and the 

JUDGE ADVOCATES GENER

of the 

ARMED FORCES 


and the 

GENERAL COUNSEL 


of the 

DEPARTMENT OF TRANSPORT

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUST

For the Period 

January I, 1968 to December 31, 19

PROPERTY or u.s. ARMY -­

THE JUDGE ADVOCATE GENERAL'S SC

LIBRARY 
SENATE AND OF THE 


HOUSE OF REPRESENTATIVES 


and 10 Ihe 

SECRETARY OF DEFENSE 


AND SECRETARY OF TRANSPORTAT

and the 


SECRETARIES OF THE DEPARTMENTS OF T

ARMY, NAVY, AND AIR FORCE 


PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 


For Ihe Period 


January I, 1968 10 December 31, 1968 

JOINT REPORT OF THE U.S. COURT OF MILITARY APPE

JUDGE ADVOCATES GENERAL OF THE ARMED FOR

GENERAL COUNSEL OF THE DEPARTMENT OF TRA

REPORT OF THE U.S. COURT OF MILITARY APPEALS 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE 

REPORT OF THE GENERAL COUNSEL OF THE DEPARTME

PORTATION (U.S. COAST GUARD) 
and the 

JUDGE ADVOCATES GENERAL 


OF THE ARMED FORCES 


and the 

.GENERAL COUNSEL OF THE 

DEPARTMENT OF TRANSPORTATION 

January 1, 1968, to December 31, 1968 

The following is the 17th annual report of the commit

by article 67(g) of the Uniform Code of Military Justice, 

867 (g). That article requires the judges of the U.S. Court o

Appeals, the Judge Advocates General of the Armed Force

General Counsel of the Department of TranspOItation 

annually to survey the operations of the code and to prepa

to the Committee on Armed Services of the Senate and of th

Representatives, to the Secretary of Defense and the Se

Transportation, and to the Secretaries of the Departme

Army, Navy, and Air Force with regard to the status o

justice and to the manner and means by which it can be 

by legislative enactment. 

The chief judge and the judges of the U.S. Court o

Appeals, the Judge Advocates General of the Army, Nav

Force, and the General Counsel of the Department of Tran

hereinafter referred to as the Code Committee, have met and 

at the call of the chief judge several times during the per

report. These conferences included a full consideration of 

amendments to the Uniform Code of Military Justice cons

the policy and purpose ofthis committee. 

On January 10, 1967, Representative Charles E. Bennett 

H.ll. 12705 which contained many provisions of one of 

bills, H.R. 226. Hearings were held on this bill before sub
of lawyer counsel and of military judges (formerly called 

in courts-martial, to make court-martial procedures more 

give added procedural safeguards to the accused. It em

provisions long advocated by the Code Committee. In ad

savings in time and manpower afforded by the act, meanin

and protections are provided the accused. 

This legislation permits the procedure for trials by spe

eral courts-martial to conform more closely with the pro

in the trial of criminal cases in the U.S. district courts 

hance the prestige and effectiveness of the military judge

judicial stature and authority in the courtroom will mor

proximate that of a civilian trial judge. This act allows 

judge to rule finally on certain procedural matters, such 

for findings of not guilty, on which he now may be over

court members who are untrained in the law. The act prov

trial and post-trial sessions to be held by the military ju

the presence of the court panel for the purpose of decidin

questions. The act provides for trial in special and gen

martial by a military judge alone without court members i

requests and the request is approved by the military judg

two provisions are expected to save time of line officers 

otherwise be required to be in attendance at courts-marti

The act contains the following provisions designed to 

fairness of the military justice system. The accused mus

the opportunity to be defended by legally qualified coun

courts-martial unless the commander certifies one cannot 

Mere inconvenience is not a basis for certifying the no

of legal counsel. Before a bad-conduct discharge may be 

special court-martial, the accused must be represented 

counsel and the proceedings must be presided over by a m

2 
pending appeal. 

Finally, the act permits an accused faced with trial b

court-martial to object to such trial, at which time the co

thority may refer charges to special or general court-marti

them. 

The passage of the Military Justice Act of 1968 co

passage of legislation affecting military justice and the 

of Military Appeals which has been advocated by the Code 

Two bills concerning administrative discharges were befo

when it adjourned and are expected to be reintroduced 

next sesion : Title I of S. 2009, 90th Congress, 1st session, in

Senator Sam J. Ervin, Jr., of North Carolina, and lI.R. 

Congress, 2d session, introduced by Representative Cha

of Florida. The Code Committee has not expressed its vie

bill, but has the bills under consideration because of their 

U.S. Court of Military Appeals. 

Senator Ervin's bill would permit the U.S. Court of M

peals to review administrative discharges given under 

honorable conditions. This would place an extensive bu

court as now constituted since 10,801 undesirable disc

given in fiscal year 1968 by the three services. The bill 

require a substantial increase in military lawyers in the se

resentative Bennett's bill would establish new minimum st

administrative discharges. Minimum standards are now 

departmental regulation. 

The sectional reports of the court and of the individual 

line the volume of court-martial cases subject to appe

during the reporting period. Exhibit A is attached to reca

number of court-martial cases of al1 types tried throughou
JOSEPH B. McDEVIT

The Judge Advocate 

ROBERT 'V. ]\fANSS, 

The Jttdge Advocate 

U.s. 

R. TENNEY J OIINSO

General Oounsel, 


Department 0/ Tran

4 
Army ________________________________________________________

Navy ________________________________________________________

Air Force ____________________________________________________

Coast Guard _________________________________________________

Total 

Oases Reviewed by Boards of Review Army ________________________________________________________

Navy ________________________________________________________

Air Force ____________________________________________________

Coast Guard __________________________________________________

Total 

Oases Docketed with U.S. Oourt of Military Appeals Army ________________________________________________________

Navy ________________________________________________________

Air Force ____________________________________________________

Coast Guard __________________________________________________

Total __________________________________________________

Justice, Article 67 (g), 10 U.S.C. 867 (g), the chief judge a

judges of the U.S. Court of Military Appeals herewith s

report on military justice matters to the Committees on A

ices of the U.S. Senate and House of Representatives, th

of Defense, the Secretary of Transportation, and the Se

the Departments of the Army, Navy, and Air Force. 

