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 JUS

For the Period 


January I, 1972 to December 31, 1

PROPERTY OF U.S. ARtS( 

THE JUOGEADVOCATE GENERAL'S SC

LIBRARY 

HOUSE OF REPRESENTATIVES 

and to the 


SECRETARY OF DEFENSE 


AND SECRETARY OF TRANSPORTA

and the 


SECRETARIES OF THE DEPARTMENTS OF 

ARMY, NAVY, AND AIR FORCE 


PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTIC

For the Period 


January 1, 1972 to December 31, 1972 
JOINT REPORT OF THE UNITED STATES COURT OF MILITA

AND THE JUDGE ADVOCATES GENERAL OF THE ARM

AND THE GENERAL COUNSEL OF THE DEPARTMENT OF 

TATION 

REPORT OF THE UNITED STATES COURT OF MILITARY APPEAL

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FO

REPORT OF THE GENERAL COUNSEL OF THE DEPARTMENT 

PORTATION (UNITED STATES COAST GUARD) 
and the 

JUDGE ADVOCATES GENERAL 


OF THE ARMED FORCES 


and the 

GENERAL COUNSEL 


DEPARTMENT OF TRANSPORTATION 


January 1, 1972 to December 31, .1972 

As required by Article 67(g), Uniform Code o

Justice, the Judges of the United States Court o

Appeals, the Judge Advocates General of the milita

ments, and the General Counsel of the Department 

portation submit their annual joint report on the op

the Uniform Code of Military Justice to the Comm

Armed Services of the United States Senate and 

Representatives and to the Secretaries of Defense, Tr

tion, Army, Navy, and Air Force. 

The Judges, the Judge Advocates General, and th

Counsel, constituting the Code Committee, met sev

throughout the year. These conferences have resul

interchange of information and continued consid

possible amendmentsto the Uniform Code ofMilitary J

The Code Committee continues to recommend consid

legislation that would (1) specify the extent to which 

of Military Appeals, the Courts of Military Review, 

tary judges may entertain petitions for extraordin

(2) permit the execution of a sentence to confinem

time the convening authority approves the sentence 

nate the pointless and costly segregation of various 
period. These decisions hold the Article unconst

vagueness. Avrech v. United States, __F.2d_

1973); Levy v. United States, __F.2d__(3rd 

While the Committee is informed that these decisi

appealed to the Supreme Court, there is, despit

years of constitutional history and precedent, n

that the Article will survive further appellate 

There is therefore a need for early congressional c

of the problem. 

A standing committee composed of representa

services continues to study subjects related to the 

tion of military justice under the Code and to mak

dations to the Code Committee regarding propose

action. The Committee is currently considering s

proposals that may become future Code Committe

dations. 

Delay in processing disciplinary actions conti

cern the Court, The Judge Advocates General, and 

Counsel. Completion of any criminal trial and app

cannot be accomplished within a few days, but 

which the transcription of a record of trial and a

convening authority were prolonged over several m

often enough that this part of the appellate pr

further attention and action to assure that the 

afforded the speediest possible justice consiste

process. 

In many cases, sentences to confinement have lon

served by the time the case is forwarded to the Cou

Review or to the Court of Military Appeals. This me

accused is temporarily restored to duty pending c

appellate review. Since statistically the chances of 

slight, the accused knows he probably will receiv

discharge, and his continuation on duty in this 

adversely affects morale and discipline until the 

sentence can be executed. 

2 
tion and other career incentives either vanish or be

important to the potential candidate. The outlook for 

retention is uncertain. The Committee recommends 

gress consider further incentives to attract and retai

for a full military career. . 

