historians files,

OTJAG.

64. Interv, author with Col Raymond T. Ruppert, 2 Oct 96, Historians files, OTJAG.

78
65. Irvin M. Kent, Jon N. Kulish, Ned E. Felder, and Herbert Green, “A Lawyer’s

Day in Vietnam,” American Bar Association Journal 54 (December

1968):1177-78; Pierre Loomis, “Circuit Riding Judge,” Hurricane (July

1968):6.

66. Kent, et al., “A Lawyer’s Day in Vietnam,” 1179-82.

67. Judge Advocate General’s Corps, U.S. Army, Personnel Directory, 1967, 1968,

Historians files, OTJAG.

68. Interv, author with Brig Gen Thomas R. Cuthbert, 2 Oct 96, Historians files,

OTJAG.

69. Ibid.

70. Ibid.; USARV Supp. 1 to AR 27-10, Military Justice, par. 2-15b, 15 Jun 70.

71. Interv, author with Cuthbert, 2 Oct 96; interv, author with Col Burnett H.

Radosh, 10 Jul 96, Historians files, OTJAG.

72. Interv, author with Cuthbert, 2 Oct 96.

73. Interv, author with Radosh, 10 Jul 96.

74. Interv, author with Col Hubert E. Miller, 2 Jul 96, Historians files, OTJAG.

75. Memo, CG, 1st Logistical Command, for CG, USA Support Command, Cam

Ranh Bay, 8 Dec 66, sub: Jurisdiction over Civilians, Historians files, OTJAG.

76. Interv, author with Miller, 2 Jul 96.

77. Trip Report on Vietnam, Eugene T. Herbert, Department of State, 30 Dec 66,

sub: Status of Civilian Contractors in Viet Nam, box 1, MACV Staff Judge

Advocate, General Records, RG 472, NARA.

78. AR 635-200, Personnel Separations, Enlisted Personnel, 15 Jul 66; interv,

author with Miller, 10 Oct 96.

79. Army Lawyer, 240.

80. Interv, author with Durbin, 1 Jul 96.

81. United States v. Steven C. Thomas, CM 416162, 38 CMR 655 (ABMR 1968);

United States v. David E. Gervase, CM 416161, 22 Mar 67; United States v.

Joseph C. Garcia, CM 416160, 17 Mar 67; United States v. Cipriano S. Garcia,

CM 416159, 38 CMR 625 (ABMR 1967); interv, author with Durbin, 11 Jul 96;

interv, author with Eckhardt, 8 Dec 98; see also Daniel Lang, Casualties of War

(New York: McGraw, 1969).

82. Interv, author with Col Dennis R. Hunt, 13 Sep 96, Historians files, OTJAG.

83. Hunt, “Viet Nam Hustings,” 15, 26; interv, author with Hunt, 13 Sep 96.

79
84. USARV Supplement 1 to AR 27-10, par. 2-35, 15 Jun 70; interv, author with

Hunt, 13 Sep 96. For another firsthand account of judging in Vietnam, see Jack

H. Crouchet, Vietnam Stories: A Judge’s Memoir (Niwot, Colo.: University

Press of Colorado, 1997).

80
Chapter 3

Vietnam: Lawyering in the Final Years

1970-1975

“Prior to going to Vietnam, I was the Staff Judge Advocate at the 3d

Infantry Division and V Corps... those were normal assignments . . .

Vietnam was chaos.”1

Brig. Gen. Joseph N. Tenhet, Jr., Staff Judge Advocate,

U.S. Army, Vietnam, and Military Assistance Command,

Vietnam (1972-1973)

Background

Although American offensive operations continued after 1970,

President Richard M. Nixon had decided the year before to withdraw

U.S. forces from Vietnam. He called his strategy “Vietnamization,”

and its intent was to create a strong South Vietnamese military capable

of carrying the main burden of fighting so that the Americans could

depart. Under the new strategy, all American operations aimed to buy

time for the South Vietnamese, whose improvement and modernization

promised to be hard going whatever the good intentions all around.

Chief targets for U.S. forces were enemy bases in South Vietnam and

over the borders. Their denial as staging areas for enemy operations

seemed the surest way of reducing the long-term threat to South

Vietnam.

As a result, while American troops began withdrawing, with most

units leaving in 1970 and 1971, aggressive operations continued, some

of them very large scale. One of the largest kicked off on 1 May 1970, as

units of the 1st Cavalry Division, 25th Infantry Division, and 11th

Armored Cavalry Regiment pushed into Cambodia. The Americans

discovered large, well-stocked storage sites, training camps, and

hospitals, all recently occupied. But most enemy units retreated deep

into the country, beyond the self-imposed limit of the U.S. advance.

Despite mixed success in Cambodia, the Vietnamese, with U.S.

aviation support, launched across the border into Laos in February

1971. The aim was to sever the Ho Chi Minh Trail, the enemy supply

line into South Vietnam. The result, however, was near-disaster for the

South Vietnamese, whose operational weakness at all levels of their

army was painfully and embarrassingly revealed.2

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The continued withdrawal of U.S. forces meant decreasing mobility,

firepower, intelligence support, and air support. In 1970 there were

5,000 American helicopters in Vietnam; by 1972, there were about 500.

When the North Vietnamese Army launched its Easter offensive in

March 1972, total U.S. military strength in theater was about 95,000, of

which 6,000 were combat troops. In these circumstances, responsibility

for countering the enemy invasion fell almost completely on the South

Vietnamese Army, by now a well-armed fighting force. Its poorly

skilled soldiers and leaders, however, were no match for the North

Vietnamese, who defeated the South Vietnamese 3d Infantry Division

and seized most of the northernmost province before U.S. air power

blunted the assault.3

The United States, North and South Vietnam, and the Viet Cong

signed in January 1973 an armistice that promised a cease-fire and

national reconciliation. Immediately, U.S. Army, Vietnam, and

Military Assistance Command, Vietnam, were dissolved, all remaining

U.S. troops were pulled out, and American military action in Vietnam

halted. U.S. advisers, who until the end had provided backbone for the

South Vietnamese command structure, were also withdrawn.4

But far from ending the fighting, the signing of the armistice and the

departure of the Americans left South Vietnamese forces competing

with the enemy for territory. Unfortunately, the combat capability of

the South Vietnamese military was now on a downward slope, in part

because poor maintenance and lack of spare parts made essential

equipment inoperable. When a weary Congress reduced U.S. military

aid, Saigon had no choice but to avoid engaging in combat operations to

husband its diminishing resources. The end was not long in coming. In

January 1975 the North Vietnamese seized Phuoc Long Province in III

Corps and, when the United States did not respond, continued the

offensive. When President Nguyen Van Thieu withdrew his forces to

defend Saigon to the south, this action, though sound, provoked panic

among both troops and civilians. Some South Vietnamese units fought

well, but most disintegrated. Saigon fell to the enemy on 30 April 1975,

and American technicians, embassy personnel, and others were

evacuated that day.5

Lawyering at Military Assistance Command, Vietnam

From 1970 to 1973 the number of Army lawyers at MACV

headquarters ranged from three to five, with an Army colonel

continuing as the staff judge advocate. Col. Robert K. Weaver held the

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position from July 1970 to June 1971. His successor, Col. Lawrence P.

Hansen, remained in Saigon for only three months, from June to August

1971, before Col. James F. Senechal replaced him in November 1971.

Senechal was destined to be the last MACV staff judge advocate; when

American facilities closed at Long Binh in December 1972, Col. Joseph

N. Tenhet, Jr., the USARV staff judge advocate, was selected to stay in

Vietnam as the new USARV/MACV staff judge advocate. Senechal

departed for the United States.

MACV Advisory Division

MACV judge advocates provided the same kind of legal services as

their predecessors, but what differentiated their lawyering in Vietnam

from the practice of others was their advisory work with the

Vietnamese. In Saigon, these efforts focused on the organization and

budget of the Directorate of Military Justice. The Americans also

collected, translated, and indexed Vietnamese laws and decrees,

prepared staff studies, and participated as members of various MACV

and joint MACV-Vietnamese committees. For example, a MACV

judge advocate adviser was a member of the joint committee

developing a national mobilization study for the Vietnamese armed

forces in the fall of 1972. MACV lawyers also continued to participate

in the Law Society of Free Vietnam and Law Day activities.

Also as before, the MACV Advisory Division taught courses in

government and law at the University of Saigon and taught English to

Vietnamese lawyers who were then, or later became, Supreme Court

justices, ministers of justice and interior, or key Directorate of Military

Justice personnel. This Saigon-based educational program lasted until

USARV/MACV judge advocate operations ceased in March 1973.

Complementing MACV advisory work was a program for study in the

United States. MACV lawyers arranged for selected Vietnamese

lawyers to visit the United States under the auspices of the State

Department’s Foreign Leader and Specialist Program. They also

selected Vietnamese judge advocates for military law instruction at the

Judge Advocate General’s School in Charlottesville, Virginia. An

average of two Vietnamese officers a year were sent to Charlottesville,

with a high point reached in January 1970 when four officers qualified

for attendance at the school’s eight-week basic course or the

nine-month advanced course. The Americans believed that

emphasizing and encouraging education promoted respect for the law

and prompted the Vietnamese to take fresh approaches to legal

education. In November 1971, when the Directorate of Military Justice

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opened its own school for training military lawyers, administrative

personnel, and court clerks, it came as no surprise to American advisers

that the school’s new staff included two Vietnamese judge advocates

who had studied in the United States thanks to a MACV Advisory

Division initiative.6

Outside Saigon, field advisory activities varied widely. Some judge

advocates worked with their Vietnamese counterparts on a daily basis

and devoted most of their time to Vietnamese military justice

procedures, the operation of Vietnamese provincial jails and military

prisons, the Vietnamese claims program, desertion control, resources

control, and security programs. As the judge advocate field advisers

were collocated with the senior U.S. adviser, they sometimes

functioned as command judge advocates. What a field adviser did, and

the success of his tour of duty, depended on many factors: his own

personality, his ability to establish rapport with his Vietnamese

colleague, the level of support given to him by the local U.S.

commander, and the legal needs of the time and place. More than

anything else, however, a field adviser had to be innovative, identifying

problems and discovering practical solutions. Sometimes the most

pressing problems were nonlegal, such as arranging transportation for

Vietnamese legal officers, providing storage for records of trial, or

obtaining materials and equipment to improve the Vietnamese military

courts and prisons.7

Although most advisory efforts continued programs in existence,

one new challenge was working with the Vietnamese military prison

system. In the American Army, confinement facilities are the

responsibility of the Military Police Corps. In the Vietnamese armed

forces, prisons were administered by the Military Justice Corps.

Consequently, as judge advocates were advisers to the Directorate of

Military Justice, they also became advisers to the military prisons. This

was a role for which Army lawyers had little preparation.

Advisory efforts at the military prisons fell into two categories:

providing administrative guidance and technical expertise, and

obtaining building materials and supplies. Officers from the MACV

staff judge advocate’s office in Saigon periodically visited the military

prison in each corps area, monitoring progress and coordinating

advisory programs with the field advisers. Recognizing that the

Vietnamese badly needed professional help with their prison system

and that his lawyers lacked expertise, Col. Weaver, the MACV staff

judge advocate from July 1970 to June 1971, augmented the Advisory

Division staff with a U.S. Military Police Corps officer. This man,

84
whom Weaver assigned as a special adviser to the pretrial confinement

facilities under Vietnamese control, prepared an administrative

checklist for those facilities. This was translated into Vietnamese and

presented to the Directorate of Military Justice as a vehicle for

improving conditions and a model for any future procedural

innovations.8

Judge Advocate Operations at U.S. Army, Vietnam

Until December 1972, when U.S. Army, Vietnam, merged with the

Military Assistance Command, USARV judge advocates provided the

same range of legal services-military justice, administrative law, legal

assistance, and claims-offered by their predecessors. The number of

military lawyers at USARV headquarters from 1970 to 1972 ranged

from eight to twelve. Judge advocates of note included Col. Wilton B.

Persons, Jr., later the judge advocate general; Maj. William K. Suter,

later the assistant judge advocate general; and Lt. Col. Lloyd K. Rector,

a future brigadier general in the Judge Advocate General’s Corps. The

changing membership of the corps was reflected in the assignment of a

husband-and-wife “JAG team” to Vietnam, with Capt. Nancy W.

Keough at U.S. Army Area Command and Capt. James E. Keough at

U.S. Army Procurement Agency. Although not the first, Nancy

Keough was one of the few female judge advocates to serve in

Vietnam.9

Military Justice

After 1970, USARV lawyers

handled all courts-martial in The

Support Troops, Vietnam. With

more than 40,000 personnel, it

was the largest general

court-martial jurisdiction in

Vietnam. These same attorneys

also provided guidance and assistance to thirteen subordinate

general courts-martial jurisdictions and about a hundred special

court-martial convening authorities. The many special court jurisdictions resulted from Article

23 of the Uniform Code. That

85

After the passage of the Military Justice

Act of 1968, Army lawyers began participating in courts-martial as military judges.

In this photograph, circa 1970, a judge advocate captain presides as a military judge

at a special court-martial. Except for the

jungle fatigues, court proceedings in Vietnam were no different than those held in

the United States and Europe.
provision permitted the commanding officer of a detached battalion to

convene a special court. In Vietnam, this meant that some divisions had

as many as fifteen special court-martial convening authorities. With the

passage of the Military Justice Act of 1968 and the resulting lawyer participation at special courts-martial, so many convening authorities

made managing legal activity more difficult. Lawyers, court reporters,

and legal clerks who previously had limited roles in the operation of

special courts now discovered that prosecuting, defending, transcribing, and processing these courts-martial had increased their work more

than twentyfold in just a year, and that the existence of so many convening authorities only added to the chaos.10 Consequently, Col. Persons,

as USARV staff judge advocate, urged field force and division staff

judge advocates to convince their commanding generals to consolidate

their special courts at the brigade level. Most did, but some did not. Uniformity in military justice matters therefore remained problematic.11

Was military justice working at U.S. Army, Vietnam, and at the

corps, division, and brigade levels? Did the system serve both justice

and discipline? The answer depended on who was asked, at what level

that person worked in the system, and the time period in reference.

From 1965 on, almost all Army lawyers working at the trial level-staff

judge advocates, trial and defense counsel, and judges-believed that the

criminal law system worked well in Vietnam. They observed that

commanders routinely used courts-martial to punish any serious

disobedience of lawful authority. Murder, rape, robbery, and other

criminal offenses were successfully prosecuted. These prosecutions,

and the use of nonjudicial proceedings under Article 15, promoted good

order and discipline. But justice was also done and, rather than harming

the system as some had feared, the Military Justice Act of 1968 bettered

it. On 10 August 1970, Brig. Gen. Harold E. Parker, assistant judge

advocate general of the Army, reported that after a full year’s

experience under the new act, the “military justice system had

substantially improved in regards both efficiency and fairness.”

Legally qualified counsel were representing the accused at special

courts and military judges were being detailed in about 85 percent of

such courts, and this number was expected to increase. Additionally,

prior to the act, all trials were by jury. Afterward, accused were

selecting trial by judge alone 85 percent of the time at general courts

and 95 percent of the time at special courts. Since the Army tried 300

general courts and 4,964 special courts in Vietnam in 1970, this

“brought about a decrease in trial time, shortened trial records, and has

resulted in a significant saving of line officer time.”12 While there is no

86
doubt that the trial-by-judge procedure streamlined criminal justice, the

system’s main strength was the cadre of judge advocates who were

committed to making it work. They journeyed by airplane, helicopter,

truck, and jeep throughout the theater, prosecuting, defending, and

judging courts-martial, often at considerable risk. More than a few

records of trial note: “The personnel of the court, counsel, and the

accused recessed to nearby bunkers because of a VC rocket and mortar

attack.”13 In the end, courts-martial that needed trying were tried.

At the same time, while thousands of courts-martial were

successfully prosecuted in Vietnam, a challenge to the military justice

system was arising in another quarter. The symptoms were Armywide

and its sources were even broader, although on this point there was

considerable controversy.14 But whatever the origins, the breakdown

of order and discipline in the Army, beginning in the late 1960s, created

extraordinary institutional turbulence in Vietnam and raised questions

about the Uniform Code and military justice in general. The Army, like

the nation, was knee-deep in a crisis of confidence in its mission as

fewer and fewer soldiers, especially young draftees, were satisfied to

risk their lives in an unpopular war.

The signs of discontent were everywhere: drug addiction, racial

strife, and mutinous behavior on the battlefield. Some 144 underground

newspapers published on, or aimed at, U.S. military bases encouraged

disobedience and dissent. “In Vietnam,” wrote the Fort

Lewis-McChord Free Press in Washington, “the Lifers, the Brass, are

the true Enemy, not the enemy.” Another West Coast newspaper

advised its readers: “Don’t desert. Go to Vietnam and kill your

commanding officer.” Demoralized, some soldiers turned to alcohol.

Drugs, almost as easily obtained, were also increasingly attractive,

leading a congressional investigating subcommittee to report in April

1971 that “10 to 15% of our troops in Vietnam are now using

high-grade heroin.”15 A September 1971 study done by the White

House showed that almost 69 percent of soldiers leaving Vietnam had

experimented with marijuana; 38 percent said they had tried opium and

34 percent heroin.16 By the end of American involvement in the war,

“more soldiers were being evacuated to the United States for drug

problems than for wounds.”17

Army leaders looked to the military justice system as a weapon in the

fight against rampant drug use. In 1970, Army authorities in Vietnam

arrested 11,058 soldiers for illegal drug possession, sale, or use-of

which 1,146 involved either opium or heroin.18 Many of these resulted

in courts-martial. A majority of the general courts prosecuted by Maj.

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Francis A. Gilligan at U.S. Army Support Command, Saigon, from July

1970 to July 1971 concerned drugs.19 Similarly, Capt. James O.