It is with sadness that we at the outset of this report note 

and unexpected passing of Judge Paul J. Kilday at the a

the morning of October 12, 1968. Judge Kilday had been 

2 days before his death. President Kennedy nominated him 

of the Court on June 28, 1961, for the term expiring May 

was unanimously confirmed by the U.S. Senate on July 1

took the oath of office on September 25, 1961, having th

day resigned from the House of Representatives in wh

served continuously with distinction since January 3, 19

his congressional service as a member of the Committee 

Affairs and later the Committee on Armed Services, he rec

citations of honor for his timeless efforts for increased effe

our Armed Forces and for the personal welfare of its memb

the many fine tributes paid to him on the floor of the Hous

sentatives on the news of his death was that of the Hou

John 1V. McCormack, who said "as a member of Congress 

judicial capacity, he served his country well." Preside

attended the graveside services at Arlington National Ce

later called Judge Kilday "one of the ablest and most cour

I've ever known." 

In the brief span of his judicial career, he was recog

learned jurist. He will be missed by his colleagues and m

the staff; he will long be remembered for his substantial co

to our Armed Services, both as a Member of Congress, and 

on the highest tribunal in the military justice system. 

333-067--69----2 
gg pp, 

Mr. Darden will be submitted to the Senate within the 

of the 91st Congress. In the meantime, Mr. Darden too

office on November 13, 1965, and assumed his new judici

III 

During fiscal year 1965, there were docketed 951 case

of 157 cases over fiscal year 1967. Certified cases forwarde

by the Judge Advocates General of the Armed Services 

compared with 30 in the previous fiscal year. For the sev

tive year, no mandatory appeal involving a death sen

general or flag officer was filed. The court granted 121 pe

933 docketed, or 12.9 percent, and released 162 written o

in 71.6 percent of these cases, the court reversed the de

boards of review in whole or in part. 

As noted in the last annual report, a new category des

cellaneous dockets" was inaugurated for cases wherein 

sought extraordinary relief outside of the regular appella

provided for under article 67 (0) (1), (0) (2), and (

Uniform Code of Military Justice. Activity in this categ

to increase sharply with 22 additional cases filed in thi

bered series. 

IV 

The completion of the court's 17th year of operation 

by the release of volume 17 containing the official decision

opinions of the court released through June 28, 1965. As 

last report, the full text of these opinions continues to 

magnetic tape for computer processing and retrieval fo

in the LITE (Legal Information Through Electronic

the Department of Defense. 

V 

Membership in the bar of our court now totals 13,977 

as of December 31, 1965, an increase of 667 new membe

8 
g, g, , 

y , 

discussed and, based on a study, voiced its support of S

Congress, a bill to amend section 867 (a) of title 10, infr

the U.S. Senate on November 28, 1967, and then pending 

of Representatives. The legislative program of the Am

Association in the 90th Congress recommended the e

S. 2634. 

The judges were honored at a reception held by the Pent

of the Federal Bar Association at the Bolling Air For

sioned Officers' Club on the evening of May 21, 1968. 

Associate Judge Homer Ferguson represented the c

annual meeting of the Judge Advocates Association o

1968, held in conjunction with the annual meeting of th

Bar Association in Philadelphia, Pa. Judge Ferguson also 

in the roundtable discussions of the Military Law and J

mittee of the American Bar Association. 

Chief Judge Quinn, on April 23, 1968, summarized the 

and business of the Nation's highest military tribunal as g

of the Young Lawyers' Section of the District of Columb

ciation luncheon series. 

Chief Judge Quinn prepared a review of the book "Civ

Military Justice" by Frederick Bernays Wiener for the 

Mary Law Review, Marshall-'Vythe School of Law, s

issue, volume 9, No.4, pp. 1203-1207. The chief judge a

for a legal periodical an article entitled "Some Comparis

Courts-Martial and Civilian Practice," which appeared in 

sity of California (UCLA) Law Review, volume 15, No.4

The "Army Digest," the official magazine of the Depart

Army, carried a lead article by the chief judge on the co

as requested, in layman terms. 

Chief Judge Quinn attended as a guest the judicial c

the U.S. Court of Appeals for the First Circuit held in Ne

on May 15-16, 1968. 
g 

y 

addressed the 48th basic class at the Judge Advocate Gen

Charlottesville, Va., on June 4, 1968, and the 49th D

December 4,1968. He also spoke on the court and the co

eon meeting of the Tidewater Area Legal Officers' A

Langley Air Force Dase, Va., on July 12, 1968, and pa

a roundtable discussion at the second annual Navy and M

Staff Judge Advocates conference on October 17, 1968, in 

D.C. 

Commissioner Benjamin Feld participated in the pla

ence on the subject "Human Rights of the Man in Unif

George 1Vashington University in June 1968 under the 

American Veterans' Committee. He also addressed th

mobilization designee seminar at the Judge Advocate Gen

Charlottesville, Va., on August 7, 1968. 

Commissioner Feld and Miss Dorothy Allport, the co

represented the court at the 48th annual convention of the 

Association, held at the Shoreham Hotel, ·Washington, D

ber 11-14, 1968, and attended the panel discussion "Th

Courts-Martial, 1968", sponsored by the Military Law 

Committee. Miss All port also attended the annual meeting 

ican Association of Law Libraries held in Philadelphia, 

to July 4, 1968. 

VIII 

The court was honored on February 12, 1968, by the 

Gen. Faruk Aldemir, the chief judge of the Turkish M

and other Turkish dignitaries. Included in the group o

Honorable Hasan Dincer, Minister of Justice; the Hono

Arikan, Member of Parliament of Turkey; Professor Ali 

dent of the Turkish-American Law Association; the Ho

Erdemir, member of the High Doard of Judges; the Hon

Olgac, Judge of the Supreme Court of Appeals; the H

Fahri Yucel, president of the High Criminal Court of 

10 
ing as Judge of the Court of Appeals of South Vietnam, o

6,1£)68. 