The separate reports of the Court of Military Appe

the individual services show the number of courts-m

the appellate review category during the reportin

Exhibit A to this report recapitulates the number 

martial of all types tried throughout the world, the n

these cases reviewed by the Courts of Military Review

number ultimately reviewed by the Court ofMilitary Ap

Respectfully submitted, 

WILUAM H. DAR

Chie

ROBERT E. QUIN

Associat

ROBERT M. DUN

Associat

GEORGE S. PRUG

The Judge Advoc

U.S

MERLIN H. STAR

The Judge Advoc

U.S

JAMES S. CHENE

The Judge Advoc

U.S. Ai

JOHN W. BARNUM

General Co

Department of Tr
Court-Martial Cases 

Arrny--------------------------------------------------- ___

~avy-------------------------------------------------- ____

Air Force __________________________________________________

Coast Guard _______________________________________________

Total________________________________________________

Cases Revieu'ed by Courts of Military Review 

Arrny--------------------------------------------------______

~avy--------------------------------------------------____

Air Force__________________________________________________

Coast Guard_______________________________________________

Total________________________________________________

Cases Docketed with U.S. Court of Military Appeals 

Arrny--------------------------------------------------______

~avy--------------------------------------------------____

AirForce__________________________________________________

Coast Guard_______________________________________________

Total________________________________________________

4 
In compliance with the provisions of Article 67, 

Code of Military Justice, 10 U.S.C. § 867, the Chief J

Associate Judges of the United States Court of Mil

peals submit their report on the administration of t

and military justice to the Committees on Armed S

the United States Senate and House of Representat

the Secretaries of Defense, Transportation, Army, N

Air Force. 

During fiscal year 1972, the Court's workload 

creased. In 1971, 1,268 cases were docketed, and in 

number increased to 1,497. This figure includes 1,419 

27 certificates, and 51 petitions for extraordinary relie

the largest number of cases that the Court has review

1958. Despite the increased workload and a reductio

number of employees, the Court has maintained its do

current status. There is no backlog. 

The Court issued 129 opinions during this period

resulted from grants of the accuseds' petitions for r

from certificates filed by The Judge Advocates Gen

from a combination of the accused's petition and T

Advocate General's certificate, and 14 from petition

the accused for extraordinary relief. 

Searches and seizures and the convening authori

trial ·review are areas that continue to cause diffic

concept of probable cause to search is difficult for law

judges and evidently gives nonlawyers even more d

Commanding officers who normally act as magistr

grant permission to search frequently authorize searc

inadequate justification, resulting in the exclusion 

evidence either at trial or on appellate review. 

In an effort to remedy the problem, the Army has au

its military judges to issue search warrants. This ch

been in operation too briefly for sound conclusions 

effect. We hope it will reduce the number of cases 

because of inadequate justification for a search. If 
scribe the record and obtain the convening autho

By that time, the accused has often served the 

portion of his sentence. The execution of the rem

await completion of appellate review. This creates a 

the services in having temporarily restored to duty 

who knows that, in the normal course of events, he w

receive a punitive discharge, and thus has little 

perform properly. This condition also adversely 

rights of the accused to a speedy disposition of his 

administration of military justice in general, th

which depends on the rapid punishment of offende

The services have taken administrative steps to r

delays. Innovations such as leave without pay, co

parole, and requests for early execution of sen

reduced the period of active duty between the end o

to confinement and the final approval of the se

Army has also used in one command a system 

"magistrates" who visit confinement facilities, 

length of pretrial confinement of prisoners awaiti

order the release of those whose detention is co

long. 

Admirable as these efforts are, the Court believes 

administrative measures are required. Responsib

pretrial confinement of the accused and the speed

of his case is ultimately a command function. In th

of military justice administration under the Code, 

service established strict controls over the process

every stage of the court-martial process, with nece

being permitted at defense request. We recommen

tion of a return to these controls or the adoptio

measures to eliminate unnecessary delay and to sp

and appellate review of all courts-martial. 

Seven hundred and thirty-five attorneys were ad

ing the year to the bar of the Court. The total numb

now admitted to practice before the Court is 17,307. 

6 
pgg

to the Court in disposing of the cases before it. We 

these young counsel for their competence and diligen

A detailed analysis of the cases that have been pro

the Court since the beginning of its operations i

attached. (Exhibit A). 