Smyser, assigned to the support command from August 1971 to June

1972, quickly discovered that many of the roughly 200 courts-martial

he prosecuted or defended were for drugs, usually heroin and other

highly addictive substances.20 And even successful soldiers had drug

problems. When Capt. Barry P. Steinberg, serving as a full-time special

court judge from June 1971 to February 1972, asked an accused for the

story behind the Silver Star ribbon he wore on his uniform, the man told

him that he could not remember as he had been “strung out on heroin” at

the time.21

Racial tension also played a part in the decline of discipline in

Vietnam. Although blacks and whites were united by common needs

during combat, the story was different in rear areas where race relations

were sometimes poor. Some black soldiers viewed the military as a

racist institution and saw Vietnam as a white man’s war.22 This belief,

combined with their experience of discrimination in the United States,

made some black soldiers suspicious of the mostly white officer and

noncommissioned officer corps. They also resented the attempts of

Army leaders to prohibit, as contrary to good order and discipline,

expressions of racial pride, such as black bootlace jewelry and neck

chains, “Afro” haircuts, and “dapping,” a racial salute involving a

series of mirrored, uniform motions. Sometimes racial unrest escalated

into violence. Although most brawls involved only a few soldiers, there

were some major confrontations. In 1968, more than 200 black

prisoners rioted at Long Binh jail, and in 1970, there was a race riot at

Camp Baxter in Da Nang. Friction between the races continued.23

Years later, one judge advocate observed that major contributing

factors in the deterioration of discipline and the complementary

challenges to authority were the unpopularity of the war, the perception

that black soldiers were disproportionately represented in the combat

arms, and racial dissent in the United States.24

The breakdown in discipline was reflected in “combat refusals,” the

official term for disobedience of orders to fight. Although most refusals

involved individuals, on at least two occasions company-size units

resisted lawful orders. In September 1969, a company of the 196th

Light Infantry Brigade refused to recover bodies from a downed

helicopter, and in April 1970, CBS Evening News reported the

reluctance of a company in the 1st Cavalry Division to advance down a

dangerous trail.25 The most serious mutinous activity, however, was

not the combat refusal. Rather, it was the killing or attempted killing of

88
officers and noncommissioned officers. Called “fragging,” slang

derived from the use of fragmentary grenades, it was carried out by

soldiers against unpopular or overly aggressive leaders. Because most

fraggings, or “assaults with explosives” as they were officially called,

resulted in injury rather than death, the Army concluded that “in the

majority of cases the intent is to intimidate or to scare.” Nonetheless,

with 209 reported fraggings in Vietnam in 1970, some resulting in

death, and with similar attacks continuing over the next two years,

Army leaders looked to the military justice system for a solution.26

During his year at U.S. Army Support Command, Qui Nhon, from

September 1969 to September 1970, Capt. John T. Edwards prosecuted

“maybe six cases of fraggings.” There were similar murders or

attempted murders during Maj. Leroy F. Foreman’s tenure as deputy

staff judge advocate of XXIV Corps from June 1969 to June 1970, but

involving Claymore mines rather than grenades, the former being

“easier to rig.” And Capt. Kenneth D. Gray, at U.S. Army Support

Command in Da Nang from August 1970 to August 1971, successfully

defended a soldier charged with attempting to murder his company

commander by placing a grenade under the “hooch” where the officer

lived. Probably all judge advocates serving as trial and defense counsel

participated in, or knew of, general courts-martial arising out of

fragging incidents.27

Given the Army’s disciplinary problems, a number of prominent

figures concluded that the Uniform Code did not work well in combat.

Writing in 1980 after the war, Generals Westmoreland and Prugh

remarked that the military criminal justice system “is too slow, too

cumbersome, too uncertain, too indecisive, and lacking in the power to

reinforce accomplishment of the military mission.”28 These words

echoed the views of many commanders, who felt that the system had

become “too permissive and overzealous in guarding the rights of

individuals,” to the detriment of discipline.29 Westmoreland and Prugh

proposed correcting the code’s shortcomings with a “special codal

provision” that would modify the Uniform Code in time of war or

military exigency to create a new “Code in Combat.”30

Questions in high places about the Uniform Code’s effectiveness

meant that the system of justice was ripe for scrutiny. In 1983 Judge

Advocate General Maj. Gen. Hugh J. Clausen, who had served in

Vietnam as the staff judge advocate at the 1st Infantry Division,

appointed a Wartime Legislation Team of Army lawyers to evaluate the

criminal justice system and recommend wartime improvements. The

team’s report concluded that “although the current system will work

89
with reasonable efficiency during a short, low intensity conflict, several

changes are necessary in order to be confident that the system will

operate efficiently during a general war.”31 Recommendations, many

of them prefigured by Westmoreland and Prugh, included amending

the Uniform Code to provide for courts-martial jurisdiction over

civilian employees accompanying the forces in time of “declared or

undeclared war,” to allow misconduct discovered during a pretrial

investigation conducted under Article 32 to be charged without a new

investigation, and to increase the commanders’ punitive powers in

imposing nonjudicial punishment under Article 15. The Wartime

Legislation Team also proposed amending the Manual for

Courts-Martial to allow the substitution of videotape or audiotape

recordings of court proceedings for a written record of trial and to

permit the investigating officer at an Article 32 investigation to

consider the unsworn statements of unavailable witnesses.32 A number

of the team’s recommendations were enacted by Congress or

implemented by the president. Congress amended the Uniform Code in

1983 so that the term “record” would include both written transcripts

and videotape or audiotapes. It also amended the code in 1995 to allow

misconduct discovered during an Article 32 investigation to be charged

without a new investigation. It is noteworthy that in making these

changes Congress did not distinguish between courts-martial in peace

or war. This rejection of the call for a special criminal law system for

combat reflected the view that transitioning from peace to war should

be accomplished with as little change as possible. Military justice, it

was concluded, would function less efficiently if commanders and

lawyers familiar with one set of rules had to learn new and unfamiliar

procedures while preoccupied with combat operations.

Claims

With the Army having single-service responsibility for processing

claims in favor of or against U.S. forces in Vietnam, claims remained a

significant part of USARV legal operations after 1970. As claims

payable to Americans under the Military Personnel Claims Act were

handled by unit claims officers, almost all work done by USARV

claims lawyers at the USARV Foreign Claims Division involved

claims filed by Vietnamese or other foreign nationals. These claims for

personal injury, death, or property damage caused by military or

civilian members of the U.S. forces resulted from both combat and

noncombat damage. As U.S. law forbids paying compensation for

combat-related damage, and as the Vietnamese government was

90
responsible for paying all claims arising from the combat activities of

American forces, USARV lawyers adjudicated only noncombat

claims. Vietnamese claimants, however, still initially looked to the

United States for compensation and, as 70 to 90 percent of the total

processing time in a foreign claim was spent investigating it, USARV

claims officials often discovered that a claim being processed as

noncombat-related was in fact the result of combat. This meant that

USARV Foreign Claims Division regularly cooperated with the

different agencies within the Saigon government responsible for the

payment of such claims under the Military Civic Action Program.33

By January 1970, the USARV Foreign Claims Division operated

two three-man foreign claims commissions with approval authority for

claims up to $15,000. Located in downtown Saigon, one commission

processed only those claims arising out of an April 1969 explosion at

the Da Nang ammunition supply point. Extensive damage to civilian

property from the explosion resulted in some 9,000 claims being filed

by November 1971. Some were fraudulent and others were untimely,

but all had to be processed.34 The other three-person commission

processed the routine workload received from the field at a rate of about

225 claims per month; all cases that could not be settled by a one-man

commission in an amount of $1,000 or less were forwarded to this

commission. The unusual case that exceeded the jurisdiction of this

three-man commission would be forwarded to the Pentagon for a

decision by the assistant secretary of the Army (financial

management).35

In addition to the two three-man commissions, twelve one-man

foreign claims commissions, with approval authority for claims up to

$1,000, also operated in Vietnam. Five were located in Saigon. The

remaining seven were in Da Nang (with XXIV Corps), Phuoc Vinh

(with the 1st Cavalry Division), Qui Nhon (with the U.S. Army Support

Command), Nha Trang (with I Field Force), Chu Lai (with the 23d

Infantry Division), and two one-man commissions at Camp Eagle near

Hue (with the 101st Airborne Division). In 1970 and 1971, these twelve

one-person commissions processed about 2,000 claims per year. In

1972, as the American presence dwindled, the number of claims filed

by Vietnamese nationals also declined, as did the number of one-man

commissions. USARV Foreign Claims Division, however, remained in

operation until 1973.36

During these final years of lawyering in Vietnam, USARV claims

judge advocates looked for solutions to three major questions. First,

should compensation be paid for combat-related damage or loss based

91
on the reckless and wanton conduct of U.S. forces? Second, who should

have claims responsibility upon complete withdrawal of U.S. forces

from Vietnam? Finally, what should be done about increasingly violent

Vietnamese-U.S. confrontations over claims for damage or loss?

Under U.S. law, appropriated monies could not be used to

compensate for combat-related damage or loss of life. The nature of the

war in Vietnam, however, meant that this prohibition seemed unfair.

The battlefield was anywhere and everywhere, with no identifiable

front lines and no safe area. This meant that innocent civilians could not

easily avoid the war or its suffering. Recognizing that compensation for

losses relating to the combat activities of U.S. forces could not be paid

under the Foreign Claims Act, but believing that this position was

wrong given the nature of the fighting, MACV decided that its

Assistance-in-Kind funds would be used to pay for some

combat-related damage. As a result, the USARV Foreign Claims

Division processed Vietnamese claims springing indirectly from

combat if the loss or damage was caused by reckless or wanton conduct

by U.S. forces. While injuries resulting from a firefight between U.S.

troops and guerrilla forces were not compensable, loss of life or damage

to property caused by a soldier on patrol who indiscriminately fired his

weapon into a village was compensable. Paying these claims

demonstrated that the Americans took responsibility for their own

behavior, showed the Vietnamese people that the law could confer a

benefit, and, it was hoped, fostered popular respect for law in

Vietnam.37

Who should have claims responsibility upon complete withdrawal

of U.S. forces from Vietnam? As early as October 1971, Maj. Ralph G.

Miranda, chief of the Foreign Claims Division, recommended to the

USARV staff judge advocate that a plan be formulated for processing

foreign claims submitted after U.S. forces departed. Miranda

anticipated that Vietnamese nationals would continue filing claims

then handled by the USARV Foreign Claims Division. He also believed

that when departing U.S. forces returned leased real properties prior to

the expiration of the leases, Vietnamese landlords would file

substantial claims against the United States. Maj. Miranda anticipated

that as U.S. troop strength decreased and various support agencies

terminated operations, the need for local national employees would

diminish, resulting in claims for termination pay.38 Finally, there

would also be claims arising out of contracts with Vietnamese

businesses for goods or services. After coordination with MACV and

the Air Force and Navy, it was decided that the Army would continue

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foreign claims processing at U.S. Army, Pacific. Thus, until 1975,

foreign claims were accepted at the Defense Attaché Office in Saigon

and by the U.S. consular staff throughout South Vietnam and then

forwarded for action to Army headquarters in Hawaii.39

The third claims issue of personal interest to claims judge advocates

was what could be done “to cool off potentially explosive situations”

involving claims for loss or damage. After 1970, as the Vietnamese saw

American units departing and as the backlog of claims cases increased,

one lieutenant general reported that “they visualize that the only means

of getting a prompt and adequate settlement is via the confrontation

approach.”40 On one occasion, several hundred Vietnamese claimants

blocked the entrance to a U.S. military compound in the XXIV Corps

area, refusing to leave until their claims were paid. The disturbance was

quelled only after the chief of the USARV Foreign Claims Division

flew from Saigon to Da Nang, met personally with the village and

hamlet chiefs, and assured them that “we would do all within our power

to settle the problem as soon as possible.”41

The danger posed to claims commissioners by these confrontations

was illustrated by the experiences of Capt. Donald A. Deline, the Da

Nang claims commissioner from May to September 1970. Arriving in

Vietnam in September 1969, Deline first served in Saigon at the

USARV claims office, processing mostly foreign claims. In May, he

was reassigned to Da Nang as a one-man claims commissioner. Foreign

claims work was additional duty for all seven one-man commissioners

located outside Saigon except in Deline’s Da Nang operation, which

processed about one-half of the 1,000 claims handled by the one-man

commissions. Da Nang’s heavier volume resulted from an April 1969

ammunition supply point explosion that caused extensive damage to

civilian property and formed the basis for some 5,000 claims over the

next two years.42

Capt. Deline’s offices were in a villa in downtown Da Nang, and

Vietnamese citizens came there during the day, filed their claims, and

were told when to return for payment in Vietnamese piasters. Typically

Deline picked up the money from the XXIV Corps finance office,

returned with it under guard to his office, and paid out exactly what he

had picked up. But it was not always this simple. One night in May

1970, a Vietnamese Army officer riding a motorcycle was struck by an

American military truck. A number of his fellow soldiers surrounded

the vehicle, refusing to let the American driver leave until the victim

had been compensated for the damage to his motorcycle. Although it

was 2200, Deline traveled to the accident, took photographs, and,

93
working with the Vietnamese officer victim, completed the claims

forms that evening. The unit commander with responsibility for the

American truck and driver wanted Deline to pay the victim’s claim

immediately, but Deline resisted, believing that any claim for damages

should go through the normal deliberative process.43

A week later a 2 1/2-ton Marine Corps truck struck and killed a

young Vietnamese boy. Knowing that confrontation had brought good

results for the motorcycle victim, a crowd of more than a hundred

Vietnamese surrounded the truck containing the marines and refused to

let it leave. The Marines requested that Capt. Deline go to the accident

scene. Arriving with some claims forms in his old International

Harvester truck, Deline discovered that concertina wire had been

placed around the Marine Corps truck. The dead child was lying on an

altar in front of the truck, and the boy’s mother and others were praying

loudly. Some South Vietnamese Army soldiers were also on the scene

and they, together with the local mayor, informed Deline that they

wanted money. About 2300, a Marine Corps officer appeared at the

scene. After making a small solatia payment to the victim’s family, he

and Deline started to leave the house in which the discussions had been

taking place. Although armed with a .45-caliber pistol, Deline was held

down in his chair; the Marine officer was escorted out.

For the next two to three very tense hours, Capt. Deline and the

Marines in the truck remained captive. Then, about 0200, a Marine

Corps colonel arrived by jeep with $3,000 to $5,000 in Vietnamese

piasters. This was his own money. The colonel laid it on the table. The

piasters were sufficient for the crowd to permit the colonel and the

Marines in the truck to drive away, leaving Deline by himself. The

Marine colonel returned his men to their barracks and then sent two

military policemen back for Deline, who was still being held hostage.

By now it was 0400; Deline did not know if he and the police “should

push our way out or not.” Finally, they did force their way out of the

house and, although the Vietnamese were yelling angrily and striking

the three Americans, Deline and the two military policemen escaped.44

Military Affairs

In the area of military affairs, USARV judge advocates provided

command advice on administrative law matters. Most work involved

advising on and later reviewing reports of investigation and elimination

of soldiers through the administrative discharge process. For example,

a war crime would be reported, USARV headquarters would appoint a

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lieutenant colonel investigating officer, and the military affairs judge

advocates would show the investigating officer how to conduct the

investigation. After the report was completed, another lawyer would

review it for legal sufficiency and appropriate recommendations. One

of the most celebrated investigations reviewed by USARV lawyers,

however, did not involve any war crime. Rather, it concerned the attack

by enemy sappers on Fire Support Base MARY ANN, an Americal

Division outpost up in I Corps.

In March 1971, a group of between fifty and sixty well-prepared

enemy penetrated MARY ANN’s perimeter and, tossing grenades and

satchel charges into the tactical operations center, killed or wounded

virtually all of the base’s officers. An investigation concluded that the

failure of the officers in charge to post guards or follow other proper

defensive procedures was grossly negligent and contributed directly to

the heavy American casualties—thirty dead and eighty-two

wounded.45 Maj. Suter, newly assigned to the USARV staff judge

advocate’s office, was tasked with reviewing the MARY ANN

investigation, fixing responsibility for the disaster, and recommending

an appropriate course of action. After digesting the classified report’s

eleven volumes, Suter briefed Lt. Gen. William J. McCaffrey, the

USARV deputy commander. Suter recommended no courts-martial,

but urged reprimands, administrative elimination action, and adverse

efficiency reports. McCaffrey approved all recommendations.46

Later, while serving as chief of the Civil Law Division, Maj. Suter

spearheaded the creation of USARV’s Drug Abuser Holding Center. In

response to Lt. Gen. McCaffrey’s demand that “something” be done

about soldier drug addicts, the USARV staff judge advocate created a

regulation transferring “all second time drug abusers” from any

subordinate USARV unit to the new holding center. Although located

in the old Long Binh jail, the center was not a confinement building, but

rather, as indicated by the freshly painted red cross on the side of the

structure, a medical facility. It housed soldiers needing treatment for

drug addiction until they could be administratively eliminated from the

Army and “medically evacuated” for treatment in the United States at a

Veterans Administration hospital. As any soldier arriving at the facility

was informed that he would receive either an honorable or a general

discharge, almost all waived the right to have a board of officers hear

the case. Under Suter’s supervision, the two judge advocates there,

working in tandem as recorder for the government and counsel for the

respondent, processed “1,500 soldiers in six months.”47 The Drug

Abuser Holding Center was a novel and efficient method for

95
eliminating soldiers whose drug addiction made treatment seem more

appropriate than punishment by courts-martial.

Lawyering in the Field

Until the last combat units left in 1972, judge advocates lawyered

actively and effectively with them. The experiences of military

attorneys at the 1st Cavalry, 25th Infantry, and 101st Airborne

Divisions illustrate lawyering in Vietnam in the final years.

1st Cavalry Division

Roughly forty judge advocates served with the 1st Cavalry Division

in Vietnam. Its first staff judge advocate, Lt. Col. Morris D. Hodges,

was followed by Lt. Cols. Emory M. Sneeden and Zane E. Finkelstein,

Maj. Sebert L. Trail, and Lt. Col. Bryan S. Spencer. By 1970, Lt. Col.

Ronald M. Holdaway was the staff judge advocate, and although the

division’s table of organization and equipment authorized five

attorneys, Holdaway had about fifteen lawyers.