IX 

S. 2634, a bill to amend 867 (a) of title 10, United Sta

order to establish the Court of Military Appeals as the U

Military Appeals under article I of the Constitution o

States, and/or other purposes, passed the U.S. Senate on N

1967. It was pending before the House Armed Services C

concurrence when the first session of the 90th Congres

On May 8, 1968, Chief Judge Quinn, Judge Ferguson

Kilday appeared and testified at the hearings held by H

Services Subcommittee No.1, to which S. 2634 had been 

consideration. The statements of the chief judge and ass

are as follows: 

STATEMENT OF CHIEF JUDGE ROBERT E. QUINN 

Mr. Chairman and members of the committee: Thank you for in

to explain our position on Senate bill 2634. The really important 

tained in this bill is that it establishes the, U.S. Court of Milita

a judicial tribunal in every sense of the word. In the past th

intimations at least that it really was only an administrative 

bill removes any doubt about its full stature as a U.S. court. I

standing and prestige in the judicial hierarchy and, by implicatio

full powers of a U.S. court. 

The U.S. Court of Military Appeals was created 17 years ago an

faced a substantial backlog. When President Truman requested 

the first chief judge of the new court, he said you are facing a 

of cases and almost a superhuman job. We had no courthouse; we 

we had no rules; and we had no organization. This we had to build

the court; we disposed of the backlog and I think perhaps we 

Federal court in the land that can honcstly say that we have n

have disposed of approximately 21,000 cases and we are current. 

no easy job. 

During one year we wrote 319 opinions and this work is an e

order for a three-judge court. It's important that we remain up 

petitions and decisions. We do not have cases involving millions 

dollars or ·the rights and interests of great corporations but we 
becomes a senior judge and has the right, at the request of the 

any circuit, to serve temporarily in the event of need. This oill 

retired judge shall become a senior judge and, at the request of 

of the court, in the event of sickness or temporary disability of an

may be called upon to serve in his place. This only with the 

retired judge. 

There is a further provision for clerical as~istance for the reti

assistant would be a kind of combination law clerk, typist, fili

clerk, and general factotum. There is an increasing large volu

law pouring out from the Supreme Court, the OOUl"ts of appeals, a

coutts of the respective States. If a retired judge is to serve e

called upon, he must be familiar with these decisions and I 

judge keeps a kind of digest of opinions that are important t

court. This assistant would be of great value in doing these things

federal system, the retired judges are provided with a law cler

and a messenger, if they make themselves available for service. S

ment would, of course, always be subject to the approval of the 

My associates on the court are hardworking, distinguished

judges. It has always been a pleasure to work with them and 

our court and every memoer of our organization has discharged 

with honor and diligence, and I am quite proud of the record of 

of Military Appeals. 

I hope the committee sees fit to concur with the Senate in the 

bill. 

STATEMENT OF JUDGE HmIER FERGUSON 

Mr. Chairman and memoers of the committee, I share the views o

on this bill and I think it is essential to have access to senior ju

question of the court being up to date: I think it is important 

keep up to date on the cases and their work because the men in t

not permitted to have bail. It is unusual for a COUl"t of appella

to be current, and I think we have been very fortunate to have be

could use retired judges to help in the work as it increases. Also, I 

important that Congress go on record making this a legislative c

I believe that they have always intended it to be so. 

Therefore, for these reasons, and what my colleagues have said

the enactment of this legisla tion. 

STATE~fEXT OF JUDGE PAUL J. KILDAY 

Mr. Chairman, this bill as originally offered in the Senate con

tory language to the effect that any judge of the U.S. Court of M

12 
first appears on page 1 beginning at line 5 and reads: "There is a 

Court of Military Appeals establishe,d under Article I of the C

the United States and located for administrative purposes only i

ment of Defense." 

In some quarters the status of this court has been called into q

are some who contend that the court is an administrative agency 

ment of Defense and not a court in the true sense. This provisi

the status of the court as a court in the true sense and under the 

This is of the greatest importance. Those who contend that we ar

trative agency challenge our power to question the constitutio

provision of the Manual for Courts-Martial. The manual is an Ex

of the President. Under article 36 of the Uniform Code of Milita

President is given power to provide the procedure, including m

in cases tried by courts-martial. The modes of proof (rules of e

been established by the President in the manual. We have qu

manual provisions, notably a provision permitting answers to wri

tories to be admitted into evidence against an accused. We have h

unconstitutional as violative of the constitutional right to be con

witnesses and the right to cross~.xamination. 

Clearly, as a court we have the right to pass on that constituti

It is contended, however, that as an administrative agency we hav

challenge the action of the President. We have always proceeded a

this provision sustains that position. 

Another very important provision appears on page 3 beginn

and provides that in the event a judge of this court is tempora

perform his duties, "the President may desiguate a Judge of the 

Court of Appeals for the District of Columbia to fill the office for 

disability." 

The present provisions of the Uniform Code of Military Justice 

in the case of such disability, "the President may designate a 

United States Court of Appeals to fill the office." During the hearin

tenure bill this provision was seriously questioned. The objecti

a judge of a court created under article III of the Constitution 

would not be required to, perform duties on a court created und

the Constitution. The life tenure bill contained language similar to 

in the present bill. The point is that it has be,en held that courts o

of Columbia exist under both articles I and III of the Constitu

the power of the Congress under article I to exercise exclusive le

the seat of Government and under article III establishing the ju

Everything in this bill would have been accomplished by the li
pjg

BACKGROUND 

In 1950 the Congress exercised its powers under the provision 

tion enabling it to "make rules for the Government and regulat

and naval forces" by enacting the Uniform Code of Military Jus

that law, the Court of Military Appeals was established as a t

hearing only appeals from courts-martial. To date it has handle

and it is current with its workload. Its workload has been mat

ing, and it is expected that the workload will increase even more

the situation in Southeast Asia. There is one statutory requireme

which also adds to its burden, namely the requirement that it act 

tion for review within 30 days of the time the petition is recei

statutory requirement, the court must stay up to date in its 

petitions. It cannot take its time in making this kind of ruling. 