WILLIAM H. DAR

Chi

ROBERT E. QUIN

Associa

ROBERT M. DUN

Associa
CASES DOCKETED 

Total as of July 1, 1970 July 1, 

Total by Services June 30,1970 to to 

June 30,1971 June 30

Petitions (Art. 67 (b )(3»: Arrny _______________________ _ 

~avy _______________________ _ 

Air Force ___________________ _ 

Coast Guard ________________ _ 

12,222 

5,874 

4,883 

53 

505 

623 

74 

2 

Total_____________________ _ 23,032 1,204 1,4

Certificates (Art. 67(b)(2»: Arrny _______________________ _ 177 11 

~avy_______________________ _ 

Air Force ___________________ _ 226 

95 

2 

1 

Coast Guard ________________ _ 10 1 

Total_____________________ _ 508 15 

Mandatory Arrny (Art. 67(b)(1»: _______________________ _ 31 0 

~avy_______________________ _ 3 0 

Air Force ______ ~ ____________ _ 3 0 

Coast Guard ________________ _ 0 0 

TotaL ____________________ _ 37 0 

=========

Total cases docketed _______ _ 23,577 1,219 1,

12 Flag officer cases; 1 Army and 1 Navy• • 2",7,,7 cases actcally assigaed docket ncmbers. Overage due to multiple actions 

. ~ 

8 
Disposed of on Motion to 

Dismiss: , With Opinion _____________ 8 0 0 

Without Opinion__________ 44 0 1 

Disposed of by Order setting 

aside findings and sentence ___ Remanded ___________________ 6 

181 

0 

7 

0 

11 

Court action due (30 days)3 ____ 71 90 80 

Awaiting replies 3 _____________ 50 24 48 

Certificates (Art. 67(b)(2»: 

Opinions rendered _____________ 493 10 25 

Opinions pending 

3____________ 2 7 6 

Withdrawn___________________ 8 0 0 

Remanded ___________________ 4 0 0 

Disposed of by Order__________ 1 0 0 

Set for hearing 

3______________ 0 0 0 

Ready for hearing 8 ___________ 1 0 1 

Awaiting briefs 

3______________ 0 0 1 

Leave to file denied ___________ 0 0 2 

Mandatory (Art. 67(b)(I»: 

Opinions rendered _____________ 37 0 0 

Opinions pending _____________ Remanded ___________________ 0 

1 

0 

0 

0 

0 

Awaiting briefs 

3______________ 0 0 0 

Opinions rendered: 

Petitions_____________________ 2,307 224 90 

Motions to dismiss __________ - - 11 0 0 

Motions to Stay Proceedings ___ 1 0 0 

Per Curiam Grants_________ --­ 57 0 0 

Certificates___________________ 431 10 24 

Certificates and Petitions______ Mandatory___________________ 59 

37 

0 

0 

1 

0 

Petitions Remanded ___________ 2 0 0 

Petitions for aNew TriaL _____ 2 0 0 

Petitions for Reconsideration of: 

Denial Order _____________ 10 0 0 

Opinion__________________ 4 0 0 

Petition for New TriaL ____ 1 0 0 

See footnotes at end of table. 
Total ______________________ 2,964 253 

Completed cases: Petitionsdenied_______________ 19,784 1,009 1,2

Petitions dismissed ____________ 19 0 

Charges dismissed by Order ____ 1 1 

Petitions withdrawn ___________ 405 10 

Certificates withdrawn _________ 8 0 

Certificates disposed of by Order______________________ 1 0 

Opinions rendered _____________ 2,926 235 

Disposed of on Motion to 

Dismiss: 

With Opinion_____________ 8 0 

Without Opinion __________ 44 0 

Disposed of by Order setting 

aside findings and sentence___ 6 0 

Writ of Error Coram Nobis by Order______________________ 3 0 

Mot:on for Bail denied _________ 1 0 

Remanded ___________________ 184 7 

Total______________________ 23,390 1,262 1,4

Miscellaneous Docket Nos. Assigned: 167 49 

(1967 to Present) Pending______________________ 

Granted _____________________ 0 

2 

0 

1 

Den~d ______________________ 78 17 

Withdrawn___________________ 1 1 

Dismissed____________________ 49 15 

Issue moot- __________________ 1 1 

Remanded ___________________ 0 0 

Opinions rendered _____________ 37 17 

Opinion rendered (Pet for 

Reconsideration) ____________ 1 0 

Pet for Reconsideration denied __ 4 2 

Pet for New Trial denied_______ 0 0 

TotaL _____________________ 173 54 

See footnotes at end of table. 