Lt. Col. Holdaway and his attorneys were at the division’s main

headquarters at Phuoc Vinh, where about 500 troops worked and lived

96

Life at the 1st Air Cavalry Division, Camp Evans, South Vietnam (1968). From left to

right are: Chief Warrant Officer Daniel P. Koceja; Capt. Carroll J. Tichenor; and

Maj. Sebert L. Trail. Trail was the division’s staff judge advocate from 1968 to 1969.
in Spartan conditions. As a principal staff officer, Holdaway had better

accommodations than most; his cot was in a former French Foreign

Legion building located on the Phuoc Vinh compound. The JAG office

and living accommodations for the junior officers and enlisted

personnel were at a rubber plantation about 400 meters from the

compound. The buildings were so-called SEAHUTS (Southeast Asia

Huts) erected as temporary structures. There was no running water and

the latrines were outdoors. Enemy rocket attacks occurred frequently,

so most attorneys sandbagged their living areas for additional

protection. Every few weeks the 1st Cavalry Division’s lawyers would

wake to discover Viet Cong sappers caught in the concertina wire

surrounding the camp; living and working in Phuoc Vinh was not

without risk.48

Lawyering at the 1st Cavalry Division was different from practicing

law at other combat units. The division had been in almost continuous

combat since arriving in Vietnam in September 1965, and this meant, in

Lt. Col. Holdaway’s view, that although commanders “took their

military justice roles very seriously . . . it was a distraction from their

fighting mission.” Consequently, a commander taking action in a

particular criminal case wanted his judge advocate to summarize the

case very briefly and recommend a decision or specific course of

action. This way a heavy caseload could be disposed of quite

efficiently. As Holdaway remembered, a lawyer who did not or could

not provide terse and specific recommendations lost the trust and

confidence of his commander.49

The 1st Cavalry’s airmobility posed challenges for the lawyers. With

about 450 helicopters, the division was not dependent on ground

transport for movement, either tactically or administratively. This

meant that the 1st Cavalry had a very large area of operations and that its

firebases were located at great distances from headquarters where roads

did not go. In 1970, with all the lawyers located at the division main

headquarters, such activities as interviewing witnesses for trial,

advising convening authorities located outside of Phuoc Vinh, and in

some instances actively conducting trials at firebases required traveling

by air. Additionally, troops normally did not come into headquarters for

personal legal assistance or to file claims; judge advocates brought

legal services to them. Consequently, “the MO [Method of Operation]

for young counsel was to go down and hang around the helicopter pad

and hitch rides out to the firebases.” Once airborne, he still had a half

hour to an hour flight, no matter where he went. In addition to the young

captains, Lt. Col. Holdaway was typically airborne, often flying out to

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base camps and firebases to confer

with and advise commanders. As a

principal staff officer, he was

normally able to obtain a helicopter

for all his lawyerly missions. So, too,

before long, were his juniors-thanks

to the division chief of staff, Col.

(later Gen.) Edward C. Meyer, a

helicopter was dedicated one-half

day a week for use by the Army

lawyers. It was known as the

“lawbird” on the days it flew.50

Army lawyers provided the full

range of legal services during

Holdaway’s tenure, with military

justice occupying most attorney

time. One of the attorneys trying

courts-martial was Capt. Royce C.

Lamberth. After graduating from

law school in 1967, Lamberth was

drafted into the infantry. Once he

finished basic training, however, he

accepted a direct commission in the

Judge Advocate General’s Corps.

Lamberth served briefly as a judge advocate at XVIII Airborne Corps at

Fort Bragg before arriving at Phuoc Vinh in November 1969. He

immediately assumed a heavy courts-martial caseload, serving as both

a prosecutor and a defense counsel. While the general courts-martial

were tried at division headquarters, the inferior courts-martial were

often tried at the brigade bases because the commanders did not want

witnesses “leaving the field.” Consequently, Lamberth, accompanied

by the military judge and his opposing counsel, routinely flew in a small

unarmed observation helicopter out to these bases for the trials.

Proceedings were typically held in a tent.51

During his year in Vietnam, Capt. Lamberth tried more than 200

cases. The most memorable involved defending a team of six Rangers

accused of mutilating the bodies of enemy soldiers. The Rangers had

ambushed some North Vietnamese soldiers bicycling down the “Jolley

Trail,” a major infiltration route into South Vietnam. One or more of the

Rangers later boasted over a few beers that, after killing the enemy

soldiers, they had “cut open the bodies from throat to groin and stuffed

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1st Air Cavalry Division, January

1970. Left: Major Walter M. Mayer,

Deputy Staff Judge Advocate; and

Right: Lieutenant Colonel Ronald M.

Holdaway, Staff Judge Advocate.

During Holdaway’s tenure, the 1st

Cavalry lawyers were often airborne.

They flew out to base camps and

firebases to confer with and advise

commanders and bring legal

services to soldiers who needed

them.
them with rice” from the 100-pound burlap bags strapped to the enemy

bicycles. This “calling card” was intended to strike fear into any enemy

who later happened upon the dead men.

The Rangers, however, soon regretted telling their war story, as their

alleged mutilation of the dead was reported as a war crime. A lieutenant

colonel with the MACV inspector general’s office arrived at the 1st

Cavalry Division to interview the six Rangers. Each man had the same

story to tell: they had ambushed and killed the enemy but no mutilation

of the dead had occurred; that had just been bragging. After reducing

their statements to writing, the investigator asked the six Rangers to

submit to a polygraph. They balked. All asked for a lawyer, and

Lamberth was assigned to represent all six men. With his clients facing

courts-martial, Lamberth filed a motion requesting that Maj. Gen. Elvy

B. Roberts, the division commander, “produce” the bodies of the dead

North Vietnamese. He argued that only if the bodies were produced

would the six Americans “be able to establish their innocence.” After a

late night staff meeting that included the chief of staff and the G3

(operations), the commanding general decided it would be consistent

with planned operations in the area to send an aerial rifle platoon to

search for the bodies. Lt. Col. Holdaway insisted that the defense

counsel go on the mission to ensure there would be no later claim of a

cover-up. Holdaway then told Lamberth that he was departing by

helicopter at first light.52

Air Force jets and Cobra helicopter gunships “prepped” the insertion

site for the Huey utility helicopter, or “Slick,” carrying Lamberth and

the six Rangers. Then, about 100 feet above the bomb crater where the

insertion was to occur, the engine quit. The helicopter crashed.

Assuming that they were shot down, Lamberth, the only officer aboard

other than the warrant officer pilot, and the Rangers “fired like hell”

from their perimeter into the jungle. When no fire was returned, the men

realized that mechanical failure caused the crash. They radioed for a

Sky Crane helicopter to recover the crashed aircraft and for a new

“Slick” to pick them up. Meanwhile, Capt. Lamberth and the Rangers

walked the Jolley Trail. They found the bicycles, burlap bags

containing rice, and lots of blood. One soldier found an enemy bunker,

which was blown up with hand grenades. A bridge along the trail was

also destroyed. But there were no bodies, which really came as no

surprise to the six Rangers. Lamberth and his clients returned without

further incident. In the absence of corroborative evidence, no

courts-martial charges were preferred. After the events of Lamberth’s

trip become known, however, other soldiers facing courts-martial

99
charges requested him as their individual military defense counsel; “the

word got around” that this lawyer “would do anything for a client.”53

25th Infantry Division

Between 1966 when the division arrived and 1970 when its colors

left Vietnam for Hawaii, some twenty-five judge advocates served with

the “Tropic Lightning” Division. The first staff judge advocate was Lt.

Col. David T. Bryant. Following him were Lt. Cols. William A. Ziegler

and Jack Norton and Maj. Fred Bright, Jr. Official personnel records

show that the number of judge advocates at the division during this

period varied from six in 1967 to ten in 1970. But as U.S. Army,

Vietnam, continued supplementing the division’s legal operations with

attorneys serving in other branches, the legal workload in the 25th was

also borne by lawyers other than those in the Judge Advocate General’s

Corps.

The last staff judge advocate in Vietnam with the 25th Infantry

Division was Maj. Burnett H. Radosh, who arrived at division

headquarters at Cu Chi in January 1970. He had a legal staff of ten judge

advocates, plus one non-judge advocate lawyer. Radosh, who had

served as a captain with Col. Miller at 1st Logistical Command in 1966,

now was back for his second twelve-month tour in Vietnam as the top

100

Maj. Gen. Kenneth J. Hodson (center) visits Lt. Col. Fred J. Bright, Jr. (left) and Maj.

Richard K. Dahlinger (right) at the 25th Infantry Division, Cu Chi, Vietnam, in 1969.

Bright was the division’s staff judge advocate and Dahlinger was the deputy staff

judge advocate.
lawyer on the division staff. Drafted after completing law school in

1958, Radosh spent a short time as a Courts and Boards clerk before

receiving a direct appointment in the Judge Advocate General’s Corps

in 1959. He then served in the Defense Appellate Division in the

Pentagon; in the 1st, 3d, and 4th Logistical Commands in France; and in

the 82d Airborne Division, deploying for a short time with the division

to the Dominican Republic in 1965. After his first tour in Vietnam,

Radosh worked as a trial attorney at Contract Appeals Division in the

Office of the Judge Advocate General. When he arrived for his second

Vietnam tour in January 1970, Radosh was well prepared for duty.

Radosh and his attorneys “had a horrible workload at the 25th-stacks

and stacks of courts-martial.” There were hundreds of claims for

damaged property from soldiers and much legal assistance work to be

done, from replying to divorce petitions to drafting stays in civil

proceedings using the Soldiers’ and Sailors’ Civil Relief Act. The

“Tropic Lightning” lawyers also gave regular talks to division soldiers

on their obligations under the Law of War. The volume of work was so

great that Maj. Radosh, Deputy Staff Judge Advocate Maj. Richard K.

Dahlinger, and nine lawyers, assisted by ten enlisted soldiers, worked

six days a week, twelve hours a day. Sunday usually was a “day off,”

but often work had to be done that day, too. As the 25th had been at Cu

Chi since 1966, living conditions were fairly good. Radosh, for

example, lived in a hut with a tin roof. Although not air-conditioned,

this “hootch” was comfortable.

Although the practice of law was fairly routine, there were always

interesting legal questions. At an evening staff meeting, for example,

Maj. Radosh heard a briefer inform the division commander that a Viet

Cong prisoner had been used to lead troops through a minefield.

Radosh waited until the meeting ended, then told the commander and

the chief of staff that nothing could be more illegal under the Law of

War. On another occasion, prior to the 25th’s movement across the

border into Cambodia, Radosh inquired of Col. Williams, the MACV

staff judge advocate, what the legal status of U.S. forces would be once

inside Cambodia. Williams pointed to a map of Southeast Asia and

said, “as you advance the border advances.” That is, under traditional

international law, troops in combat are governed by the law of the flag;

in the absence of a Status of Forces Agreement with Cambodia, U.S.

law governed the activities of American troops in that country.54

One of the judge advocates at the 25th Infantry Division was Capt.

Howard R. Andrews, Jr. Having arrived in Vietnam as an enlisted field

artilleryman, Andrews, who was also an attorney, served several

101
months in fire direction centers in the 101st Airborne Division before

moving to that division’s legal operations. After receiving a direct

commission in the Judge Advocate General’s Corps, Andrews

transferred to the 25th Infantry in January 1970. Over the next three

months, he served at the 25th’s Cu Chi base camp, worked as chief of

international law, and also prosecuted and defended at courts-martial.

On 17 April 1970, Andrews flew by helicopter to the Long Binh

stockade to see a client who had recently been court-martialed. After

seeing this man, Andrews was invited to remain at Long Binh for a

party in honor of a fellow lawyer departing for the United States after a

year in Vietnam. Andrews, however, “had seven cases on his docket

and much to do” ; he decided instead to return to Cu Chi. He boarded a

regularly scheduled courier helicopter about 1800. Shortly after

takeoff, the helicopter struck a power line and crashed into the river.

Andrews and several others were killed. This accident gave Andrews

the unwanted distinction of being the only judge advocate killed in

Vietnam.55

101st Airborne Division

By 1970, the 101st’s main headquarters was at Camp Eagle outside

Phu Bai, and its staff judge advocate was Lt. Col. Carl Wellborn.

Wellborn, who enjoyed supplementing his legal work with missions as

a helicopter door gunner, had some seven judge advocates on his staff.

One of the newest was Capt. Benjamin H. White.

White, an ex-Medical Service Corps officer, had transferred to the

Judge Advocate General’s Corps in 1969. After a short stint as an Army

lawyer at Fort Stewart, Georgia, Capt. White attended the Judge

Advocate Officer Basic Course in Charlottesville, Virginia. From

there, he flew to Long Binh via Hawaii and Guam, finally arriving at

Camp Eagle in June 1970. A large compound having some 20,000

personnel, Camp Eagle was “about a mile wide and five miles long.”

Both division and support troops lived and worked there. For White, the

first order of business was finding a bunk and some jungle fatigues that

would fit him. After this, it was getting acclimated to conditions. “It

was hotter than hell . . . the office had metal desks and you put a towel on

the desk if you wanted to lean on it otherwise you would burn yourself.”

At night it got down to 90 degrees. There was no air-conditioning; an

electric fan was all that was available. When the monsoon season

started the first week of October, this meant wet and cool weather.

There was so much rain that “everything was wet... from October to

March the sun only came out about five times.” An electric light bulb in

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the ammunition box he used for storage kept things dry, and White also

kept his electric blanket on all day to keep his bunk dry. Off-duty hours

were spent playing foosball in the officers’ club, reading, writing

letters, playing chess, and drinking beer.56

For the first six months there, working ten to twelve hours a day,

seven days a week, Capt. White did both prosecution and defense work.

He was the trial counsel for one special court-martial jurisdiction,

prosecuting all special courts and general courts arising in that unit.

White was the defense counsel for all court cases coming out of the

division’s three brigades, division artillery, and aviation group.

Courts-martial ranged from murder and rape to drug abuse and

disobedience of orders. It was not unusual to prosecute a jury case

during daylight hours and, after the court-martial panel had recessed for

the day, to prosecute and defend judge-alone courts-martial into the

evening. Additionally, on more than one occasion the military judge

recessed the court proceedings because of incoming enemy rocket

fire.57

At the end of his first six months, Capt. White was given the option of

leaving the 101st for a “safer” assignment in the Saigon or Long Binh

area. He decided, however, that he liked where he was; “the

camaraderie was really great.” His seniority now meant he was the

chief of military affairs as well as a one-man foreign claims

commissioner. This meant reviewing reports of survey and reports of

investigation. It also meant traveling by jeep into the countryside with

his Vietnamese interpreter, paying claims. The typical claim was for

maneuver damage to farmland, but there also were payments to

Vietnamese who had been injured by 101st Airborne Division

vehicles.58

The Last Army Lawyers

U.S. Army, Vietnam/Military Assistance Command, Vietnam

With the withdrawal of the 3d Brigade of the 1st Cavalry Division in

June 1972, the American combat troop presence was at an end.

Although Troop F, 4th Cavalry, remained in the Saigon area as a

protective force, there was no longer a need for a separate Army

headquarters. USARV headquarters and the Long Binh facilities

closed, and a new unit, U.S. Army, Vietnam/Military Assistance

Command, Vietnam, emerged in October 1972. Initially, Col. Tenhet,

the new USARV/MACV staff judge advocate, and the twenty-two

judge advocates under his supervision at Tan Son Nhut continued the

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traditional legal business of prosecuting and defending courts-martial,

processing claims, providing legal assistance, and advising

commanders and staffs.

The 27 January 1973 signing of the Paris Agreement on Ending the

War and Restoring Peace in Vietnam, however, radically altered

business for USARV/MACV lawyers. Because the United States had

committed itself to withdrawing all its troops within sixty days, judge

advocates now had a two-month “roll-up phase” for all legal

operations, including winding up programs like those at the Advisory

Division that had existed for more than ten years. At the same time,

Army lawyers faced a new challenge in helping with the orderly

implementation of the Paris Peace Accords, including monitoring the

cease-fire and accounting for Americans held as prisoners of war or

missing in action. In short, rather than decreasing, legal work for the

USARV/MACV lawyers increased during February and March. The

judge advocates did their best in the chaos, but “trying to get organized

in a withdrawing Army was exceedingly difficult.”59

The plan was for complete legal services to be provided in the

“standdown phase” from “X,” the date of the agreement, to “X plus 35

days.” During the “withdrawal phase” from X plus 35 until X plus 59,

trials of courts-martial, adjudication and approval of Military

Personnel Claims, routine legal assistance, and formal administrative

law opinions were curtailed, except in urgent situations. After X plus

59, all judge advocate activities were completed or transferred to other

jurisdictions. Although there was “no insurmountable obstacle . . . in

providing legal support to the withdrawing Army,” USARV/MACV

legal operations suffered most from a loss of manpower. Lawyers were

needed to resolve expected and unexpected legal issues until X plus 59,

yet judge advocates were returning to the United States without

replacement.60

Military Justice

The challenge for USARV/MACV military justice practitioners was

cleaning up courts-martial actions left by departing units while keeping

up with the ongoing caseload. When Capt. Dennis M. Corrigan arrived

in Saigon in August 1972, Maj. Robert E. Murray, the USARV/MACV

chief of justice, showed him “a 20 by 15 foot room, full of tapes,

exhibits, and uncompleted records,” some of which were more than a

year old. The 1st Cavalry Division alone had left 160 general

courts-martial unfinished, all requiring the creation of a verbatim

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record of trial by transcribing hundreds of tapes of recorded testimony.

At the same time, the haphazard manner in which general court

proceedings had been left behind by withdrawing units created

significant problems. For example, although the accused had been

convicted of a charge, on more than one occasion that charge had to be

dismissed because in doing the posttrial review for convening authority

action, the supporting evidence was nowhere to be found. A soldier

convicted of selling heroin had the case against him dismissed because

the exhibit identified as the lab report was missing.61

Corrigan and Murray also had to keep up with the current caseload.

Though USARV/MACV headquarters was the only remaining general

court-martial convening authority in Vietnam after the departure of 1st

Cavalry Division’s 3d Brigade, all serious criminal misconduct

required prosecution by lawyers from Saigon traveling around the

country. With some 120 courts—martial on the docket at any one time,

judge advocates tried cases seven days a week. More than half the

general court caseload involved drugs, mostly heroin use and sale.

Guard offenses—sleeping on guard duty, leaving guard duty,

incapacitated for guard duty—were also prosecuted at general

courts-martial. Of course, USARV/MACV judge advocates also tried

and defended cases involving murders, rapes, robberies, and serious

assaults.