One of the purposes of this bill is to make it abundantly clear 

the Court of Military Appeals is a court, although it is a court 

of the Constitution. There has been some claim that the court, h

under the Department of Defense for administrative purposes, 

administrative agency. If it had such status, it would not be la

any of the provisions of the Manual for Courts-Martial since t

been promulgated by Presidential order. The bill makes it clear th

Military Appeals is a court and does have the power to question 

of the manual or any executive regulation or action as freely as 

a court constituted under article III of the Constitution. 

The second major purpose of this bill is to make retired judg

available to sit with the court if the chief judge should find tha

are needed. This would parallel the availability of retired judg

appeals to sit with their courts. While retired judges of regular co

are provided with a law clerk, a secretary and a messenger, this b

a retired judge to have only the services of a staff assistant wh

paid more ,than a GS-9 (presently $9,000). The retired judge wo

be agreed upon with the chief judge. The chief judge would a

tenure and workload of the staff assistant, so as to be certain th

are best utilized, while still being of assistance to the retired judg

that the staff assistant was no longer performing a useful functi

as a whole, then the chief judge would terminate his services. 

While the House, upon the request of the Armed Services Co

three separate occasions, voted to have the judges of the Court of M

have life tenure, as do judges of regular courts of appeals, ,the Se

14 
The cost of implementing this bill will be the salary of the staff 

presently, would not be more than $9,000 a year as the present 

a GS-9. 

The House of Representatives passed S. 2634, as report

1968 and the President affixed his approval on June 15, 1

Law 90-340. 

AN ACT 

To amend section 867 (a) of title 10, United States Code, in or

the Court of Military Appeals as the United States Court of M

under article I of the Constitution of the United States, and for 

Be it enacted by the Senate and House of Representatives of th

of America in Congre8s assembled, That section 867(a) (article 

10, United States Code, is amende;d to read as follows: 

"(a) (1) There is a United States Court of Military Appeals e

article I of the Constitution of the United States and located fo

purposes only in the Department of Defense. Tbe court consists 

appointed from civil life by the Preside.nt, by and with the adv

of the Senate, for a term of fifteen years. The terms of office o

of the judges serving on the effective date of this Act shall exp

after the expiration of the terms for which their predecessors 

but any judge appointed to fill a vacancy occurring prior to th

the term for which his predecessor was appointed shall be app

the unexpired term of his predecessor. Not more than two of th

court may be appointed from the same political party, nor is any 

for appointment to the court who is not a member of the bar of 

or the highest court of a State. Each judge is entitled to the s

travel allowances as are, and from time to time may be, prov

of the United States Court of Appeals, and is eligible for reap

President shall designate from time to time one of the judges to a

The chief judge of the court Shall have precedence and preside 

which he attends. The other judges shall have: precedence and p

to the seniority of their commissions. Judges whose commission

date shall have precedence according to seniority in age. The cou

its own rules of procedure and determine the number of jud

constitute a quorum. A vacancy in the: court does not impair 

remaining judges to exercise the powers of the court. 

"(2) Judges of the United States Court of Military Appeals 

by the President, upon notice and hearing, for neglect of duty 

in office, or for mental or physical disability, but for no other cau

333-067-69--3 
Act is a continuation of the Court of Military Appeals as it existed 

effective date of this Act, and no loss of rights or powers, interruptio

tion, or prejudice, to matters pending in the Court of Military A

the effective date of this Act shall result. A judge of the Court of Mil

so serving on the day before the effective date of this Act shall, for 

be a judge of the United States Court of Military Appeals under th

x 

To provide additional space for the expanded District o

court system as recommended by the President's Commissio

in the District of Columbia, the Administrator of Gene

Administration proposed moving the U.S. Court of Milita

from its present building at Fifth and E Streets NW., to in

on Lafayette Square pending the assignment of permanent 

a proposed new court building to house .the U.S. Tax Cour

posal was supported by the Attorney General. 

Chief Judge Quinn met with the Attorney General o

1968, to discuss the problems which the proposed interim 

present to the U.S. Court of Military Appeals. As a re

meeting, the proposed interim move of the court was canc

tiations were then commenced shortly thereafter to conside

relocation of the court in the new Federal courthouse w

erected at Second and E Streets N"\V., with a view of all

developing a design of the space to be assigned to the co

tenant with the U.S. Tax Court. It does not appear possib

relocation could take place before 1974, at the earlies

time the new court building is expected to be ready for oc

XI 

Two cases now pending before the United States Sup

will have important effects on the finality of this court's 

The Supreme Court has granted certiorari in Augenblic

16 
review, it invalidated his conviction. The Supreme Cou

certiorari will test the validity of this superimposition of 

appellate process in military justice matters. 

O'Callahan v. Parker, 8upra, involves the more ser

whether military courts have jurisdiction to try servicem

type offenses committed off post in time of peace. Such 

granted to the services at large for the first time under 

Code. Prior to the code's enactment, such offenses were 

in time of peace by civilian courts. Cf. Lee v. Madigan, 

3 L. ed. 2d 260, 79 S. Ct. 276 (1959). O'Callahan was 

general court-martial of assault with intent to commit ra

rape, and housebreaking. The offenses occurred in Hono

at a civilian hotel. The conviction was duly affirmed, a

denied accused's petition for review on March 1, 1957. O

196(), the court likewise denied accused's petition for a w

corpus. On December 6, 1966, it ordered a petition f

treated as a petition for writ of error coram nobis and 

oral argument. After hearing argument and consideri

filed in the case, the court issued its opinion denying the 

State8 v. O'Callahan, 16 u.S.C:~I.A. 568, 37 C.M.R. 18

accused sought relief in the Federal court system by w

corpus, the denial of which ultimately led to the present 

Supreme Court. 