10 
______________________ 

Mandatory-awaiting briefs________ 0 0 

Tot~ 190 147 

• As of June 30, 1970, 1971 and 1972. 
 , 3,346 cases were disposed of by 3,309 published Opinions. 170 Opinions were rend

volving 98 Army officprs, 37 Air Force officers, 24 Navy officers, 8 Marine Corps officers

officers, and 1 West Point cadet. In addition 19 opinions were rendered in cases invol

The remainder concerned enlistt>d personneL $ Overage due to multiple actioDs on the same cases. 
This past year, emphasis was placed upon pr

provements which could be effected by regulatory c

than by requiring statutory amendment. It is cl

need now is for stability, training and education in 

and evaluation of existing laws rather than furthe

change, and turbulence which further statutory am

revision would surely cause. 

The Army representatives to the Code Commi

Joint Service Committee on Military Justice con

ever, to participate in the process of reviewing both 

for Courts-Martial, United States, 1969 (Revised e

the Uniform Code of Military Justice, with a view 

dating these positive laws in accordance with the 

Army, developments in the law, and changes in 

legal system. 

Delay in the processing time of courts-martial a

punishment continued to plague the Army in 19

grams described below-some of which are ong

new-did alleviate delay to a large extent. The n

Court, published in the Military Judges Guide a

Regulation 27-10, established specific periods betw

vice of charges and trial date for both general 

courts-martial. For instance, one of the rules 

military judge to set a trial date in general court-m

within 20 days after an accused has been served w

unless there is a valid reason why a trial cannot b

this period. Legal centers and branch offices u

Europe (and in the United States on a test b

processing time for substantially all legal actions. 

time reduction possible under this concept were o

recent survey of the Fort Belvoir legal center. Ar

essing time was reduced from 19 to 2-3 days. D

processing of administrative discharges for uns

unfitness was reduced to 72 hours, and estim

12 
qy jgp

for making a determination as to the continuation o

confinement as to any prisoner in a US Army Eur

Seventh Army confinement facility. Since the prog

been in existence, the magistrates have considered 2

oners in pretrial confinement and have released 301 

Recently, the Chief of Staff, Army, approved a tes

Military Magistrate Program at two Army installatio

United States. In this test, the installation staffjudge 

will be designated by the installation commander to 

military magistrates for the installation confinemen

The experience of the Program in Europe is such as 

most criticism leveled at pretrial confinement proce

noticeable improvement has been seen in the expediti

dling of cases where pretrial confinement is involved, a

is increased circumspection by all concerned before a 

man is ordered into such restraint. 

As the result of the recommendations of the Mathes

mittee, the Office ofThe Judge Advocate General becam

of the increasing need for military justice training 

leaders and noncommissioned officers. Several cou

publications were implemented this past year in 

develop a better understanding of the military justic

among commanders, staff officers, noncommissioned 

and enlisted men. The following new Department of t

pamphlets have been published: DA Pamphlet 27-18, D

for Special Court-Martial Convening Authorities, des

assist brigade and battalion commanders who have res

ities as special court-martial convening authorities; D

phlet 27-19, Legal Guide for Commanders, for use by 

grade officers and senior noncommissioned officers, p

in the processing of court-martial charge sheets and 

cial punishment; DA Pamphlet 27-20, Lessons in Milit

an instruction guide for Officer Candidate School and 

basic courses; and DA Pamphlet 27-4, Correctional 
newest lesson plan under review is entitled Com

with the Enlisted Man." The plan involves a tw

taught jointly by a company commander and a JA

counsel to company-sized classes. The class illustr

the commander and defense counsel play in the ad

of military justice. 