The withdrawal of U.S. forces, however, complicated even small

administrative matters. General court-martial convening orders, for

example, needed frequent amendments as court members departed

Vietnam for the United States. The chief obstacle for prosecutors,

however, was that under the terms of the Paris Peace Accords, as

interpreted by the Department of State, it was no longer possible to

bring witnesses back to Vietnam for any trials. More than a few serious

crimes could not be prosecuted because a witness present in the United

States, even if willing to return to Vietnam, could not do so. In January

1973 Capt. Corrigan prosecuted a MACV master sergeant who had shot

a Vietnamese woman in his barracks room a few months earlier. The

woman, shot through her cheek and neck, claimed that the accused had

held her on her knees with a pistol to her head to force her to perform a

sex act. The accused claimed he and the victim had struggled while

standing when she grabbed a $20 bill from his nightstand, and his pistol

had “gone off.” Critical to the government’s case was the testimony of

the MACV Support Command dentist who, having examined the

victim’s mouth, was prepared to testify that the shooting was no

accident. The dentist, however, had already shipped to Hawaii and,

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having departed Vietnam, could no longer return under the terms of the

Paris Peace Accords.62

Not surprisingly, the after-action report authored by Maj. Murray

and Capt. Corrigan advised that procedures be created to effect an

orderly handoff of cases during any future withdrawal. Earlier, as units

had inactivated or redeployed, they had handed their cases off to other

units. But at the end, when the troop units were gone, the remaining

cases ended up with USARV/MACV judge advocates, who lacked the

resources to deal with them. As it was, Murray tasked a senior

noncommissioned officer and nine to ten court reporters with

transcribing the tape-recorded proceedings of the court cases left

behind by the 1st Cavalry Division. It took several months to eliminate

the backlog. Corrigan and Murray also recommended that “legislative

or Manual for Courts-Martial changes” be made, “easing the rules for

use of depositions or creating other alternatives to returning witnesses

during a withdrawal.”63

Despite the chaos of lawyering in the last few months, military

justice functioned relatively well until the end. In March 1973, when

Capt. Corrigan, accompanied by a court reporter and legal clerk, left

Vietnam, he was manacled to the last prisoner from the Long Binh jail.

Arriving in Hawaii by airplane, Corrigan turned the accused over to the

25th Infantry Division at Schofield Barracks. That division had the

distinction of prosecuting the last court-martial from Vietnam.64

Administrative Law, Legal Assistance, International Law,

and Claims

USARV/MACV judge advocates continued providing complete

legal services in all areas, but after the signing of the Paris Peace

Accords, functions were ranked in order of importance. Administrative

law continued, but expertise at the action-officer level was lost with the

departure of experienced lawyers after X plus 10. Although plans called

for legal assistance on an emergency basis only, USARV/MACV

lawyers were able to give advice when needed by military and civilian

personnel. The Defense Attaché Office legal adviser agreed to provide

legal assistance for those eligible personnel remaining in Vietnam at

the end of the withdrawal.65

Claims payable under either the Military Personnel Claims Act or

the Foreign Claims Act were adjudicated until the middle of March

1973. After discontinuing operations, the USARV Claims Office

forwarded its remaining 100 military personnel claims to U.S. Army,

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Pacific, for action. Additionally, the Defense Attaché Office agreed to

accept future claims and to forward them to Hawaii for adjudication.

Similarly, while continuing to process noncombat claims filed by

Vietnamese and other foreign nationals, Maj. James A. Murphy, chief

of the Foreign Claims Division, arranged for the Defense Attaché

Office in Saigon and U.S. consuls general throughout Vietnam to

accept future foreign claims for forwarding to a newly created Foreign

Claims Commission at U.S. Army, Pacific, for adjudication. All

pending foreign claims were transferred to the new commission in

mid-March 1973.66

Finally, all functional files for USARV/MACV legal operations

were boxed and delivered to the USARV adjutant general for shipment

to the U.S. Army, Pacific records holding area for retirement. Selected

records, however, were air mailed or hand carried by judge advocates to

Hawaii when they left Vietnam. Certain administrative law opinions

and records of trial in cases pending convening authority action or

appellate review fell into this category.67

Four-Party Joint

Military Commission

On 27 January 1973, the

United States, South Vietnam, North Vietnam, and

the Provisional Revolutionary Government (or Viet

Cong) signed the Agreement on Ending the War

and Restoring Peace in

Vietnam. This agreement,

also known as the Paris

Peace Accords, established

a cease-fire and required the

withdrawal of all remaining

American, Australian, New

Zealander, and South Korean forces within sixty

days. Overseeing this final

troop pullout was the

Four-Party Joint Military

Commission, which was

to serve as a forum for

107

The Paris Peace Accords signed on 27 January

1973 created a Four-Party Joint Military Commission to oversee the implementation of the

agreement. The main commission sat in Saigon; seven regional commissions were established throughout the country. Army judge

advocate Capt. Arthur F. Lincoln (far right) was

an official member on the Region IV commission. To his left are the Chief, North Vietnam

Delegation; Chief, Provisional Revolutionary

Government (Viet Cong) Delegation; and Chief,

Army of the Republic of Vietnam Delegation.
communication among the four

parties, assist in the implementation of the agreement, and help

verify compliance with it. Additionally, the commission was to

arrange the return of prisoners of

war and gather information about

those missing in action.68

As Article 16 of the Paris

agreement gave the Joint Military

Commission a lifespan of only

sixty days, the commission was

organized quickly. The four parties agreed that the commission

would be headquartered in Saigon

and that seven regional joint military commissions would be set

up. Military representatives of

each of the four parties were appointed for Saigon and for each

region. Having decided that

Army judge advocates should

participate in the work of the Joint

Military Commission, Col.

Tenhet, the USARV/MACV staff

judge advocate, selected Maj.

Paul P. Dommer, the incumbent

chief of the Advisory Division, as

the legal adviser to the U.S. delegation to the central Four-Party

Joint Military Commission in Saigon for the sixty days of that organization’s life.69 More junior judge advocates from Tenhet’s office

were detailed as legal advisers to the regional joint military commissions.70

Capt. Vahan Moushegian, Jr. was one of those selected as a regional

joint military commission legal adviser. Arriving in April 1972 as a

military intelligence officer, Moushegian worked as a MACV

intelligence desk officer for Cambodia and Laos before transferring to

the Judge Advocate General’s Corps in November 1972. Assigned to

the USARV staff judge advocate’s office, Moushegian prosecuted

108

As a member of the Region IV commission, Capt. Lincoln carried this “credentials” card as proof of this official status.

The reverse contains the following language: ‘The holder of this card is a member of the Four-Party Joint Military

Commission established by the Agreement on Ending the War and Restoring

Peace in Vietnam. When implementing

the mission entrusted by the Four-Party

Joint Military Commission, presentation

of this certificate is sufficient and all administrative and military legal authorities are strictly responsible to grant him

protection and assistance in every respect as stipulated in the Agreement and

its Protocols.’
special courts-martial under the supervision of Maj. Murray, the

USARV chief of justice, until the signing of the Paris Peace Accords.

Moushegian then joined the joint military commission in Region V,

located in Bien Hoa, north of Saigon. Col. Walter F. Ulmer, the chief of

the U.S. delegation, informed Moushegian that he was to be “the

delegation’s expert on the Paris Peace Accords,” and in the formal

meetings of the Region V commission that followed Moushegian

advised and assisted both Col. Ulmer and the deputy chief of the U.S.

delegation. Because Col. Ulmer’s Viet Cong counterpart “never came

out of the jungle” to represent the Provisional Revolutionary

Government, the commission’s four deputy chiefs of delegation soon

were meeting a few hours every other day around a square table covered

with green felt.

In discussing the intent and implementation of the Paris Peace

Accords, the participants wrangled constantly over how the provisions

should be interpreted; thus, little was achieved at the formal sessions.

The meetings ranged from the significant (repatriation of American and

South Vietnamese prisoners of war) to the ordinary (the ability of the

North Vietnamese and Viet Cong delegations to travel freely

throughout Region V) to the absurd (whether the fans at the conference

table adequately cooled the attendees). Generally, while the

Provisional Revolutionary Government and the North Vietnamese

were in agreement and supported each other, the Americans and South

Vietnamese were sometimes at odds, making it difficult to present a

united front or to pursue a common strategy in the talks. Additionally,

as the Paris Peace Accords required any decision reached by the Joint

Military Commission to be unanimous, one party’s objection blocked

any progress.71

Capt. Moushegian’s role evolved over time to where he also

assumed, in addition to his responsibilities as the legal adviser, the

duties of principal liaison officer for the U.S. delegation. Thus, when

the deputy chiefs of delegation stopped having formal meetings

because of a lack of measurable progress, the liaison officers were

instructed to meet regularly to ensure there was continued dialogue on

the implementation of the Paris Peace Accords. That said, “almost

nothing was accomplished by the Joint Military Commission,” in

Moushegian’s view, because “there were only eight weeks [and] the

Viet Cong and North Vietnamese would not agree to anything because

they knew the United States was leaving Vietnam.”72

109
Four-Party Joint Military Team

On 27 March 1973, U.S. Army, Vietnam/Military Assistance

Command, Vietnam, dissolved and the last American combat troops

left Vietnam. The Four-Party Joint Military Commission also ceased

operation, and Maj. Dommer, Capt. Moushegian, and the other judge

advocates working with it left for the United States. A new

organization, the Four-Party Joint Military Team, now replaced the

Joint Military Commission. From the perspective of the U.S.

delegation, this new Joint Military Team had two functions: locating

and recovering the remains of Americans who had died in captivity and

discovering the whereabouts of those still missing in action.

A lone Army lawyer now served in Vietnam, assigned as the legal

adviser to the U.S. Delegation to the Joint Military Team. The first legal

adviser was Maj. Charles R. Murray, who served with the team from the

end of March until the middle of July. His replacement was Capt.

Jerome W. Scanlon, Jr. A former field artillery officer with service in

Germany, Scanlon transferred to the Judge Advocate General’s Corps

in 1969. He then served at Fort Dix, New Jersey, and, while attending

110

Capt. Jerome W. Scanlon, Jr., legal advisor to the Four-Party Joint Military Team,

examines documents provided by the North Vietnamese at a 6 March 1974 meeting

in Hanoi. Although a judge advocate, Scanlon wore general staff insignia at the

direction of the chief of staff of the U.S. delegation. Scanlon, who served in Vietnam

from July 1973 to July 1974, was one of the last military lawyers in Vietnam. He

retired as a lieutenant colonel in 1985.
the Judge Advocate Officer’s Advanced Class, volunteered for Vietnam and

duty with the Joint Military

Team. In July 1973, after arriving at Tan Son Nhut,

Scanlon was picked up by

Murray and a driver in a government sedan. While riding

in this car to the Joint Military Team’s offices, the two

Army lawyers unexpectedly

found themselves under fire.

Traveling in front of their vehicle was a Vietnamese

Army truck full of prisoners

on their way to jail at Tan

Son Nhut. One of the prisoners jumped out of the truck to

escape, running past the sedan carrying Scanlon and

Murray. Without hesitation, a Vietnamese Army guard opened fire on

the escapee with his M16 rifle. His bullets, however, missed the prisoner, striking the car carrying the lawyers. Fortunately, no one was hurt,

and the escapee was recaptured. Yet, as this was his first day in country,

Scanlon was sure “it would be a long year.”73

Arriving without further incident at the Joint Military Team’s

offices, Scanlon was assigned to the Negotiation Division. His job was

to advise Col. William W. Tombaugh, the chief of the U.S. delegation,

on the rights and obligations of all parties under the Paris Peace

Accords. As the chief focus of the U.S. delegation was learning what

happened to those personnel who had died while prisoners or who

remained missing in action, this meant compiling files on missing

Americans and also excavating areas under North Vietnamese and Viet

Cong control in search of the remains of Americans believed buried

there.

Capt. Scanlon participated in all the meetings of the Joint Military

Team at which the U.S. delegation shared information on those missing

in action or notified the North Vietnamese and Viet Cong of the U.S. intent to dig at likely grave sites in areas under their control. Scanlon also

reviewed files on missing persons prior to the release of those papers to

111

Major William K. Suter, Deputy Staff Judge

Advocate, USARV, is decorated with the

Bronze Star Medal by his boss, Colonel

William O’Donovan, Staff Judge Advocate,

USARV, at Long Binh, April 1972. Suter

subsequently served as the Assistant Judge

Advocate General from 1989 to 1991. He has

been the Clerk of Court, U.S. Supreme Court,

since retiring as a major general in 1991.
the North Vietnamese or Viet Cong. The United States, for example,

had information from prisoners of war already released that a particular

individual had been seen alive in North Vietnamese or Viet Cong custody. When the captors denied any knowledge of the missing person’s

location, the U.S. delegation released its evidence to them. Scanlon’s

task was to examine each file, ensuring not only that the information in

it was accurate but also that any information disclosed was properly declassified.

During his year in South Vietnam, Scanlon journeyed by C-130

aircraft to Hanoi more than ten times. The purpose of these trips was to

gain information about those Americans still missing in action. Scanlon

and the other members of the U.S. delegation toured the infamous

“Hanoi Hilton,” where downed American pilots and aircrews had been

held as prisoners of war, and made contacts with North Vietnamese

government officials who might provide them with information about

missing or dead Americans.

When Capt. Scanlon departed Vietnam in July 1974, he was replaced

by Maj. J. Lewis Rose. Rose, who arrived in August 1974, continued

providing the same legal services as had Scanlon. When Saigon fell on

30 April 1975, Rose was performing temporary duty in Hong Kong.

Consequently, his tour with the Joint Military Team ended earlier than

he or anyone else expected.

Summing Up

Army lawyers on duty in Vietnam between 1970 and 1975 faced

challenges much different from those judge advocates who served in

Southeast Asia in the early years of the conflict or during the massive

buildup of the late 1960s. At MACV, Army lawyers like Col. Weaver

continued their unique advisory efforts. At USARV, judge advocates

like Maj. Suter wrestled with a new military justice system and a soldier

population beset by drug addiction, racial strife, and mutinous

behavior. In the field, military attorneys like Capt. Lamberth took to

the air to ensure the delivery of legal services to front line commanders

and their troops. And, as the American presence in Vietnam

diminished, some judge advocates like Capts. Moushegian and Scanlon

used their abilities in high-level political-military negotiations.

Almost without exception, these Army attorneys, like their

predecessors in Southeast Asia, adopted new approaches in their

lawyering and enhanced mission success in ways not ordinarily

considered the province of judge advocates.

112
Notes

1. Interv, author with Brig Gen Joseph N. Tenhet, Jr., 16 Oct 96, Historians files,

OTJAG.

2. Demma, “U.S. Army in Vietnam,” 672-83.

3. Ibid., 687.

4. Ibid., 688.

5. Ibid., 688-89.

6. Prugh, Law at War, 51.

7. Ibid., 53.

8. Ibid., 59.

9. The first female judge advocate in Vietnam, Maj. Ann Wansley, served at U.S.

Army, Vietnam, in 1966 and 1967. The second, Maj. Nancy A. Hunter, served at

the 4th Transportation Command in 1970.

10. For statistics on U.S. Army disciplinary actions in Vietnam from 1965 to 1972,

see Prugh, Law at War, 154.

11. Interv, author with Persons, 17 Sep 96.

12. Harold E. Parker, “Report of TJAG-Army,” Judge Advocate Journal 43 (May

1971):7.

13. Kenneth J. Hodson, “Report of TJAG-Army,” Judge Advocate Journal 41 (Mar

1969):7.

14. Robert D. Heinl, “The Collapse of the Armed Forces,” Armed Forces Journal (7

June 1971):37.

15. Ibid., 30-31.

16. Hammond, Military and the Media, 1968-1973, 392.

17. Ibid., 390.

18. Prugh, Law at War, 107.

19. Interv, author with Col Francis A. Gilligan, 26 Jun 96, Historians files, OTJAG.

20. Interv, author with Col James O. Smyser, 24 Jun 96, Historians files, OTJAG.

21. Interv, author with Col Barry P. Steinberg, 19 Aug 96, Historians files, OTJAG.

22. MACV, Command History, 1971, II:x-9.

23. Hammond, Military and the Media, 1968-1973, 176, 382. See also Solis,

Marines and Military Law in Vietnam: Trial by Fire, 129.

113
24. Interv, author with Steinberg, 19 Aug 96.

25. Hammond, Military and the Media, 1968-1973, 378-79.

26. Ibid., 385.

27. Intervs, author with Col John T. Edwards, 3 Jul 96; author with Col Leroy F.

Foreman, 26 Jun 96; author with Maj Gen Kenneth D. Gray, 23 Jul 96; author

with Honorable Herman F. Gierke, 26 Jun 96; author with Gilligan, 26 Jun 96;

author with Tenhet, 25 Oct 96, all in Historians files, OTJAG. See also Berry,

Those Gallant Men, 66-71; Lewy, America in Vietnam, 155-56.

28. William C. Westmoreland and George S. Prugh, “Judges in Command: The

Judicialized Uniform Code of Military Justice in Combat,” Harvard Journal of

Law and Public Policy 3 (1980):4.

29. Lewy, America in Vietnam, 160.

30. William C. Westmoreland and George S. Prugh, “Judges in Command: The

Judicialized Uniform Code of Military Justice in Combat (A Draft Code

Amendment),” Harvard Journal of Law and Public Policy 4 (1981):199-201. For

further commentary supporting the view that military justice failed in Vietnam,

see Solis, Marines and Military Law in Vietnam: Trial by Fire, 241-44.

31. Report to the Judge Advocate General by the Wartime Legislation Team, Sep

83, 51, Historians files, OTJAG.

32. Ibid., 13-36.

33. Prugh, Law at War, 85.

34. DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 5 Nov

71, sub: Da Nang Ammunition Dump Cases, box 3, Records of the USARV Staff

Judge Advocate, Foreign Claims, RG 472, NARA.

35. Memo, USARV Staff Judge Advocate for Deputy Commanding General

USARV, 22 Jan 71, sub: Foreign Claims Operations, box 3, Records of the

USARV Staff Judge Advocate Section, RG 472, NARA.

36. Ibid.; Prugh, Law at War, 83.

37. Memo, USARV Staff Judge Advocate for Deputy Commanding General

USARV, 22 Jan 71, sub: Foreign Claims Operations.

38. DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 11 Oct

71, sub: Claims Against the United States Government, box 3, Records of the

USARV Staff Judge Advocate Section, RG 472, NARA.

39. Summary of After Action (SAA), Staff Judge Advocate, USARV/MACV

Support Command, 1973, Historians files, OTJAG.

114
40. Msg, Lt Gen Welborn G. Dolvin, CG, XXIV Corps, to Gen Creighton W.