Should O'Callahan's contention prevail, it will effect 

reduction in military criminal jurisdiction for courts-m

be restricted to trying military offenses, cases arising 

those civil-type crimes committeed on military install

the United States. The court, in common with Judge Ad

eral, is closely following developments in this area and 

to make appropriate recommendations, depending on 

decision. 
18 
Total as of July 1,1966 July 1, 

Total by services June 30, 1966 to to 

June 30, 1967 June 30

Petitions (art. 67(b)(3»: 

Arrny---------------------­ 10,498 354 

~avy---------------------- 4,442 288 

Air Force ___________________ 4,375 119 

Coast Guard ________________ 49 3 

TotaL ___________________ 19,364 764 

Certificates (art. 67 (b)(2»: 

Arrny---------------------­

~avy--------------------- Air Force ___________________ 

Coast Guard ________________ 

147 

208 

77 

6 

16 

7 

6 

1 

TotaL ___________________ 438 30 

Mandatory (art. 67(b)(1»: 

Arrny---------------------­

~avy--------------------- Air Force ___________________ 

Coast Guard ________________ 

31 

3 

3 

0 

0 

0 

0 

0 

TotaL ___________________ 37 0 

Total cases docketed _______ 19,839 794 

'2 Flag officer cases; 1 ArmYI and 1 Navy. 

• 21,211 cases actually assigned docket numbers. Overage due to multi

same cases. 
With opinion ____________ 8 0 

Without opinion _________ 40 1 

I>isposed of by order setting 

aside findings and sentence_ 5 0 

Remanded to Board of 

Review___________________ 168 0 

Court action due (30 days) 1__ 42 80 3

Awaiting replies 

1____________ 18 16 2

Certificates (art. 67 (b) (2»: 

Opinions rendered___________ 427 15 2

Opinions pending 

1___________ 2 15 

Withdrawn_________________ 

Remanded__________________ 7 

2 

0 

0 

I>isposed of by order________ 1 0 

Set for hearing 1_____________ 0 0 

Ready for hearing 1__________ 0 0 

Awaiting briefs 

1_____________ 0 2 

Mandatory (art. 67(b)(1»: 

Opinions rendered___________ 37 0 

Opinions pending____________ 0 0 

Remanded__________________ 1 0 

Awaiting briefs 

1_____________ 0 0 

= Opinions rendered: 

Petitions___________________ 1,768 97 11

Motions to dismiss ___________ 11 0 

Motions to stay proceedings__ 1 0 

Per curiam grants ___________ 40 8 

Certificates_________________ 375 14 2

Certificates and petitions_____ Mandatory_________________ 49 

37 

1 

0 

Rernanded__________________ 2 0 

Petitions for a new triaL _____ 2 0 

Petitions for reconsideration of: 

I>enialordeL ___________ 5 1 

Opinion ________________ 1 0 

Petition for new triaL____ 1 0 

Motion to reopen ____________ 1 0 

See footnotes at end of table. 

20 
Petitions dismissed __________ 15 3 1 

Petitions withdrawn_________ 344 11 19 

Certificates withdrawn_______ 7 0 0 

Certificates disposed of by order____________________ 1 0 0 

Opinions rendered ___________ 2,286 123 162 

Disposed of on motion to 

dismiss: 

With opinion ___________ 8 0 0 

Without opinion_________ 40 1 0 

Disposed of by order setting 

aside findings and sentence__ 5 0 

Writ of error coram nobis 

by order_________________ 2 0 

Motion for bail denied _______ 1 0 

Remanded to board of review_ 169 0 1

TotaL ___________________ 19,749 750 1,01

Miscellaneous dockets (January 

1967 to present) : Pending 3_____________________________ 5 

Granted______________________________ 0 

Denied_______________________________ 2 1

Withdrawn___________________________ 0 

Dismissed____________________________ 2 

Opinion rendered______________________ I 

TotaI __________________________________________________

See footnotes a t end of table. 
adatoyawatg bes __________ 0 

Total________________________ 84 1

I As of June 30, 1966, 1967, and 1968. 

• 2,579 cases were disposed of by 2,545 published opinions. 131 opinions were rend

72 Army officers, 32 Air Force officers, 18 Navy officers, 6 Marine Corps officers, 2 Co

1 West Point cadet. In addition 19 opinions were rendered in cases involving 20 civ

concerned enlisted personnel. 

I As of June 30, 1967 and 1968. 

22 
COURTMARTIAL ADMINISTRATION 


The number of persons tried by courts-martial for fisca

(average strength total Army, 1,510,064) follows: 

Convicted Acquitted 

General_________________________________ _ 2, 221 154 

Special__________________________________ _ 41,834 1,935 

Summary________________________________ _ 10,594 947 

Total _____________________________ _ 54,649 3,036 

Records of trial by general court-martial received by 

Advocate General during fiscal year 1968: 

For review under article 66_____________________________________

For examination under article 69________________________________

Total ___________________________________________________

1Vorkloads of the Army boards of review during the sa

On hand at the beginning of period______________________________

]Referred for review____________________________________________

Total ___________________________________________________

]Reviewed _____________________________________________________

Pending at close of period______________________________________

Total ___________________________________________________

1 This figure Includes 22 cases which were referred to boards of review 

article 69, Uniform Code of Military Justice, and 50 cases on rehear

slderatlon. 

Actions taken during period July 1, 1967, through June 

boards of review: .~ffirmed ______________________________________________________

Sentence modified______________________________________________

Charges dismissed_____________________________________________
requested representation by appellate defense counsel

in the case of 474 accused were forwarded to the U.S. Cou

Appeals pursuant to the three subdivisions of article 

comprised 23.4 percent of the number of these cases revie

of review during the period. Of the mentioned 474 ca

forwarded on petition of accused and six ·were certified 

Advocate General. 

The actions taken by the Court of Military Appeals o

for fiscal year 1968 were as follows: 

Opinions on petitions Certification Mandatory review Petitio

deni

Affirmed Reversed Affirmed Reversed Affirmed Reversed 

14 44 5 13 o o 423 

In compliance with the mandate of article 6(a), Uni

Military Justice, the Judge Advocate General and se

of his staff inspected numerous judge advocate offices 

States and overseas in the supervision of the administrati

justice. 

UNITED STATES ARMY JUDICIARY ACTIVITI

During the period July 29 through August 9, 1968, t

Judiciary conducted a law officer seminar at the Ju

General's School. Participating in the seminar were activ

from the Army, Navy, and Marine Corps, and reservists 

designees from the Army). The latter group included 

preme court justices, a judge ofa lower court, a law 

several practicing attorneys. 

The Law Office Handbook, DA Pamphlet 27-9, was r

1968. The draft changes were published in the Judge A

Service and were distributed to the law officers as comple

plete handbook should be published and distributed 

"Manual for Courts-Martial, United States, 1969", becom

24 
courts-martial which has been in preparation for a numb

reflects the law at the time the draft was completed (May 

purpose of this revision was to conform the Manual for Cou

to the law as modified and interpreted by decisions of the 

of Military Appeals and the U.S. Supreme Court. An effo

made wherever possible to improve or streamline procedu

improve the guidance portions of the Manual. Army regulat

menting this Manual were also prepared. 

Enactment of the Military Justice Act of 1968 requir

revision of the Manual for Courts-martial. Changes in th

Code of Military Justice brought about by the Military Jus

1968 make this revision of the Manual for Courts-martial s

Department of Defense has designated the Secretary of th

executive agent for revision of the Manual for Courts-Ma

The Judge Advocate General of the Army, acting for the 

of the Army, heads a triservice committee that is now d

new Manual provisions. The new Manual will he prom

Executive Order and will become effective on August 1, 196

the act goes into effect. Army regulations implementing th

are also being prepared. 

PERSONNEL 

The strength of the Judge Advocate General's Corps co

grow in fiscal year 1968. At the year end 1,490 judge advo

on active duty, an increase of 90 over the previous year

separate legal offices were staffed to meet the increasing w

demand for legal services. Regular Army strength reach

flecting an overall gain of 44 officers, most in the grade 

Following their admission to the bar, 33 new judge advo

appointed under the excess leave program which continues 

at its full-planned capacity of 105. 

Retention of experienced officers remains the principa

facing the Corps. Unacceptable losses continue to occur w

officers complete their obligated service and when experie
ppg

advocates and personnel specialists from all services. A

work, the group reviewed and analyzed responses to 

sive questionnaire addressed to all judge advocates on a

those who left the service in the past 5 years. For the A

responses received from present and former judge advo

vital information on attitudes, intentions and various fa

ing career decisions. 

In October 1968, the group submitted its formal repor

of its in-depth study. The specific findings and recomme

not been released to date. 

The Military Justice Act of 1968 will require a subst

of new judge advocates to implement its provisions. Pl

way to procure, train and utilize these additional officer

time, the Judge Advocate General will continue his effo

the retention rate of trained personnel and attain a m

experience level throughout the Corps. 

EDUCATION AND TRAINING 

During calendar year 1968, the Judge Advocate Ge

U.S. Army, provided resident instruction for 906 

instruction was presented in 19 courses. 

Two cycles of the 10-week basic class were conducted 

during 1968. The 48th Basic Class of 92 students, includ

nian, one Ethiopian, Korean, three Thai, and one Viet

was graduated in June 1968. The 49th Basic Class of 9

cluding one Korean officer and one Vietnamese officer, 

in December. A judge advocate officer orientation course 

was graduated in September 1968. 

The 16th Judge Advocate Officer Advanced Course 

from the School in May of 1968. It was composed of 31 st

ing one officer of the U.S. Navy, two officers of the U.S. 

one officer from Iran, and one officer from the Republic 

26 
S-301, the Role of the Judge Advocate General's Corps. A 

to the basic evidence text, Department of the Army Pamp

a revised Legal Clerk's Handbook for ,printing as a Depar

Army pamphlet, revised DA ,Pamphlet 27-150, Procur

Statutes, revised Outline of Procurement Law Instructi

issues of the Procurement Legal Service were also prep

School in 1968. 

The annual Judge Advocate General's Conference was 

School during the period October 7-10, 1968. Over 1£)0 c

tended. The "Manual for Courts-Martial, United States

the Military Justice Act of 1968 were among the topics dis

with many other legal subjoots. 

The School continued to oversee qualification of enliste

as legal clerks and court reporters, through preparation a

tration of standard qualifying tests requiring knowledge 

form Code of Military Justice. 

Four issues of the "Military Law Review" were publi

1968. Once again, articles of interest to all military att

predominant. Volume 40 contained a 10-year cumulative in

During 1968, 32 issues of the "Judge Advocate Legal S

published to insure rapid dissemination of recent militar

velopments to judge advocates in the field. This newsle

digests of all U.S. Court of Military Appeals decisions, a

Army board of review opinions, selected military affai

and selected civilian court decisions. 

During calendar year 1968, 60 hours of filmed instr

prepared at the School for use by reserve judge advocates. 

included in the films were claims, military affairs, procu

military justice, and international and comparative law. S

instructor packets were prepared to accompany the films. 

training films, with coordinated student and instructor m

new concept in U.S. Army Reserve instruction. 

During 1968, a Military Legal Center was established 
28 
tee report reach the Armed Services Committees of Con

after the convening of each new session, this report, altho

ing calendar year 1968, contains, unless otherwise indicate

information covering fiscal year 1968. 

Courts-martial of all types--general, special, and su

vened within the Navy and Marine Corps decreased fro

fiscal year 1967 to 28,962 in fiscal year 1968. Although the

case increase in general courts-martial and special co

involving bad-conduct discharges, there was a 2,913-case 

special courts-martial not involving bad-conduct discharg

mary courts-martial, which accounted for the overall 

cases. The fluctuation in each type of case is set forth bel

Fiscal Fiscal 

Type case year year Increase or decrease 

1968 1967 

General court-martiaL ______ _ 832 553 279 increase ____ 

Special court-martial involv­ 3,055 2,890 165 increase ____ 

ing bad-conduct discharge. 

Special court-martial not in­ 12,885 14, 633 1,7408 decrease__

volving bad-conduct 

discharge. 