Abrams, COMUSMACV, 27 Aug 71, sub: US/VN Confrontations, box 3,

Records of the USARV Staff Judge Advocate Section, RG 472, NARA.

41. DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 12 Nov

71, sub: Confrontation at HQ XXIV Corps, box 3, Records of the USARV Staff

Judge Advocate Section, RG 472, NARA.

42. Interv, author with Col Donald A. Deline, 18 Sep 96, Historians files, OTJAG.

43. Ibid.

44. Ibid.

45. Hammond, Military and the Media, 1968-1973, 505-08. See also Keith W.

Nolan, Sappers in the Wire: The Life and Death of Firebase MARY ANN

(College Station, Tex.: Texas A&M University Press, 1995).

46. Interv, author with Maj Gen William K. Suter, 25 Jul 96, Historians files,

OTJAG.

47. Ibid.

48. Interv, author with Holdaway, 24 Jul 96.

49. Ibid.

50. Ibid.

51. Interv, author with Honorable Royce C. Lamberth, 29 Jul 96, Historians files,

OTJAG.

52. Ibid.

53. Ibid.

54. Interv, author with Radosh, 10 Jul 96.

55. Ltr, Maj Burnett H. Radosh to Mr & Mrs Howard R. Andrews, 23 Apr 70,

Historians files, OTJAG. Only one other Army lawyer died in Vietnam. He was

Lt. Col. Harold D. Krashes, who took his own life in 1971 while serving as staff

judge advocate of the 23d Infantry Division.

56. Interv, author with Col Benjamin H. White, 5 Sep 96, Historians files, OTJAG.

57. Ibid.

58. Ibid.

59. Interv, author with Col Dennis M. Corrigan, 9 Jul 96, Historians files, OTJAG.

60. SAA, Staff Judge Advocate, USARV/MACV Support Command, 1973, 5.

61. Interv, author with Corrigan, 9 Jul 96.

115
62. Ibid.

63. SAA, Staff Judge Advocate, USARV/MACV Support Command, 1973, 7.

64. Interv, author with Corrigan, 6 Jul 96.

65. SAA, Staff Judge Advocate, USARV/MACV Support Command, 1973, 3, 5.

66. Ibid., 5.

67. Ibid., 2.

68. William E. Le Gro, Vietnam from Cease-Fire to Capitulation (Washington,

D.C.: Government Printing Office, 1981), 18.

69. Prugh, Law at War, 49.

70. Interv, author with Col Vahan Moushegian, Jr., 24 Jun 96, Historians files,

OTJAG.

71. Ibid.

72. Ibid.

73. Intervs, author with Lt Col Jerome W. Scanlon, 2 Aug, 28 Oct, and 30 Oct 96,

Historians files, OTJAG. The rest of the section is based on these interviews.

116
Conclusion

This history of judge advocates in Vietnam records the experiences

of a multitude of talented and dedicated soldiers. It captures their

individual stories and answers the questions “Who was there?” and

“What did they do?” But the narrative also demonstrates that the nature

of the war in Vietnam required judge advocates to take new approaches

in providing legal services and also to look at non-traditional ways to

enhance mission success.

In Vietnam, the old concept that a deployed judge advocate should

support the mission by delivering the same legal services offered in a

peacetime garrison environment was supplanted by a new idea: that,

while a judge advocate in a combat environment might still prosecute

and defend at courts-martial, adjudicate claims, and provide legal

assistance, an Army lawyer must take his legal practice to commanders

and soldiers in the field. That same judge advocate must also look for

new ways of using the law and his skills to enhance mission success.

Consequently, while Army lawyers should not routinely perform

nonlegal duties, the conflict in Vietnam showed that they could—-and

should—-seek ways to use their analytical training as lawyers to

recognize and solve nonlegal problems if necessary for mission

accomplishment. As a result of this new idea about the role of the judge

advocate in combat, an increasing number of Army lawyers assumed

nontraditional roles—and addressed issues ordinarily handled by other

staff principals.

From 1959 to 1962, while serving as the first judge advocates in

Vietnam, Colonels Durbin and Eblen looked for ways in which the law

could further the mission of their Military Assistance Advisory Group.

Then Colonel Prugh, MACV staff judge advocate from 1964 to 1966,

took even more far-reaching initiatives. Prugh led efforts to persuade

the South Vietnamese military that its conflict with the Viet Cong and

North Vietnamese was no longer an internal civil disorder. As a direct

result of his work, the military—and later the government of South

Vietnam—acceded to the American view that the insurgency was an

armed conflict of an international character and that the benefits of the

1949 Geneva Prisoners of War Convention should be given to all

captured Viet Cong and North Vietnamese soldiers. This was a public

relations coup for the South Vietnamese. At the same time, applying the

benefits of the Geneva Convention to those combat captives held in

South Vietnam also enhanced the opportunity for survival of U.S.

servicemen held by the Viet Cong and the North Vietnamese.

117
Colonel Prugh also reasoned that American lawyers under his

authority could support U.S. military and political aims in Vietnam by

helping to educate the Vietnamese about the beneficial effect of the rule

of law in society. According to Prugh, “those who are familiar with the

ways to combat insurgency have come to recognize that the law and

lawyers have one of the most significant parts to play.” That is,

instilling a respect for law and order would support South Vietnam in its

campaign against the terrorist activities of the Viet Cong and their

North Vietnamese allies. With this goal in mind, Prugh created the Law

Society of Free Vietnam. This fostered personal associations with

South Vietnamese lawyers and established a forum for educating them

about American legal ideas “in a manner they could accept without

resentment.” If the Vietnamese saw how the rule of law benefited U.S.

society, they might conclude that a similar approach could improve

their own legal institutions—and help counter the Communist-led

insurgency.

Finally, Prugh established a unique legal advisory program that

monitored the real-world operation of South Vietnam’s military

criminal justice system. As a result, long after George Prugh’s return to

the United States, MACV judge advocate advisers used their legal

talents to assist the Vietnamese military on issues ranging from

desertion control, resources control, and security operations to

obtaining transportation for Vietnamese judge advocates, providing

storage for records of trial, and obtaining materiel for local prisons.

As the war continued, Army judge advocates continued to take

individual initiatives in supporting combat operations in Vietnam. At

MACV headquarters, Colonel Haughney and his staff promulgated the

first procedural framework for classifying combat captives, using

so-called Article 5 tribunals. While the MACV provost marshal was

primarily responsible for advising the Vietnamese on prisoner of war

issues, judge advocates spearheaded efforts in this area—and also took

the initiative in establishing a records system identifying and listing all

prisoners of war. Similarly, while investigating and reporting war

crimes were not judge advocate responsibilities, MACV lawyers took

the lead in formulating guidance on investigating and reporting such

crimes. By 1968 the Military Assistance Command, Vietnam, had

decided, as a matter of policy, that judge advocates would be the

primary focal point for all war crimes issues.

Judge advocates also enhanced mission success by providing legal

support to decision makers outside the Army and the Department of

Defense. Like his predecessors, Colonels Prugh and Haughney,

118
Colonel Williams, MACV staff judge advocate from August 1969 to

July 1970, provided legal advice to the U.S. ambassador and his staff.

As the senior government lawyer in Vietnam, it was only natural for the

MACV staff judge advocate to respond directly to inquiries from the

top State Department officer in the country. In addition to meeting at

least weekly with the U.S. ambassador, however, Colonel Williams

expanded his role as an adviser and counselor while a member of the

Irregular Practices Committee. This committee was composed of

civilian representatives of the U.S. Overseas Mission and officers from

MACV staff sections, including Colonel Williams as the MACV staff

judge advocate. While officially tasked with coordinating the

suppression of black-marketing, currency manipulation, and other

illegal activities affecting the Vietnamese economy, the committee’s

composition naturally made it a clearinghouse for a variety of policy

issues—and a point of contact for Saigon government officials seeking

assistance. As a result, by the time he departed Vietnam in 1970

Colonel Williams was conferring weekly with the Vietnamese minister

of finance, the director of customs, the minister of economy, and

representatives of the U.S. Agency for International Development and

the U.S. embassy.

Meanwhile, Army lawyers outside Saigon used their individual

talents and abilities in a variety of nontraditional ways. At USARV

headquarters in Long Binh, for example, after General McCaffrey

demanded that “something” be done about soldier drug addicts, Major

Suter spearheaded the creation of a Drug Abuser Holding Center.

There, “all second time drug abusers” from any subordinate USARV

unit were held until they could be administratively eliminated from the

Army and medically evaluated for treatment in the United States. This

was a novel and efficient method for handling soldiers whose drug

addiction made treatment more appropriate than punishment by

courts-martial.

Army lawyers at brigades and divisions in the field took similar

initiatives. At the 5,000-man 173d Airborne Brigade, for example,

Captain White volunteered to work as an operations officer in addition

to his judge advocate duties. Further, after General Williams, the

commander, lost confidence in the ability of his brigade adjutant to

process awards and decorations properly, Captain White and the

brigade’s other judge advocate assumed these G1 duties. Another

example of an Army lawyer enhancing mission success in new ways

was Colonel Holdaway’s innovative approach to practicing law in the

Army’s new airmobile experiment, the 1st Cavalry Division. With

119
about 450 helicopters, the division had a very large area of operations,

and this meant that Holdaway and his lawyers had to take their legal

services to the field. As a result, the division’s military attorneys were

often airborne, flying out to basecamps and firebases on the “lawbird”

to confer with and advise commanders—as well as provide personal

legal assistance to their soldiers.

Finally, after the signing of the Paris Peace Accords, judge advocates

serving on the Four Party Joint Military Commission and Four Party

Joint Military Team between 1973 and 1975 did more than traditional

lawyering. Thus, Captain Moushegian served as the U.S. delegation’s

expert on the peace treaty’s provisions and also assumed the duties of

principal liaison officer—meeting regularly with his Viet Cong, South

Vietnamese, and North Vietnamese counterparts in what was

essentially a diplomatic role. Similarly, Captain Scanlon, one of the last

Army lawyers to serve in Vietnam, advised the chief of the U.S.

delegation on the rights and obligations of all parties under the Paris

Peace Accords. But Scanlon also assisted in gathering information on

Americans still missing in action—which meant traveling to Hanoi,

touring the infamous “Hanoi Hilton,” and making contact with North

Vietnamese government officials who might provide information

about missing or dead Americans.

What was the reason for this significant number of individual

initiatives? Certainly the nature of the Vietnam War itself encouraged

nontraditional approaches to mission accomplishment. The

unconventional nature of the guerrilla insurgency required responses

that were novel, if not radical. The Army experimented with an

airmobile division and created new combat units—Special

Forces—adept at both combat and “winning hearts and minds.” Seen

from this perspective, efforts such as Prugh’s advisory program were a

perfect complement to initiatives in the Army generally.

Another reason for increased individual initiative, however,

certainly resulted from the reality that there were more lawyers in the

Army than ever before. During World War II, for example, an armored

division of 11,000 soldiers was authorized one judge advocate on its

Table of Manpower. As other divisions were similarly structured,

judge advocates participating in the fighting in Europe or the Pacific

had little time for issues outside the established areas of military justice,

claims, legal assistance, and administrative law. But, as the Judge

Advocate General’s Corps increased in size during the Vietnam

buildup—-an expansion that accelerated after more lawyers were

needed to satisfy the new requirements of the Military Justice Act of

120
1968—-there simply were more judge advocates in the corps. Many

were not content to adhere to the old concept of the traditional role of

lawyers in uniform. Better-educated, exceptionally energetic, and

unfettered by old approaches to lawyering, these judge advocates

looked for new ways to serve.

By the time the war ended in Vietnam, an increasing number of judge

advocates had taken individual initiatives to enhance mission success

in ways not ordinarily considered to be part of normal judge advocate

duties. As future events would show, the role of the judge advocate

would change as a result of the Army’s experiences in Vietnam. It

would no longer be enough for Army lawyers deployed in military

operations to support their units in the same manner as judge advocates

would support a commander and staff at a U.S. Army installation

during peacetime. On the contrary, the My Lai massacre and the

resulting Department of Defense creation of a Law of War

program—and a subsequent and complementary Joint Chiefs of Staff

directive requiring the chairman’s legal counsel to review all

operations plans—required the Army’s legal corps to take primary

responsibility for ensuring that “the Armed Forces of the United States

shall comply with the law of war in the conduct of military operations

and related activities in armed conflict.”

A few perceptive Army lawyers realized that this meant judge

advocates must review all operations plans, concept plans, rules of

engagement, execution orders, deployment orders, policies, and

directives to ensure compliance with the Law of War, as well as with

domestic and international law. These same military lawyers also

recognized that this could best be accomplished if judge advocates

were integrated into operations at all levels, and while Army lawyers

were not routinely to perform nonlegal duties, effective integration

would sometimes require judge advocates to take on nonlegal tasks.

That story—the increasing integration of judge advocates into Army

operations in the 1980s and 1990s—is not part of this history. That

said, the subsequent development of operational law as a legal

discipline and the emergence of a new role for uniformed lawyers in

the Army owe much to the trail blazing done by those who served in

Southeast Asia from 1959 to 1975. If nothing else, these

soldier-lawyers showed the way for those who followed them.

121
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TJAGSA The Judge Advocate General’s School, U.S. Army,

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USALSA U.S. Army Legal Services Agency, Arlington,

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Military Justice. 12 February 1965. Historians files, OTJAG.

———. Memorandum, sub: Summary and Outline of RVN Judicial and

Police Functions. 24 February 1965. Historians files, OTJAG.

———. Memorandum for Record, sub: Status of Forces in Thailand. 17 July

1962. Historians files, OTJAG.

———. Staff Study, “Purpose: To examine the role of the Civil Law in

counterinsurgency in Vietnam and to make pertinent recommendations.”

31 May 1965. Historians files, OTJAG.

Military Justice Act of 1968. Public Law no. 90–632, U.S. Statutes at Large 82:

1335.

Mutual Defense Assistance in Indochina [Pentalateral Agreement]. 23

December 1950. Reprinted in Prugh, Law at War, Appendix I.

123
1977 Protocols Additional to the Geneva Conventions. 12 December 1977.

Published in International Legal Materials 16: 1391 and in Department of

the Army Pamphlet 27–1–1, Protocols to the Geneva Conventions of 12

August 1949 (Washington, D.C.: Department of the Army, 1979).

U.S. Army. Report of the Investigation (Volume I), Report to the Department

of the Army, Review of the Preliminary Investigation into the My Lai

Incident [Peers Report]. 14 March 1970. Reprinted in Joseph Goldstein,

Burke Marshall, and Jack Schwartz. The My Lai Massacre and Its

Cover-up: Beyond the Reach of the Law? (New York: Free Press, 1976).

Vienna Convention on Diplomatic Relations. 18 April 1961. Published in

United States Treaties 3: 3227 and in International Legal Materials 8: 679

(1969).

Directives, Instructions, Manuals, Pamphlets, and Regulations

AR 27–52, Consular Protection of Foreign Nationals Subject to the Uniform

Code of Military Justice. 5 November 1968.

AR 350–216, Training: The Geneva Conventions of 1949 and Hague

Convention No. IV of 1907. 28 May 1970.

AR 500–50, Civil Disturbances. 1 June 1972.

AR 608–4, Control and Registration of War Trophies and War Trophy

Firearms. 28 August 1969.

AR 635–200, Personnel Separations, Enlisted Personnel. 15 July 1966.

AR 700–99, Acquisition, Accounting, Control, and Disposal of Captured

Enemy Equipment and Foreign Material. 15 July 1976.

AR 755–2, Disposal of Excess, Surplus, Foreign Excess, Captured, and

Unwanted Materiel. 24 July 1970.

Department of the Army (DA) Field Manual (FM) 19–40, Enemy Prisoners of

War, Civilian Internees and Detained Persons. February 1976.

FM 27–10, The Law of Land Warfare. 1956.

Department of the Army Pamphlet (DA Pam) 27–1, Treaties Governing Land

Warfare. December 1956.

DA Pam 27–1–1, Protocols to the Geneva Conventions of 12 August 1949.

September 1979.

DA Pam 27–24, Selected International Agreements, Vol. II. December 1976.

DA Pam 27–161–1, Law of Peace, Vol. I. September 1979.

DA Pam 27–161–2, International Law, Vol. II. October 1962.

124
Department of the Army. Office of the Chief of Staff. Chief of Staff Regulation

11–2, Army Programs: Implementation of DoD Law of War Program. 7

May 1975.

Department of Defense (DoD). DoD Directive 2000.11, Procedures for

Handling Requests for Political Asylum and Temporary Refuge. 3 March

1972.

DoD Directive 5100.69, DoD Enemy PW/Detainee Program. 27 December

1972.

DoD Directive 5100.77, DoD Program for the Implementation of the Law of

War. 5 November 1974, 10 July 1979.

Manual for Courts-Martial, U.S. Army, 1928, A. Washington, D.C.:

Government Printing Office, 1927.

Manual for Courts-Martial, United States, 1949. Washington, D.C.:

Government Printing Office, 1948.

Manual for Courts-Martial, United States, 1951. Washington, D.C.:

Government Printing Office, 1951.

Manual for Courts-Martial, United States, 1969. Washington, D.C.:

Government Printing Office, 1969.

Military Assistance Command, Vietnam (MACV). MACV Directive 20–4,

Inspections and Investigations of War Crimes. 18 May 1968. Reprinted

in Prugh, Law at War, Appendix F.

MACV Directive 20–5, Inspections and Investigations: Prisoners of

War—Determination of Eligibility. 17 May 1966, 21 September 1966.

MACV Directive 25–1, Claims. 14 May 1965.

MACV Directive 27–1, Litigation: Legal Services and Litigation. 16 April

1965.

MACV Directive 27–4, Legal Services: Foreign Jurisdiction Procedures and

Information. 2 November 1967.

MACV Directive 27–5, Legal Services: War Crimes, and Other Prohibited

Acts. 2 November 1967.

MACV Directive 27–6, Legal Services and Legal Obligations in Vietnam. 16

June 1965, 14 September 1968.

MACV Directive 190–3, Military Police: Enemy Prisoners of War. 6 April

1967.

MACV Directive 335–1, Reports of Serious Crimes or Other Incidents. 5

January 1966.

125
MACV Directive 381–46, Military Intelligence: Combined Screening of

Detainees. 27 December 1967.

U.S. Army, Vietnam. Supplement 1 to AR 27–10, Military Justice. 15 June

1970.

Cases

Morrison v. United States, F. Supp. 316 (1970): 78.

United States v. Calley, Court Martial (CM) 426402, Court-Martial Reports

(CMR) 46: 1131 (ACMR 1973), affirmed CMR 48: 19 (U.S. Court of

Military Appeals [CMA]); see also Calley v. Calloway, F. Supp. 382

(1974): 650, Calley v. Hoffmann, F. 2d 519 (1975): 814, certiorari (cert.)

denied, U.S. 425 (1976): 911.

United States v. Duffy, CM 424795, CMR 47: 658 (ACMR 1973).

United States v. C. Garcia, CM 416159, CMR 38: 625 (Army Board of

Military Review [ABMR] 1967).

United States v. J. Garcia, CM 416160 (1967). USALSA.

United States v. Gervase, CM 416161 (1967). USALSA.

United States v. Goldman, CM 420332, CMR 43: 77 (ACMR 1970).

United States v. Griffen, CMR 39: 586 (ABMR 1968).

United States v. Henderson, CM 428589 (1972). USALSA.

United States v. Hodges, CM 420341 (1969). USALSA.

United States v. Levy, CM 416463, CMR 39: 672 (ABMR 1968); Levy v.

Resor, 37 CMR 399 (CMA 1968).

United States v. Lund, United States v. Francis, CM 420181 (1969). USALSA.

United States v. McGee, CM 422412 (1969). USALSA.

United States v. Medina, CM 427162 (1971). USALSA.

United States v. Rowland, CM 421750 (1969). USALSA.

United States v. Thomas, CM 416162, CMR 38: 655 (ABMR 1968).

United States v. Williams, CM 419872 (1968). USALSA.

United States v. Woods, CM 416803 (1966). USALSA.

Interviews

The author conducted interviews with the following individuals:

Brig. Gen. Bruce C. Babbitt, Mr. J. Stevens Berry, Col. John R. Bozeman, Mr.

Samuel T. Brick, Jr., Col. Fred Bright, Jr., Col. Raymond D. Cole, Col.

126
Dennis M. Corrigan, Col. Jack H. Crouchet, Lt. Col. Leonard G.

Crowley, Brig. Gen. Thomas R. Cuthbert, Col. Donald A. Deline, Col.

Dean R. Dort, Col. John J. Douglass, Col. Joseph Dudzik, Col. Paul J.

Durbin, Lt. Col. George C. Eblen, Col. William G. Eckhardt, Col. John T.

Edwards, Col. Ned E. Felder, Col. Leroy F. Foreman, Hon. Herman F.

Gierke, Col. Francis A. Gilligan, Maj. Gen. Kenneth D. Gray, Col. Fred

K. Green, Brig. Gen. Donald W. Hansen, Col. Edward W. Haughney,

Brig. Gen. Ronald M. Holdaway, Col. Dennis R. Hunt, Col. Robert H.

Ivey, Mr. Robert N. Kittel, Hon. Royce C. Lamberth, Col. Alfred E.

McNamee, Col. Vahan Moushegian, Lt. Col. William G. Myers, Col.

Hubert E. Miller, Maj. Gen. Wilton B. Persons, Maj. Gen. George S.

Prugh, Col. Burnett H. Radosh, Col. Raymond C. Ruppert, Lt. Col.

Jerome W. Scanlon, Col. James R. Smith, Col. James O. Smyser, Col.

Barry P. Steinberg, Maj. Gen. William K. Suter, Col. Arthur H. Taylor,

Brig. Gen. Joseph N. Tenhet, Col. Benjamin H. White, Col. Charles A.

White, Maj. Gen. Lawrence H. Williams.

Military Personnel Records, National Personnel Records Center, NARA

The author consulted the personnel records of the following individuals:

Brig. Gen. Bruce C. Babbitt, Col. Fred Bright, Jr., Col. Raymond D. Cole, Lt.

Col. Leonard G. Crowley, Col. Dean R. Dort, Col. John J. Douglass, Col.

Paul J. Durbin, Col. Ned E. Felder, Lt. Col. George C. Eblen, Col. Leroy

F. Foreman, Col. Francis A. Gilligan, Col. Herbert J. Green, Lt. Col. Guy

A. Hamlin, Col. Edward W. Haughney, Brig. Gen. Ronald M. Holdaway,

Col. Irvin M. Kent, Lt. Col. John N. Kulish, Col. Alfred A. McNamee,

Maj. Ralph G. Miranda, Lt. Col. William G. Myers, Col. George R.

Robinson, Lt. Col. Jerome W. Scanlon, Jr., Col. John T. Sherwood, Jr.,

Col. Arthur H. Taylor, Brig. Gen. Joseph N. Tenhet, Jr., Col. Robert K.

Weaver, Lt. Col. John P. Weber, Col. George F. Westerman, Col. Charles

A. White, Jr.

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133

Biographical Notes on Army Lawyers

While more than one hundred judge advocates are mentioned by

name in this work, there are only about forty biographical sketches in

this appendix. As a general rule, the decision to include information on

a particular individual was based on whether that person’s experiences

in Vietnam were examined in the narrative; judge advocates mentioned

in passing are not included.

Official personnel records maintained by the National Personnel

Records Center, St. Louis, Missouri, along with data cards and

personnel directories on file at the Personnel, Plans, and Training

Office, Office of the Judge Advocate General, were the principal

sources for biographical information on retired or deceased judge

advocates. Department of the Army Officer Record Briefs provided the

biographical data for judge advocates in the Army’s active and reserve

components. While all information is believed to be accurate, any

errors of commission or omission are the responsibility of the author.

Abbreviations:

Abn Airborne

ACC Army Court of Criminal Appeals

ACMR Army Court of Military Review

ACR Armored Cavalry Regiment

Adm Administrative

Adv Adviser

AFB Air Force Base

Affrs Affairs

AJAG Assistant Judge Advocate General

Arm Armor

Armd Armored

Arty Artillery

Asslt Assault

Asst Assistant

Atty Attorney

Aug Augmentation

BA/S Bachelor of Art/Science

Bde Brigade

Br Branch

Brks Barracks

135
CAC Combined Arms Center, Fort Leavenworth, KS

CAD Contract Appeals Division

Cav Cavalry

C&GSC Command and General Staff College, Fort Leavenworth, KS

Cdr Commander

Ch Chief

Civ Civil

CJA Command Judge Advocate

CJCS Chairman of the Joint Chiefs of Staff, Washington, D.C.

Cmd Command

Cmdt Commandant

Commd Commissioned

Commr Commissioner

Cnsl Counsel

Coll College

CONUS Continental United States

Ctr Center

DA Department of the Army

DAD Defense Appellate Division, Falls Church, VA

DC Defense Counsel

Def Defense

Dep Deputy

Det Detachment

Div Division

DoD Department of Defense

Dscpl Disciplinary

Eng Engineer

Enl Enlisted

Exec Executive

FECOM Far East Command

FORSCOMU.S. Forces Command, Fort McPherson, GA

Ft Fort

GAD Government Appellate Division, Falls Church, VA

Grp Group

IG Inspector General

IMA Individual Mobilization Augmentee

INSCOM Intelligence and Security Command

Instr Instructor

136
Intl International

JA Judge Advocate

JAGC/D Judge Advocate General’s Corps/Department

JAGO Judge Advocate General’s Office, Washington, D.C.

JCS Joint Chiefs of Staff

JD Juris Doctor

JFKSWC J. F. Kennedy Special Warfare Center, Fort Bragg, NC

JTF Joint Task Force

Jus Justice

Lgl Legal

Lit Litigation

LLB/M Bachelor of Laws/Master of Laws

Log Logistical

LSO Legal Services Organization

MAAG Military Assistance Advisory Group

MACV Military Assistance Command, Vietnam

M Ed Master of Education

Med Medical

MEDCOM Medical Command

MDW Military District of Washington, Washington, D.C.

Mil Military

MJ Military Judge

MA/S Master of Arts/Science

Mgmt Management

MP Military Police

MPA Masters of Public Administration

MTMC Military Traffic Management Command

Natl National

NG National Guard

Ofc Office

Off Officer

OGC Office of the General Counsel

OIC Officer in Charge

OJA Office of the Judge Advocate, U.S. Army, Europe

Opnl Operational

Opns Operations

Org Organization

OTJAG Office of the Judge Advocate General, Washington, D.C.

137
OSJA Office of the Staff Judge Advocate

Pers Personnel

PP&TO Personnel, Plans, and Training Office, OTJAG

Rcrtg Recruiting

RDC Regional Defense Counsel

REFRAD Released from active duty

Regt Regiment

Retd Retired

Sch School

Scty Security

Svc Service

SDC Senior Defense Counsel

SF Special Forces

S&F Staff and Faculty

SJA Staff Judge Advocate

Sp Special

Spt Support

St State

Strat Strategic

SUPCOM Support Command

TAACOM Theater Army Area Command

TAJAG The Assistant Judge Advocate General

TJAG The Judge Advocate General

TJAGSA The Judge Advocate General’s School, U.S. Army

Tm Team

Tng Training

Trnsfd Transferred

Univ University

USA U.S. Army

USALSA U.S. Army Legal Services Agency

USAREUR U.S. Army, Europe

USARSO U.S. Army, South, Panama

USARV U.S. Army, Vietnam

USATDS U.S. Army Trial Defense Service

USMA U.S. Military Academy, West Point, NY

USN U.S. Navy

138
Andrews, Howard R. (1942–1970). BS (1965), Ga Tech; JD

(1968), Univ of Ala. Enl, 101st Abn Div, Vietnam (1969). Commd

JAGC (1970). JA, 25th Inf Div, Vietnam (1970). Died in Vietnam

(1970). Participation in Vietnam.

Babbitt, Bruce C. (1920–1999). BA (1941) & LLB (1947), Univ of

Mont. Inf Off, 32d Inf Div w/duty Philippines & Pacific Theatre

(1942–45). Commd JAGC (1949). Mil Affrs Br, JAGO (1949–50). JA,

2d Inf Div, Ft Lewis (1950). JA, 3d Inf Div, Ft Benning (1957–58).

SJA, 8th Inf Div, USAREUR (1959–61). Ch, GAD (1962–64). Exec

Off, OTJAG (1966–68). SJA, MACV (1969–70). AJAG for Civ Law

(1970–73). Retd, Brig Gen (1973). Participation in Vietnam.

Berry, J. Stevens (1938– ). BA (1960), Stanford Univ; JD (1965),

Northwestern Univ. Inf Off, Ft Leonard Wood (1960–61). Commd

JAGC (1968). Ch DC, II Field Force, Vietnam (1968–69). REFRAD

(1969). Participation in Vietnam.

Corrigan, Dennis M. (1940– ). BA (1962), Fordham Univ; JD

(1965), Rutgers Univ; MS (1978), C&GSC. Commd JAGC (1966). JA,

USA Tng Ctr, Ft Ord (1967–69). JA, USA Spt Troops, U.S. Theater

Army SUPCOM, USAREUR (1969–70). SJA, 1st Inf Div (Fwd),

USAREUR (1970–72). JA, USARV, & MJ, USA Trial Judiciary,

Vietnam (1972–73). S&F, TJAGSA (1974–77). SJA, 1st Inf Div

(Fwd), USAREUR (1978–81). Lgl Adv, CJCS (1981–1985). SJA, 21st

SUPCOM, USAREUR (1986–90). MJ, ACMR (1990–91). Ch,

PP&TO, OTJAG (1991–93). Mil Asst, OGC, DoD (1993–95). Retd,

Col (1995). Participation in Vietnam.

Crowley, Leonard G. (1933– ). LLB (1957), Boston Coll; LLM

(1971), Geo Wash Univ. Enl, Ft Buchanan, P.R. (1957–58). Commd

JAGC (1958). Lgl Assistance Div, OTJAG (1960–62). JA, USA

Antilles Comd, USARSO, Ft Brooke, P.R. (1962–66). JA, Fourth

USA, Ft Sam Houston (1967–69). Ch, Foreign Claims Div, USARV

(1969–70). USA Procurement Agcy, USARV (1971–72). OGC, Army

& Air Force Exchange Svc, USAREUR (1972–75). DSJA, USA

SUPCOM Hawaii, Ft Shafter (1975–77). Retd, Lt Col (1977).

Participation in Vietnam.

Cuthbert, Thomas R. (1938– ). BS (1961), USMA; MS (1964),

Princeton Univ; JD (1967), Harvard Univ; LLM (1971), Northwestern

Univ. Eng Off w/duty Korea (1961–63). Trnsfd to JAGC (1967). Patent

Atty, OTJAG (1967–69). DSJA, 101st Abn Div, Vietnam (1969–70).

OIC (Nuremberg) & DSJA, 1st Arm Div, USAREUR (1971–74). SJA,

USA Tng Ctr, Ft Leonard Wood (1974–76). Ch, Mil Pers Law Br,

139
OTJAG (1977–81). Dir, Legislation & Lgl Policy, DoD (1982–86).

SJA, VII Corps, USAREUR (1986–89). Ch, USATDS (1989–91).

AJAG for Mil Law & Opns (1991–93). Cdr, USALSA & Ch Judge,

ACCA (1993–95). Retd, Brig Gen (1996). Participation in Vietnam.

Deline, Donald A. (1943– ). BA (1965), JD (1968) & MA (1968),

Univ of Miss. Commd JAGC (1968). JA, Tooele Army Depot

(1968–69). JA, USARV (1969–70). JA, USAREUR (1970–74). OCLL

(1975–78). SJA, 101st Abn Div (1978–81). SJA, 9th Inf Div, Ft Lewis

(1982–85). Lit Div, OTJAG (1985–87). SJA, V Corps, USAREUR

(1988–90). Legislative Cnsl to Secretary of Def, DoD (1990–93). Retd,

Col (1993). General Cnsl, Senate Armed Services Committee

(1993–96). Participation in Vietnam.

Dommer, Paul P. (1937–1975). BA (1959), Canisius Col; LLB

(1962) & LLM (1964), Georgetown Law Ctr. Commd JAGC (1967).

JA, USA Air Def Ctr, Ft Bliss (1967–69). JA, OJA, USAREUR

(1969–72). JA, MACV (1972–73). Intl Law Div, OTJAG (1973–75).

Lgl Adv, Ofc of JCS (1975). Died on active duty (1975). Participation

in Vietnam; a principal author of Law at War.

Douglass, John J. (1922– ). BA (1943), Univ of Nebr; JD (1952)

Univ of Mich.; LLM (1973), Univ of Va. Inf Off w/duty American

Theatre (1944–46). Commd JAGC (1953). JA, FECOM, Japan &

Korea (1953–54). Lit Div, OTJAG (1959–62). Exec Off, OJA,

USAREUR (1963–66). SJA, USA Garrison, Ft Riley (1966–68). SJA,

USARV (1968–69). MJ, USA Trial Judiciary (1969–70). Cmdt,

TJAGSA (1970–74). Retd, Col (1974). Participation in Vietnam.

Downes, Michael M. (1935– ). BA (1957) & LLB (1959), Univ of

Ga. Commd JAGC (1963). DSJA, 23d Inf Div (Americal), Vietnam

(1969–70). SJA, 2d Inf Div (1976–77). Lgl Adv, DA IG (1978–81).

SJA, XVIII Abn Corps, Ft Bragg (1981–1985). SJA, USA Sig Ctr, Ft

Gordon (1985–88). MJ, USA Trial Judiciary w/duty Ft Bragg

(1988–90). Retd, Col (1990). Participation in Vietnam, Urgent Fury.

Durbin, Paul J. (1917– ). BA (1938) & LLB (1941), Univ of Ky.

Inf Off, w/duty France & Germany (1943–45). Commd JAGC (1948).

JA, X Corps, FECOM, & 3d Log Cmd (1950). SJA, 7th Inf Div, Korea

(1950–51). SJA, 1st Armd Div, Ft Hood (1952–53). SJA, 4th Armd

Div, Ft Hood (1954). SJA, 82d Abn Div, Ft Bragg (1954–56). SJA,

101st Abn Div, Ft Campbell (1956–59). SJA, MAAG, Vietnam

(1959–61). DSJA, USA Pacific, Ft Shafter (1962–65). DSJA, Fifth

USA, Chicago (1965–66). SJA, II Field Force, Vietnam (1966). MJ,

140
USA Trial Judiciary w/duty Vietnam (1966–67). Retd, Col (1968).

Participation in Vietnam.

Eblen, George C. (1921– ). BS (1942) & LLB (1948), Univ of

Tenn. Enl & Inf Off w/duty France & Germany (1942–46). Commd

JAGC (1949). SJA, MAAG, Vietnam, & MACV (1961–62). SJA, USA

Missile Cmd, Redstone Arsenal (1963–66). Retd, Lt Col (1966).

Participation in Vietnam.

Felder, Ned E. (1937– ). BA (1959) & LLB (1961), S.C. St Coll.

Finance Off, Korea & Ft Totten (1961–63). Commd JAGC (1963). JA,

4th Inf Div, Ft Lewis & Vietnam (1963–66). JA, II Field Force,

Vietnam (1966–68). JA, VII Corps, USAREUR (1969–72). DSJA,

Berlin Bde (1972–73). MJ, USALSA (1973–81, 1984–88). SJA, USA

Garrison, Ft Meade (1981–84). Retd, Col (1988). Participation in

Vietnam.

Foreman, Leroy F. (1939– ). BA (1961) & LLB (1963), Creighton

Univ. Commd JAGC (1964). JA, 8th Inf Div, USAREUR (1964–67).

JA, USA Inf Ctr, Ft Benning (1968–69). DSJA, XXIV Corps, Vietnam

(1970–71). DSJA, USA Air Def Ctr, Ft Bliss (1971–72). SJA, Ft

Hamilton (1973–75). PP&TO, OTJAG (1976–79). SJA, 2d Inf Div,

Korea (1979–80). MJ, ACMR (1980–83). SJA, USA Arm Ctr, Ft Knox

(1984–86). SJA, FORSCOM, Ft McPherson (1986–89). MJ, ACMR

(1989–92). Retd, Col (1992). Participation in Vietnam.

Green, Herbert J. (1941– ). BA (1963), Queens Coll; JD (1966),

Univ of Tex. Commd JAGC (1966). JA, USA Garrison, Ft Sam

Houston (1967–68). JA, II Field Force, Vietnam (1968–69). MJ, USA

Trial Judiciary w/duty Ft Gordon, USAREUR, & Ft Lewis (1969–77).