Summary court-martiaL _____ 12, 190 13, 355 1,165 decrease __

TotaL _______________ 28,962 31,431 2,469 decrease __

During fiscal year 1968 Navy boards of review receive

587 general courts-martial and 3,055 special courts-ma

3,642) as compared with 383 general courts-martial and 

courts-martial (total, 3,273) during fiscal year 1967. Of tb

received by boards of review during fiscal year 1968, 1
centrations of Navy personnel. The concept of these c

as many as possible of the Navy lawyers in a particula

assigned to a central activity so that the pooling of av

will make possible greater flexibility of assignment o

efficient application of experience, improved coordinatio

and, overall, more efficient utilization of the available 

Pursuant to the Secretary's approval of the concept o

the first of such centers was established on a pilot bas

in 1966. The test period for the Norfolk Law Center prov

and it has been established on a permanent basis. A seco

been established at San Diego and studies are currentl

with respect to the establishment of law centers worldwide

The provisions of the Military Justice Act of 1968 

lawyer counsel for the accused in all special courts-mar

ment, except in rare circumstances, will place an additio

on Navy judge advocates. The establishment of law cente

will be required in order to properly furnish fleet units 

lawyer counsel with a minimum increase in the num

advocates. Additional judge advocates will be detailed t

law centers to cover the anticipated additional workload. 

A new summary courts-martial trial guide, NAVPER

been published and distributed to the field in order to p

lines for use in summary court-martial proceedings. 

The problems of administering military justice under 

ditions have continued to be the object of study in 1068. 

indicate that many of the problems will be solved upon im

of the Military Justice Act of 1968. 

The new Manual for Courts-martial, mentioned in my 

ports, became effective on January 1, 1969. Due to ch

Uniform Code of Military Justice, effected by the Mi

Act of 1068, it has become necessary to make numerou

the new Manual. An ad hoc joint services committee is p

paring the required changes, and their work is moving to

ful completion. 

30 
pp , 

classes consisted of 719 officers of the Navy, Marine Corp

Guard. In addition thereto, 367 lawyer officers of the N

Corps, and Coast Guard have completed nine 7-week o

courses offered by the School. 

Three hundred thirty-six officers completed the senior 

courses offered in Newport, R.I., and Quantico, Va. Th

fourteen officers completed the Reserve seminars for law

in Newport, R.I., Seattle, ·Wash., and Jacksonville, F

officers of the Navy were given special instruction in mi

by officers of the Naval Justice School staff as part of 

the Naval Destroyer School. 

Five hundred eighty-seven enlisted members of the A

Air Force, Marine Corps, and Coast Guard have gra

seven 5-week legal clerk and court reporting courses. 

In an effort to consolidate ideas as to effective method

tering the Uniform Code of Military Justice today, a c

staff judge advocates from all major Navy and Marine 

mands was held in October 1968 in 'Vashington, D.C. Th

was eminently successful, and will prove of help in sol

problems and in providing ideas for future study and imp

A f:imilar conference is planned for the fall of 1969. 

JOSEPII B. McDEVITT, 

Rear Admiral, USN, 


The Judge Advocate Ge

U
Total 

Summary courts-martial: 

Received for review unde.r article 65c_______________________

Reviewed in the field_____________________________________

Total _________________________________________________

Total all courts-martiaL_______________________________

Board of review actions: 

On hand for review July 1, 1961-__________________________

Received for review during fiscal year 1968________________

Total on hand_________________________________________

Reviewed during fiscal year 1968__________________________

Pending review on June 30, 1968___________________________

Total _________________________________________________

Findings modified or set aside by boards of review during fisc

1968 ______________________________________________________

Requests for appellate counsel________________________________

Court of Military Appeals actions: 

Petitions forwarded to U.S.C.M.A__________________________

Cases certified to U.S.C.l\f.A. by JAG______________________

Total cases docketed with U.S.C.l\f.A.____________________

Petitions granted by U.S.C.M.A___________________________

Petitions denied by U.S.C.l\f.A_____________________________

Total petitions acted upon by U.S.C.l\f.A_________________

32 
Judge Advocate General, made staff visits to legal offices i

States and overseas as required by article 6 (a), Unifo

Military Justice. Generals Manss and Lumpkin also atten

bar association meetings and spoke before numerous c

sional and military organizations. The Judge Advocate Ge

a world-wide Major Command and General Court-Martia

Authority Staff Judge Advocates Conference at Headq

Air Force in November 1968. The new Manual for Cou

1969, was given detailed coverage at the conference. T

Judge Act of 1968 was also covered and each conferee giv

the law and an outline of the changes in court-martial p

procedures brought about by the act so that judge advo

field will be properly indoctrinated by the time the act beco

in August 1969. 

2. a. The number of records of trial receiyed in the O

Judge Advocate General, for review pursuant to article 

examination pursuant to article 69, during fiscal year 19

in the following table: 

Tatal number records received__________________________________

For review under article 66_________________________________

General court-martial records__________________________

Special court-martial record~___________________________

Examined under 'article 69_________________________________

The boards of review modified the findings and/or sentenc

b. The workload of the boards of review was as follows

Cases on hand June 30, 1961-___________________________________

Cases referred for review______________________________________

Total for review________________________________________

Cases reviewed and dispatchpd_________________________________

Cases on hand June 30, 1968____________________________________
Percent total forwarded of total cases reviewed__________________

Petitions granted ____________________________________________

Percent grants of total petitioned______________________________

Percent petitions granted of total cases reviewed by boards of revie

e. During the fiscal year, the following numbers of c

were convened in the Air Force. 

General courts-martiaL________________________________________

Special courts-martiaL________________________________________

Summary courts-martiaL______________________________________

Total __________________________________________________

3. Reportable article 15 actions, fiscal year 1968 : 

Numb

cas

Total cases ___________________________________________ 28,1

Officers__________________________________________ _ 2

AITmen __________________________________________ _ 27,9

Punishments imposed: Officers__________________________________________ _ 3

AITmen __________________________________________ _ 48,2

Restrictions (over 14 days) : 
 Officers______________________________________ _ 

AITmen______________________________________ _ 5,6

Quarters arrest/correctional custody: Officers______________________________________ _ 

AITmen______________________________________ _ 4, 4

Extra duties (over 14 days): Airmen_________________ _ 2,3

Reduction in grade: Airmen_________ ______________ _ 18,4

Forfeiture of pay: Officers______________________________________ _ 1

AITmen ______________________________________ _ 15,9

Detention of pay: Officers _____________________________________ _ 

AITmen______________________________________ _ 

34 
Appeam denied ____________________________________ 1,09

Officers______________________________________ _ 

Airmen_____________________________________ _ 1,08

Suspension of punishmenL _________________________ 10,38

Officem_______________________________________ 

Arrmen_______________________________________ 1~385 

Other action______________________________________ 1,52

Officem______________________________________ _ 

Arrmen______________________________________ _ 1,51

I Of total cases (28,164). 


I Of appeals taken (1,302). 


4. Upon enactment of the Military Justice Act of 19

Force transmitted to the .field a message outlining proc

plementing the amendments to articles 69 and 73 which b

tive the date the act was signed. Air Force Manual 110-

Justice Guide, and some other military justice directives w

ten and consolidated into Air Force Manual 111-1, Mili

Guide. It was published December 17, 1D68, and distributed 

to give judge advocates current guidance in relation to M

and the latest court decisions. Change 5 to AFM 110-5, Co

Instructions Guide, was published December 18, 1968, and 

to the field to give judge advocates current guidance in 

in relation to MCM, 1969, and the latest court decision

Force also published and distributed to the field an u

pamphlet entitled Air Force Summary of Changes in t

for Courts-Martial, 1969. This pamphlet made a paragrap

graph summary of the changes incorporated in the new MC

5. During this year the 10th volume of the Air Force 

Review was published and distributed. The Law Review 
Martial Jurisdiction Over Reservists, volume X, No.

Retention of Contractor Employees," volume X, No.5; "

ment and Article 31, Admissibility of Bodily Fluid Te

Courts-Martial," Volume X, No.5; "Impeachment of 

Evidence of Prior Misconduct," volume X, No.4. 

6. The Air Force JAG Reporter was published month

year. This publication contains digests of the latest op

Court of Military Appeals, selected opinions of the boa

and Federal and State cases of interest to Air Force jud

These digests are printed in the Reporter on 5- by 8-in

card stock with descriptive word index lines to facilitat

they not only serve as an advance report of the latest 

in the law but also as a research tool in the interim between 

opinion and its full text publication in permanently bo

The Reporter also contains other opinions, notices, a

for guidance to the judge advocates. 

1. The Office of the Judge Advocate General acted as 

the Armed Services in administering a contract with a civ

publisher for publication of the Court-Martial Repor

tains the decisions of the U.S. Court of Military Appeal

decisions of the boards of review of the services. The co

fore ,provided for a separate volume containing a dige

opinions of the Judge Advocates General but this public

continued in its present form, effective July 1, 1968. 

8. On June 30, 1968, there were 1,223 judge advocate

these, 633 were members of the Regular Air Force, 25

Reserve officers (of this number, 109 entered active duty 

serve status and have a 4-year active duty service obliga

were Reserve officers with established dates of separation

officer strength decreased by 17 between June 30, 1967, 

1968. 

36 


g p

partment of Transportation submitted pursuant to artic

the Uniform Code of Military Justice. Unless otherwise 

figures in this report are for the fiscal year beginning July 

ending June 30, 1968, the first complete year during whic

Guard was a part of the Department of Transportation. T

personnel strength of the Coast Guard during the year 

The table below shows the number of court-martial tr

received for final review, or if final review had been comp

field, for filing, during the year. For comparison purposes 

for court-martial records received in the 4 previous yea

listed. 

1968 1967 1966 

General courts-martiaL ____________________ 0 2 3 

Special courts-martiaL _____________________ 91 68 95 

Summary courts-martiaL___________________ 216 211 212 

Totru ______________________________ 307 281 310 

The 91 special courts-martial in 1968 involved only five 

a punitive discharge. One of these was disapproved by th

authority, so that only four cases required review by th

review. In 70 of the 91 cases, the supervisory review by an 

cising general court-martial jurisdiction was accomplished 

In 17 of the cases, the Commandant, U.S. Coast Guard, wa

visory authority; the remainder were board of review cas

nine of the special courts-martial were appointed by c

officers of ships or oversea stations; 62 were convened by c

officers ashore in the United States. 

In view of the enactment of the Military Justice Act 

declared purpose of which is "to increase the participa

officers and counsel on courts-martial", the extent of parti
dent, trial counsel, and defense counsel-functioned at o

trials (18.6 percent). 

After August 1, 1969, the amended article 27(c) of 

require that the accused be afforded the opportunity to b

by qualified counsel in every special court-martial, unles

cannot be obtained on account of physical conditions o

igencies. This provision should result in substantially 

the past year's 69 percent professional representation 

persons. Likewise the provision of article 19 prohibiting 

discharge unless a military judge is detailed to the trial 

certain conditions) should materially increase the percen

utilizing a full set of lawyers. 

The special court-martial trials of 1968 resulted in 8

and six acquittals. Three of the convictions were set asi

Although 44 of the cases were uncontested, only 32 cases 

without modification of either findings or sentence. Of th

which survived appellate review, 38 were affirmed as 

sentences were mitigated. 

The 91 special court-martial trials disposed of 248 o

most frequently appearing were: 

AWOL or desertioll__________________________________________

Larceny or wrongful appropriation____________________________

Marihuana offenses__________________________________________

Violation of regulation or orders______________________________

])runk or disorderly__________________________________________

lIissing ship_________________________________________________

Breach of restriction_________________________________________

Willful disobedience__________________________________________

])isrespect to officer__________________________________________

Property darnage_____________________________________________

])rugs other than rnarihuana__________________________________

Assaults ____________________________________________________

Others ______________________________________________________

No Coast Guard accused petitioned the Court of Mil

for grant of review during either the fiscal or the calen

40 
gp

of lieutenant junior grade as authorized by 14 U.S.C. 7

R. 'TENNEY J OlINSON

Acting General Oou

Department of Tran

1.5. GOVERNMENT PRIHTINi#