DSJA, USA Signal Ctr, Ft Gordon (1977–79). S&F, TJAGSA

(1979–82). SJA, 1st Armd Div, USAREUR (1982–85). MJ, USA Trial

Judiciary w/duty Ft Knox, USAREUR, & Ft Hood (1985–94). Retd,

Col (1994). Participation in Vietnam.

Gray, Kenneth D. (1944– ). BA (1966) W.Va. St Coll; JD (1969),

Univ of W.Va. Commd JAGC (1969). DC, USA Tng Ctr, Ft Ord

(1969–70). JA & DC, USA SUPCOM, USARV (1970–71). Asst Mil

Affrs Off, First USA, Ft Meade (1971–72). PP&TO, OTJAG

(1972–74). S&F, TJAGSA (1975–78). DSJA, 1st Arm Div,

USAREUR (1978–80). SJA, 2d Armd Div, Ft Hood (1981–84). Ch,

PP&TO, OTJAG (1984–87). SJA, III Corps, Ft Hood (1988–89). Sp

Asst to TJAG (1989–90). Cdr, USALSA & Ch Judge, ACMR

(1991–93). TAJAG (1993–97). Retd, Maj Gen (1997). Participation in

Vietnam.

141
Hamlin, Guy A. (1923–1992). LLB (1950), Duke Univ. Enl & Inf

Off w/duty France & Germany (1945–46). Commd JAGC (1950). JA,

Okinawa Eng District, FECOM-Japan (1951–53). JA, Third USA, Ft

McPherson (1953–57). JA, 7th Army, USAREUR (1958–62). SJA,

82d Abn Div, Ft Bragg & Dominican Republic (1963–66). JA, MACV,

Vietnam (1966–67). SJA, 12th Support Bde, Ft Bragg (1967). Retd, Lt

Col (1967). Participation in Power Pack, Vietnam.

Haughney, Edward W. (1917– ). LLB (1949), St. Johns Univ; MS

(1966), George Washington Univ. Arty Off, France & Germany

(1942–47). Commd JAGC (1949). JA, FECOM (1950–53). S&F,

TJAGSA (1954–58). Ch, Intl Affrs Br, OJA, USAREUR (1958–62).

Asst Ch & Ch, Intl Affrs Div, OTJAG (1963–65). SJA, MACV

(1966–67). Ch, Intl Affrs, OTJAG (1967–69). Lgl Adv, EUCOM

(1969–72). Retd, Col (1972). Participation in Vietnam.

Hodson, Kenneth J. (1913–1995). BA (1935) & LLB (1937), Univ

of Kans. Trnsfd to JAGD (1942). JA, Trinidad Base Sector & Base

Cmd, Trinidad, W. Indies (1942–44). JA, Western Tactical Tng Cmd

(Army Air Corps) (1944). JA, 52d Medium Port, Ft Hamilton & Le

Havre, France (1944–45). Asst JA, Normandy Base Section, France

(1945). SJA, Chanor Base Section, France (1946). Asst SJA, Exec Off,

& SJA, Western Base Section, France (1946–47). Asst SJA, U.S.

Constabulary, Paris, France (1947). Asst SJA & SJA, American Graves

Registration Cmd (1947). Ch, Sp Projects Div & Asst to Board of

Review No. 1 (1948–51). S&F, TJAGSA (1951–53). Asst SJA, Army

Forces, Far East/Eighth USA (Rear) (1954–57). Ch, Mil Pers Div &

Mil Jus Div & Exec Off, OTJAG (1958–62). AJAG for Mil Jus

(1962–67). TJAG (1967–71). Retd & recalled (1971). Ch Judge,

ACMR (1971–74). Retd, Maj Gen (1974).

Holdaway, Ronald M.(1934– ). BA (1957) & LLB (1959), Univ of

Wyo. Commd JAGC (1959). JA, 4th Inf Div, Ft Lewis (1960–63). JA,

USA Hawaii (1963–66). S&F, TJAGSA (1967–69). SJA, 1st Cav Div,

Vietnam (1969–70). Dep & Ch, GAD, USALSA (1970–75). Ch,

PP&TO (1975–77). SJA, VII Corps, USAREUR (1978–80). Exec Off

& AJAG for Civ Law (1980–83). JA, OJA, USAREUR (1983–87).

Cdr, USALSA & Ch Judge, ACMR (1987–89). Retd, Brig Gen (1989).

Participation in Vietnam.

Hunt, Dennis R. (1939– ). JD (1964), Harvard Univ. Commd

JAGC (1965). JA, 2d Inf Div, Korea (1965–66). Appellate Div, USA

Judiciary (1966–69). MJ, USA Trial Judiciary, Vietnam (1969–70).

MJ, USA Trial Judiciary w/duty USAREUR (1971–75). S&F,

TJAGSA (1976–79). SJA, 24th Inf Div, Ft Stewart (1979–82). Cmd

142
Lgl Cnsl, USA Rcrtg Cmd (1982–84). Lgl Adv, DA IG (1985–87).

Professor of Law, USMA (1987–98). Retd, Brig Gen (1998).

Participation in Vietnam.

Kent, Irvin M. (1920– ). BA (1940), Syracuse Univ; LLB (1947),

Harvard Univ. Inf Off w/duty France & Germany (1943–45).

Prosecution Staff, Nuremberg War Crimes Trials (1947). Commd

JAGC (1948). JA, 1st Inf Div, EUCOM (1948–51). GAD, OTJAG

(1951–54). SJA, First USA, Governors Island, N.Y. (1956–58). JA, 3d

Log Cmd, USAREUR (1958–63). JA, USA Combat Development

Cmd, Fts Gordon & Belvoir (1963–66). SJA, USA Air Def Cmd, Ent

AFB, Colo. (1966–68). SJA, II Field Force & JA, MACV (1968–69).

MJ, USA Trial Judiciary w/duty Ft Carson (1969–71). Retd, Col

(1971). Participation in Vietnam.

Kulish, Jon N. (1938– ). BA (1960), Univ of Santa Clara; JD

(1967), Georgetown Univ; LLM (1976), George Washington Univ.

Arm Off w/duty USAREUR (1960–64). Commd JAGC (1968). DSJA,

II Field Force, Vietnam (1968–69). JA, Contract Appeals Div,

USALSA (1971–75, 1976–80). Retd, Lt Col (1980). Participation in

Vietnam.

Lamberth, Royce C. (1943– ). BA (1965) & JD (1967), Univ of

Tex. Enl, USA (1967). Commd JAGC (1968). JA, XVIII Abn Corps

(1968–69). JA & DC, 1st Cav Div & Saigon SUPCOM, Vietnam

(1969–70). Lit Div, OTJAG (1970–74). REFRAD (1974). Judge, U.S.

District Court for District of Columbia (1987–present). Participation in

Vietnam.

McNamee, Alfred A. (1931– ). BA (1958), Univ of Fla.; LLB

(1961), Wake Forest Univ. Enl & Inf Off w/duty USAREUR, Ft

Benning, & Ft Bragg (1949–63). Trnsfd to JAGC (1962). JA, 101st Abn

Div, Ft Campbell (1963–64). SJA, USA SUPCOM, Vietnam

(1964–65). S&F, TJAGSA (1965–67). SJA, 5th Inf Div, Ft Carson

(1967–68). DSJA & SJA, USA Arm Ctr, Ft Knox (1968–71). S&F,

C&GSC, Ft Leavenworth (1972–75). Lgl Adv, Allied Forces Europe,

South, Italy (1975–78). Retd, Col (1978). Participation in Vietnam.

Miller, Hubert E. (1918– ). LLB (1941), Albany Law Sch; MA

(1964), George Washington Univ. Inf Off w/duty France & Germany

(1943–45) & Korea (1950–52). Trnsfd to JAGC (1953). S&F,

TJAGSA (1956–57). DSJA, 101st Abn Div, Ft Campbell (1957–59).

SJA, 1st Cav Div, Korea (1959–60). Mil Jus Br, OTJAG (1960–63).

DSJA, USA Pacific, Hawaii (1964–66). SJA, 1st Log Cmd, Vietnam

(1966–67). MJ, USA Judiciary, OTJAG (1967–68). S&F, War Coll

143
(1971–72). SJA, USA Air Def Cmd, Ent AFB (1972–74). SJA, USA

Air Def Ctr, Ft Bliss (1974–75). Retd, Col (1975). Participation in

Vietnam.

Miranda, Ralph G. (1938– ). BA (1959), Tex. West Coll; LLB

(1962), Univ of San Francisco. Commd JAGC (1964). JA, USA

Pacific, Okinawa, Japan (1964–65). JA, USA Garrison, Ft Ord

(1966–67). JA, VII Corps, USAREUR (1967–70). JA, USARV

(1971–72). DSJA, USA Arty Ctr, Ft Sill (1972–73). Trnsfd to USAR

(1973). JA, 22d JAG Det, Austin, Tex. (1977–87). Retd, Lt Col (1987).

Moushegian, Vahan, Jr. (1942– ). BA (1965), Vanderbilt; LLB

(1968), Univ of Va. Trnsfd to JAGC (1972). JA, USARV/MACV

(1972–73). JA, V Corps & OJA, USAREUR (1973–76). Adm Law

Div, OTJAG (1977–82). DSJA, 1st Inf Div (Mech) (1983–86). Adm

Law Div, OTJAG (1986–88). SJA, 24th Inf Div (1988–91). Lgl Adv,

USA Surgeon General (1991–94). SJA, First USA, Ft Meade

(1994–95). Retd, Col (1995). Participation in Vietnam, deployed to

Florida during Hurricane Andrew relief efforts (1992).

Myers, William G. (1924– ). BS (1944), Southwest La. Institute

(1944); MA (1948), Univ of Ark.; JD (1955), Univ of Mich. Enl & Off,

USN (1943–49). Commd JAGC (1956). JA, USAREUR (1956–59).

JA, MACV (1963–64). SJA, 4th Log Cmd, Ft Lee (1965–67). Retd, Lt

Col (1970). Participation in Vietnam.

Prugh, George S. (1920– ). BA (1941), Univ of Calif.–Berkeley;

LLB (1948), Hastings Coll, Univ of Calif.; MA (1963), George

Washington Univ. Enl, Calif. NG & Coast Art Off w/duty Philippines

& Pacific Theatre (1939–44). Commd JAGC (1947). Mil Jus, Claims &

Lit Divs, OTJAG (1949–50). JA, Wetzlar Mil Post, USAREUR

(1950–51). Exec Off & SJA, Rhine Mil Post, USAREUR (1951–53).

Board of Review & Mil Jus Div, OTJAG (1953–56). DSJA, Eighth

USA (1957–58). DSJA & Asst Exec Reserve Affrs, Sixth USA,

Presidio of San Francisco (1958–61). Ch, Career Mgmt Div & Exec

Off, OTJAG (1962–64). SJA, MACV (1964–66). Lgl Adv, EUCOM

w/duty France & Germany (1966–69). JA, OJA, USAREUR

(1969–71). TJAG (1971–75). Retd, Maj Gen (1975). Participation in

Vietnam.

Radosh, Burnett H. (1935– ). BA (1953), Univ of Chicago; LLB

(1956), N.Y. Univ; LLM (1960), Georgetown Univ. Enl w/duty Ft

Benning (1958–59). Commd JAGC (1959). DAD, OTJAG (1959–61).

CJA, 4th Log Cmd & 1st Log Cmd, France (1961–62). 4th Log Cmd,

France (1962–63). 3d Log Cmd, France (1963–64). DSJA, 82d Abn

144
Div, Ft Bragg & Dominican Republic (1965–66). JA, 1st Log Cmd,

Vietnam (1966–67). CAD, OTJAG (1967–70). SJA, 25th Inf Div,

Vietnam (1970–71). CAD, USALSA (1971–74). Ch, Mil Pers Br, Lit

Div, OTJAG (1974–75). Adm Judge, Armed Svc Board Contract

Appeals (1975–78). SJA, USA Tng Ctr, Ft Dix (1978–79). SJA, DA

Materiel Development & Readiness Cmd (1979–80). Retd, Col (1980).

Participation in Power Pack, Vietnam.

Robinson, George R. (1925–1989). LLB (1950), Univ of Okla.

Enl, USN w/duty Atlantic (1943–45) & Korea (1948–50). Commd

JAGC (1950). JA, 82d Abn Div, Ft Bragg (1959–63). JA, 101st Abn

Div, Ft Campbell (1963–64). JA, MACV (1964–65). JA, DSJA & SJA,

USA Arty Ctr, Ft Sill (1965–68). MJ, USA Trial Judiciary w/duty Ft

Sill & Ft Bragg (1968–72). SJA, USA Arty Ctr, Ft Sill (1972–73). Retd,

Col (1973). Participation in Vietnam.

Scanlon, Jerome W., Jr. (1940– ). BA (1961), St. Bonaventure

Univ; JD (1964), Fordham Univ. Arty Off w/duty USAREUR

(1966–69) Trnsfd to JAGC (1969). JA, USA Tng Ctr, Ft Dix

(1969–1972). Lgl Off, Def Attaché Ofc w/duty Saigon, Vietnam

(1973–74). DSJA, USA Arty Ctr, Ft Sill (1974–77). S&F, USMA

(1977–81). SJA, USA Garrison, Ft Sam Houston (1981–85). Retd, Lt

Col (1985). Participation in Vietnam.

Sherwood, John T., Jr. (1935–1995). BS (1960) & JD (1962),

American Univ; LLM (1975), Univ of Mich. Commd JAGC (1963).

JA, 82d Abn Div, Ft Bragg (1963–65). JA, MACV (1965–66). S&F,

USMA (1966–70). OIC (Nuremberg), VII Corps, USAREUR

(1970–73). DSJA, USMA (1977–80). DSJA, Sixth USA, Presidio of

San Francisco (1980–83). SJA, 19th SUPCOM, Korea (1983–85).

SJA, Third USA, Ft McPherson (1985–86). Retd, Col (1986).

Participation in Vietnam.

Solf, Waldemar A. (1913–1987). LLB (1937), Univ of Chicago.

Arty Off (1942–46) w/duty France & Germany. Trnsfd to JAGD

(1946). MJ, USA Trial Judiciary w/duty Korea & Ft Meade (1959–62).

SJA, Eighth USA, Korea & U.S. Strat Cmd (1962–65). Ch, Mil Jus Div,

OTJAG (1966–68). Retd, Col (1968). DA Civilian, Intl Affrs Div,

OTJAG (1970–71). Ch, Intl Affrs Div, OTJAG (1971–77). Sp Asst to

TJAG (1977–79). Delegate, Diplomatic Conference on the

Reaffirmation and Development of Humanitarian Law in Armed

Conflict (1977 Protocols to Geneva Conventions) (1975–77). Retd, DA

Civilian (1979).

145
Suter, William K. (1937– ). AB (1959), Trinity Univ; LLB (1962),

Tulane Univ. Commd JAGC (1962). JA, USA Alaska (1963–66). S&F,

TJAGSA (1967–70). Asst SJA, USA SUPCOM, Thailand (1970).

DSJA, USARV (1971). OTJAG (1971–74). SJA, 101st Abn Div, Ft

Campbell (1975–77). Ch, PP&TO, OTJAG (1977–79). Cmdt,

TJAGSA (1981–84). Cdr, USALSA & Ch Judge, ACMR (1984–85).

TAJAG (1985–1989). Acting TJAG (1989–91). Retired, Maj Gen

(1991). Clerk of Court, U.S. Supreme Court. Participation in Vietnam.

Taylor, Arthur H. (1930– ). AA & LLB (1954), Boston Univ.

Trnsfd to JAGC (1960). JA, USA Tng Ctr, Ft Dix (1960–62). JA, USA

Support Grp, Vietnam (1962–63). JA, XVIII Abn Corps w/duty Ft

Bragg & Dominican Republic (1964–66). SJA, JFKSWC, Ft Bragg

(1967–68). JA, US Air Def Cmd, Ent AFB (1968–69). JA, Eighth USA,

Korea, & SJA, Korea SUPCOM (1971–72). Exec Reserve Affrs,

FORSCOM, Ft McPherson (1972–74). Retd, Lt Col (1974).

Participation in Vietnam, Power Pack.

Tenhet, Joseph N., Jr. (1924– ). LLB (1949), Univ of Richmond;

LLM (1950), Duke Univ. Inf Off w/duty France & Germany

(1943–46). Commd JAGC (1953). JA, Mil Affrs Div, OTJAG

(1953–55). JA, 23d Inf Div, USA Caribbean, Panama (1955–58). JA,

Fourth USA, Ft Sam Houston (1959–62). JA, Eighth USA, Korea

(1963–64). Mil Affrs Div, OTJAG (1964–69). SJA, 3d Inf Div,

USAREUR (1969–70). SJA, V Corps, USAREUR (1970–71). SJA,

USARV & MACV (1972–73). Ch, Adm Law Div, OTJAG (1973–75).

AJAG for Mil Law (1975–78). Retd, Brig Gen (1978). Participation in

Vietnam.

Weaver, Robert K. (1920– ). BS (1943) & LLB (1947), Univ of

S.Dak. Commd JAGC (1949). JA, EUCOM (1950–53). S&F, TJAGSA

(1954–58). Asst SJA, VII Corps, USAREUR (1958–61). S&F, USMA

(1961–65). SJA, MAAG, Taiwan (1965–67). Ch, Lit Div, OTJAG

(1967–70). SJA, MACV (1970–71). Ch, Procurement Law Div,

OTJAG (1971–74). Retd, Col (1974). Participation in Vietnam.

Westerman, George F. (1916–1985). BS (1939) & LLB (1947),

Univ of Wis. Signal Off w/duty France & Germany (1941–45). Commd

JAGC (1947). Asst SJA, MDW (1947–50). JA, Eighth USA & Japan

Log Cmd w/duty Korea (1950–52). Ch, Patents Div, OTJAG

(1952–56). Patent Adv, U.S. Mission to NATO, Paris, France

(1957–60). Ch, Patents Div, OTJAG (1961–62). SJA, MACV

(1962–63). Ch, Mil Affrs Div & Ch, Intl Affrs Div, OTJAG (1963–67).

MJ & Ch Judge, ACMR (1968–70). Retd, Col (1971). Participation in

Vietnam.

146
White, Charles A., Jr. (1939– ). BA (1961) & JD (1963), Coll Wm

& Mary; MA (1968), Tufts Univ. Commd JAGC (1964). Asst SJA,

173d Abn Inf Bde w/duty Okinawa & Vietnam (1964–66). JA, Career

Mgmt Div, OTJAG (1966–68). Intl Affrs Div, OTJAG (1968–69). Ch,

Intl Affrs Div, OJA, USAREUR (1969–72). S&F, TJAGSA

(1973–76). SJA, 1st Cav Div, Ft Hood (1976–79). SJA, 21st SUPCOM

(1980–83). Lgl Cnsl, Intelligence Opns, DoD (1983–84). Retd, Col

(1984). Participation in Vietnam.

Williams, Lawrence H. (1922–1999). BS (1947), Univ of Minn.;

JD (1948), Univ of Colo. Aviation Off w/duty No. Africa, France, &

Germany (1942–46). Commd JAGC (1948). Mil Affrs Div, OTJAG

(1948–52). S&F, TJAGSA (1952–53). JA, USA Carribean, Panama

(1953–56). Asst Lgl Adv, Ofc Dep Ch Staff Logistics, Washington,

D.C. (1956–57). Mil Affrs Div, OTJAG (1957–61). SJA & Asst Ch

Staff (G–1), 3d Armd Div, USAREUR (1961–64). Ch, Mil Affrs Div,

OTJAG (1964–66). SJA, III Corps, Ft Hood (1967–69). SJA, MACV

(1969–70). Ch, Mil Affrs Div, OTJAG (1970–71). AJAG for Mil Law

(1971–75). TAJAG (1975–79). Retd, Maj Gen (1979). Participation in

Vietnam.

147

Index

Abrams, Gen. Creighton W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Accommodations for judge advovates in Vietnam ...... 3,14,60,97,101-103

Administrative law issues. . . . . . . . . . . . . . . . . . . . . . 6, 48, 56-57, 94-96, 106

Advisory Program ......................................... 41-45

Air Force lawyers............................... 11-12, 14-15, 31-32

Air Medal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 44

Airborne Brigade,173rd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 56, 60

Airborne Divisions

82nd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 28, 60

101st . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 60, 102-103

Ambassadors

Authority over U.S. civilians ........................ 36-38, 77

Judge advocate legal advice to .......................... 38-40

Americal Division. See Infantry Divisions

Andrews, Capt. Howard R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 101-02

Armored Cavalry Regiment,11th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Army Court of Military Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Army Law of War Training Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Army of the Republic of Vietnam

Director of Military Justice .......................... 19-20, 30

Judge advocate assistance to ...................... 33-34, 41-45

Military justice system ................................ 10-11

Resource control issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Army Regulations

27-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

635-200 ........................................... 69-70

Asylum, granting .............................................8

Babbitt, Maj. Bruce C.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Baldree, Capt. Charles J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Berry, Capt. J. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 (photo)

Bich, Col. Nguyen Monh .................................... 19-20

Black marketeering .................................. 5-6, 36, 38-39

Bookout, Col. Hal H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Bright, Lt. Col. Fred J.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 (photo)

149
Brink Hotel (Saigon). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Callaway, Howard H. ...................................... 53-54

Calley, Lt. William L. ...................................... 52-54

Cambodia, Operations in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 101

Camp Eagle, Vietnam:. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 (photo), 66, 102

Carne, Col. William B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Cavalry Division (Airmobile), 1st: vi, 28-30, 59, 71, 81, 96-100, 103, 105-106

CBS Evening News. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Civilians

American. See Civilians, American.

Murdered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 52-54, 71-74

Refugees. See Refugees.

War crimes against . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 52-54, 71-74

Civilians, American

Ambassador’s authority over . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 38

Contractor personnel ................................. 37-39

Courts-martial of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 69

Misconduct by ................................... 37-38, 69

Claims

Arising from traffic accidents. . . . . . . . . . . . . . . . . . . . . . . . . 6, 93-94

Combat-related . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 41, 57-58, 90-91

Formulation of policy on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

For noncombat damage . . . . . . . . . . . . . . . . . . . . . . . . . 16, 57-58, 103

From military personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Payments used to promote good will . . . . . . . . . . . . . . . . . . . . . 16, 40

Personnel injury/death. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Property damage . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 41, 57-59, 103

Responsibility for processing................. 40-41, 57, 106-107

Used to foster respect for the law. . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Claims operations . . . . . . . . . 6, 16, 40-41, 46-47, 56-59, 90-94, 103, 106-107

Clark Air Base, Philippines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Clarke, Lt. Col. Robert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (photo)

Clause, Lt. Col. James D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 (photo)

Clausen, Lt. Col. Hugh J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 (photo), 89

150
Cole, Capt. Raymond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Combat Refusals .......................................... 88-89

Confinement facilities

For U.S. soldiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

For Viet Cong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Corps, XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 89, 91-93

Corrigan, Capt. Dennis M. ................................. 104-106

Courts-martial

For drug offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 87-88

General. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 51, 71, 85-86, 104-105

For murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 71, 75-76 (note 15)

Special. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 60-61, 85-86

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 69

Of U.S. civilians. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 68-69

For war crimes ................................... 52-54, 71

Convening authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Crowley, Maj. Leonard G.................................... 58-59

Currency manipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 45

Cuthbert, Maj. Thomas R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Dahlinger, Maj. Richard K. . . . . . . . . . . . . . . . . . . . . . . . . . . 100 (photo), 101

Davenport, Capt. Peter M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Defense, U.S. Department of

Directive 5100.77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Law of War program: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

DeFiori, Lt. Col. Victor A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 (photo)

Deline, Capt. Donald A. ..................................... 93-94

Demetz, Capt. Robert A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

DeMund, Lt. Col. Robert J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Diem, Ngo Dinh ..............................................2

Diem government, Coup d’etat against . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

Discipline

and African-American soldiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

breakdown of in Vietnam .............................. 87-89

and combat refusals .................................. 88-89

and failures of the military justice system .................. 89-90

and fragging ........................................ 88-89

151
use of courts-martial as a tool of. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Distinguished Service Cross . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Distinguished Service Medal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Dommer, Maj. Paul P. .................................... 108, 110

Dort, Col. Dean R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Douglass, Col. John Jay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (photo), 48, 51

Durbin, Col. Paul J. ................. vii, 1-13, 3 (photo), 4 (photo), 22, 70

Eblen, Lt. Col. George C. .......................... vii, 4, 8-10 (photo)

Edwards, Capt. John T. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Eifler, Maj. Gen. Charles W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Elimination boards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 95-96

Felder, Capt. Ned E................................... 62-64 (photo)

Field Forces

I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 60

II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 60, 62-65

Finkelstein, Lt. Col. Zane E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Fire Support Base MARY ANN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Foreign Claims Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 41, 91-93

Foreign claims commissions ............................. 91-94, 107

Foreman, Maj. Leroy F.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Four-Party Joint Military Commission........................ 107-109

Four-Party Joint Military Team ............................. 110-112

Fragging ................................................ 88-89

Fugh, Maj. John L.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Gendarmerie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Geneva Conventions Relative to the Treatment of

Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23, 33-34, 63

Gilligan, Maj. Francis A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Graves, 1st Lt. Thomas C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

Gray, Capt. Kenneth D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Green, Capt. Herbert ....................................... 62-63

“Green Beret Affair” .................................... 54-55, 59

Hart, Capt. J. William . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Haughney, Col. Edward W. ................... vii, 32 (photo), 33-34, 73

Henderson, Col. Oran K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

152
Hickman, Maj. Gen. George W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ho Chi Minh Trail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Hodges, Lt. Col. Morris D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Hodson, Maj. Gen. Kenneth J. . . . . . 47 (photo), 49, 50 (photo), 65 (photo), 70,

100 (photo)

Holdaway, Lt. Col. Ronald M........................... vii, 15, 96-98

Hunt, Maj. Dennis R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Hunter, Maj. Nancy A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 (note 9)

Infantry Brigades

11th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

196th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 60, 88

198th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 60

Infantry Divisions

1st . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 73

5th(Mechanized) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 60

23rd (Americal) . . . . . . . . . . . . . . . . . . . . . . . . . 53 (photo), 54, 60, 95

25th........................... 28-29, 60, 67, 81, 100-102, 106

Interpreters/translators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Irregular Practices Committee ................................ 38-39

Jones, Lt. Col. Richard L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Judge Advocate General’s Office

International Affairs Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

and Law of War Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Judge Advocate General’s School. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 83

Judge advocates

Air Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 31-32

Navy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 31-32

Reserve. See Reserve judge advocates

Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 114 (note 9)

Kennedy, John F...............................................2

Kent, Lt. Col. Irvin M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 (photo), 63

Keough, Capt. James. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Keough, Capt. Nancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Koceja, CWO2 Daniel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 (photo)

Korean War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Koster, Maj. Gen. Samuel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 53

153
Kulish, Maj. Jon N.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 64-65

Laird, Melvin R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Lamberth, Capt. Royce C. .................................. 98-100

Law of War. See also Defense, U.S. Department of

Law of War Program; War Crimes

investigations of possible violations of.................... 34-36

and prisoners of war .................................. 33-34

training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 61, 63-64, 70, 101

Legal services, organization of:

in MACV .......................................... 29-32

in USARV ......................................... 45-49

in MACV/USARV................................. 103-104

Legion of Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lincoln, Capt. Arthur F. . . . . . . . . . . . . . . . . . . . . . . 107 (photo), 108 (photo)

Litigation, Civil ........................................... 56-57

Lodge, Henry Cabot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Logistical Command, lst. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 67-69, 101

Long Binh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 88, 106

McCaffrey, Lt. Gen. William J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

McGarr, Lt. Gen. Lionel C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

McNamee, Capt. Alfred A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

McRorie, Capt. Raymond C. ................................. 60-61

MACV Directives

20-4, Inspections and Investigations of War Crimes .... 20-21, 34-35

20-5, Prisoners of War—Determination of Eligibility ........... 33

25-1, Claims........................................ 40-41

27-4, Legal Services: Foreign Jurisdiction Procedures and

Information ........................................... 96

27-6, Legal Services and Legal Obligations in Vietnam .......... 36

Manual for Courts-Martial, U.S., 1928 ............................ 10

Manual for Courts-Martial, U.S., 1951 ............................. 9

Manual for Courts-Martial, U.S., 1969 ......................... 66-67

Mau, Nguyen Van .............................................9

Mayer, Maj. Walter M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Medina, Capt. Ernest L.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

154
Meyer, Col. Edward C. ..................................... vii, 98

Military Assistance Advisory Group, Vietnam (MAAG)............. 1-13

Military Assistance Command, Vietnam (MACV). See U.S. Military

Assistance Command, Vietnam.

Military Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 90

Military Justice, application of

to civilians abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 68

in Vietnam.................................... 36-38, 86-90

Military Justice Act of 1968 .................................. 49-51

Military Payment Certificate Program. . . . . . . . . . . . . . . . . . . . . . . . . . 39, 45

Military Personnel Claims Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 106

Miller, Col. Hubert E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 (photo), 74

Miranda, Maj. Ralph G.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Mitchell, SSgt. David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Moushegian, Capt. Vahan, Jr. .............................. 108-110

Murphy, Maj. James A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Murray, Maj. Charles R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Murray, Maj. Robert E. ................................... 104-105

Musil, Maj. Louis F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

My Lai, Vietnam, massacre . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 52-54, 74

Myers, Maj. William G. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15-16

Naughton, Maj. John F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Navy lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 31-32

Nha Trang, Vietnam, B-57 crash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 44

Nixon, Richard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 56, 81

Norman, Maj. Steven R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Norton, Lt. Col. Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

O’Brien, Capt. John D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Oden, Brig. Gen. Delk M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

O’Donovan, Col. William. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 (photo)

Oldham, Lt. Col. Thomas C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 (photo)

Oliphant, Capt. L. Dee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Olympic Games . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Paris Peace Accords (Paris Agreement on Ending War and Restorin Peace in

Vietnam) .......................................... 104, 107-109

Parker, Brig. Gen. Harold E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

155
Peers, Lt. Gen. William R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Peers Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 74

Pentalateral Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

Personnel Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Persons, Col. Wilton B., Jr.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 51, 85

Pierce, SSgt Larry S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Post exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Prisoners of War

Article 5 tribunals.................................... 33-34

classification as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 33

facilities for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Geneva Conventions regarding ......................... 19-20

policies regarding responsibility for . . . . . . . . . . . . . . . . . . . 20, 32-34

South Vietnamese treatment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prisoners of War—Determination of Eligibility

(MACV Directive 20-5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Prugh, Col. George S.......................... vii, 18-22, 27, 41-42, 89

Race relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Radosh, Capt. Burnett H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 100-101

Ray, Maj. Paul H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Real estate leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Rector, Lt. Col. Lloyd K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Reese, Col. Thomas H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (photo)

Resor, Stanley R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Resources control, Vietnamese efforts in . . . . . . . . . . . . . . . . . . . . . 21, 38-39

Rheault, Col. Robert B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Roberts, Maj. Gen. Elvy B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Robinson, Lt. Col. George R. .............................. 40-41, 52

Rodino, Peter W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Rose, Maj. J. Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Ruppert, Capt. Raymond T.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Ryker, Col. George C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Scanlon, Capt. Jerome W., Jr.. . . . . . . . . . . . . . . . . . . . . 110 (photo), 111-112

Schofield Barracks, Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 106

Senechal, Col. James F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Sherwood, Capt. John T., Jr. ...................... 43-44 (photo), 45, 73

156
Smyser, James O. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Sneeden, Lt. Col. Emery M.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Solatia payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Soldiers’ and Sailors’ Civil Relief Act . . . . . . . . . . . . . . . . . . . . . . . . . 63, 101

Solf, Col. (Ret.) Waldemar A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 74

South Vietnam. See Vietnam, Republic of (South).

Spencer, Lt. Col. Bryan S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Status of Forces, Agreement on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8-9

Steinberg, Capt. Barry P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Stilwell, Brig. Gen. Joseph W., Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Stutzman, Capt. Myron D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 (photo)

Subic Bay Naval Base (Philippines) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Support Commands

Da Nang. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Qui Nhon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Support Group, 34th General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Suter, Maj. William K. . . . . . . . . . . . . . . . . . . . . . . . . . 85, 95-96, 111 (photo)

Tables of organization and equipment. . . . . . . . . . . . . . . . . . . . . . . . . . 59, 65

Taylor, Capt. Arthur H. ................................... 14,16-18

Tenhet, Col. Joseph N., Jr.:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 83, 103

Tichenor, Capt. Carroll J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 (photo)

Tobin, Col. Paul . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 (photo)

Tombaugh, Col. William W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Trail, Maj. Sebert L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 (photo)

Truman, Harry S...............................................1

Ulmer, Col. Walter F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Uniform Code of Military Justice

1962 amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1968 amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Article 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Article 6...............................................3

Article 15 offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 67

Article 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Article 32 investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

U.S. Army, Vietnam .................................. 28-29, 45-59

U.S. Army, Vietnam/Military Assistance Command, Vietnam:. . 82-83, 103-107

157
U.S. Army Rangers, court-martialed .......................... 98-100

U.S. Army Support Command, Vietnam . . . . . . . . . . . . . . . . . . . . . 13, 16-18

U.S. Court of Military Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Marine Corps, in Vietnam............................. 27-28, 94

U.S. Military Assistance Advisory Group, Indochina ............... 1-13

U.S. Military Assistance Command, Vietnam (MACV) ..... vii, 2, 13, 30-45

U.S. Military Police Corps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

United States v. Calley ...................................... 52-54

United States v. C. Garcia ...................................... 71

United States v. J. Garcia ...................................... 71

United States v. Gervase ....................................... 71

United States v. Mitchell ....................................... 52

United States v. Thomas ....................................... 71

Vietnam, Republic of (South):

currency and black market issues.................. 5-6, 36, 38-39

and diplomatic status of U.S. military personnel ................5

judge advocate assistance to civil justice system............. 83-85

Military Justice Corps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

military prison system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

and payment of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

and prisoners of war:............................... 33-34, 84

Waller, Col. James C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Wansley, Maj. Ann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 (note 9)

War Crimes, enemy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18-19, 35

War Crimes, judge advocate responsibility for investigating ......... 20-21

War Crimes, U.S......................... 35-36, 52-54, 75-76 (note 15)

Wartime Legislation Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Weapons, for judge advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Weaver, Col. Robert K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 84

Westerman, Col. George F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Westmoreland, General William C. . . . . . . . . . . . . . . . . . . . . . . 19, 27, 56, 89

White, Capt. Benjamin H................................... 102-103

White, Capt. Charles A., Jr. .................................. 60-61

Williams, Col. Lawrence H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 74, 101

Williams, Lt. Gen. Samuel T......................................3

Williamson, Brig. Gen. Ellis W. ............................... 60-61

158
Wright, Maj. Gen. John M.: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Wright, Maj. Madison C. ........................................4

Zais, Maj. Gen. Melvin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 67

Zalonis, Capt. John A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

159

About the Author

Colonel Fred Borch is a career Army judge advocate. He has an

A.B. in history from Davidson College, a J.D. from the University of

North Carolina at Chapel Hill, an LL.M. in international and

comparative law from the University of Brussels, Belgium, an LL.M. in

military law from The Judge Advocate General’s School,

Charlottesville, Virginia, and an M.A. in national security studies from

the Naval War College, Newport, Rhode Island.

Since entering the Judge Advocate General’s Corps in 1980, Colonel

Borch has served in a variety of assignments in the United States and

overseas, including tours at the Infantry School at Fort Benning, XVIII

Airborne Corps at Fort Bragg, the Signal Center at Fort Gordon, 21st

Support Command in Germany, and the 4th Battalion, 325th Airborne

Infantry Combat Team in Italy. His areas of expertise are military

justice and international law, and he taught criminal law at the Judge

Advocate General’s School and served as a Professor of International

Law at the Naval War College.

Colonel Borch is presently serving as the (acting) chief prosecutor,

Office of Military Commissions, Department of Defense. In that

position, he supervises the prosecution efforts involving terrorists

currently detained in Guantanamo Bay, Cuba.

He is the author of a number of books and articles on legal and

nonlegal topics, including Judge Advocates in Combat: Army Lawyers

in Military Operations from Vietnam to Haiti (2001) and The Silver

Star: A History of America’s Third Highest Award for Valor(2002).
AD BELLUM PACE PARATI

L E A V E N W O R T H