Several special projects in military justice were 

1972. A scenario was prepared for use in Article 15 

to be used as a guide for commanders and to estab

degree of uniformity in the Article 15 procedures. 

dures insure that an accused who accepts nonjud

ment will do so knowingly, intelligently, and with 

The accused will also be made aware of his righ

matters in extenuation, mitigation, and defense. 

of a program for the random selection of court m

initiated in order to develop a system which wi

appearance that the commander influences a cour

the selection of court members. A proposal for 

defense establishment was made. This proposal 

under serious study. Finally, extensive study of 

reform military sentencing procedures was unde

goal of this study is eventually to transfer sentenc

the military judge. Before sentencing power can be 

to the military judge, a comprehensive pre sente

system must be developed. Steps are presently u

accomplish this. 

Several Supreme Court cases impacted upon th

1972. Of these cases, Argersinger v. Hamlin, 407 U

and Morrissey v. Brewer, 408 U.S. 471 (1972), are 

importance. The Court in Argersinger held tha

knowing and intelligent waiver, no person may b

for any offense unless he was represented by couns

impacted upon the military service because ther

quirement for a defense counsel to represent an ac

a summary court-martial. Argersinger was implem

14 
required by Article 72 of the Code, in all cases in 

suspended sentence to confinement is to be vacated. 

The Report of the Task Force on the Adminis

Military Justice in the Armed Forces, released on 30 

. 1972, contained many proposals affecting militar

Major proposals included the following: to implement 

hearings during Article 15 proceedings, to abolish the 

court, to allow the military judge to suspend 

sntences, to create a separate establishment for def

sel, to provide for random selection of court membe

propose enactment of a specific legislative provisi

UCMJ to ban discrimination. A number of these rec

tions wiil require legislation. Others can be effected 

ment to Army regulations. Many of these recomm

were already under consideration before the Repo

leased, and some will be implemented next year. Fin

some recommendations, there is no, or little, serious s

the implementation of the recommendations is be

existing personnel and financial resources of the s

any case, the Report of the Task Force provides a use

of suggested changes to the military justice syst

significant, however, that the Task Force did not rec

major overhaul of the system. There are many exam

in the Report to support the conclusion that, by 

courts-martial are fairly operated. The focus of prim

Force concern was on the discretionary steps bef

martial proceedings actually begin. The Army is sc

this same area with the view to initiating necessary p

improvement, if possible, without the need for legisla

The Army's experience in Vietnam during the pe

1972 revealed significant weaknesses in military jus

tioning. Prompt, effective, and fair discipline was n

realized because of delays in imposing punishment 

the commission of the offense. Securing the right to 

trial for individual servicemen in some cases was 
jpwgv

The number of persons tried by courts-martial f

1972 (average, Army strength, 993,587) follows: 

Convicted Acquitted 

GeneraL ____________________________ _ 1,867 1

Special (W /BCD's) __________________ _ 931 

Special (W /0 BCD's) ________________ _ Summary___________________________ _ 14,308 

12,134 

1,30

7

Total_________________________ _ 29,240 2,34

Records of trial by--gEmeral and special (BCD) c

received by the Judge Advocate General during 

1972: 1 

For review under Article 66 (General) _________________________

For review under Article 66 (Specials W /BCD's). ______________

For examination under Article 69 _____________________________

Total________________________________________________

Workloads of the Army Court of Military Revie

same period: 

On Hand at the beginning of period __________________________ _ 

General Courts-MartiaL ________________________________ _ 

Special Courts-Martial (BCD)___________________________ _ 

Referred for review _________________________________________ _ 

General Courts-MartiaL ________________________________ _ 

Special Courts-MartiaL _________________________________ 

Total________________________________________________ 

Review____________________________________________________ 

General Courts-MartiaL _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ _ _ __ _ _ _ 

Special Courts-Martial (BCD)____________________________ 

Pending at close of period_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 

General Courts-MartiaL _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 

Special Courts-Martial (BCD)___ _ _ _ _ __ _ _ _ _ __ __ _ _ _ _ _ _ _ _ __ _ 

Total________________________________________________ 

16 
dgs aed, setece couted ____________________________

Findings affirmed, no sentence affirmed ___________________________

Findings affirmed, sentence reassessment or rehearing as to sentence 

ordered _____________________________________________________

FnC'i ~gs partially disapproved, sentence affirmed __________________

Findings partially disapproved, rehearing <.'rdered __________________

Findings & sentence affirmed in part, disapproved in part- __________

Findings & sentence disapproved, rehearing ordered ________________

Findings & sentence disapproved, charges dismissed ___ e ___ • ________

Returned to field for New SJA & CIA action ______________________

Order for psychiatric examination ________________________________

Motion for appropril'ote relief, denied _____________________________

Motion for reconsideration (re-opened case), di!:lmissed ______________

Proceedings abated, death of accused ______________________________

TotaL ________________________________________ " _______ . __

Of 3,156 accused whose cases were reviewed by the 

Military Review pursuant to Article 66 during the fi

1,990(63.1%)requested representation by appellate def

sel. 

* * * * * * 

The records in the cases of 819 accused were forwar

United States Court of Military Appeals pursuant to 

subdivisions of Article 67 (b) during FY 72. These c

26.0% of the number of these cases reviewed by the 

Military Review during the period. Of the mentioned 

804 were forwarded on petition of accused and 15 were 

by TJAG. 
pjy 

Lieutenant Colonel Leo K. O'Drudy, Jr., USMC; an 

jury selection under the Code by Major R. Rex Bro

JAGC; and an article on environmental responsibi

military lawyer by Captain John E. Kirchner, JAGC

Sixteen issues of the Judge Advocate Legal Se

published during 1972 in order to insure rapid dis

of recent military justice developments to judge a

the field. This pamphlet includes digests of all U.

Military Appeals opinions, all published Army Co

tary Review opinions, grants and certifications of re

Court of Military Appeals, and actions of The Judg

General under Article 69, UCMJ. 

During 1972 twelve issues of The Army Lawyer 

lished. This monthly journal provides timely infor

practical nature to practicing Army lawyers with 

military justice, claims, personnel, legal assistanc

ment, judicial, and litigation information pertin

military lawyer in the field. Other miscellaneous ite

military affairs opinions and selected civilian cou

were included in The Army Lawyer. 

The annual Judge Advocate General's Conference 

Charlottesville during the period 1-5 October 

hundred twenty-seven selected conferees attended

speakers were the Honorable Tom C. Clark, Associat

the United States Supreme Court (Retired); Dep

Defense General Counsel J. Fred Buzhardt; Attorn

Robert B. Morgan of North Carolina; and Deputy 

Secretary of Defense John A. Busterud. 

The School continued to plan and conduct res

advocate training. War crimes teams and procur

teams of the reserve Judge Advocate General's Serv

zation (JAGSO) detachments received intensive cla

team training at the School during two-week perio

and July. The remaining JAGSO detachments, co

20 
y 

The School conducted nonresident training for 

mately 1,500 personnel, of which some 600 were act

personnel, 680 national guardsmen and reservists, 

U.S. civilian personnel. The remainder are from o

armed services, ROTC, allied military, and allied 

personnel. Enrollment is spread over eight courses w

tional students taking miscellaneous subcourses with

enrolled in a specific course. Approximately 550 stu

enrolled in courses designed for officer personnel. O

these students are enrolled in the Judge Advocate Ca

course. About 400 enlisted personnel are enrolled in 

dent legal clerk courses and an additional 120 are en

the Senior NCO Course and Legal Administrative T

Course. 

PERSONNEL 

In 1972, the average strength ofthe Judge Advocate 

Corps was 1,638 officers, compared with an average 

during 1971. The curtailment of non-JAGC attorney

and defense counsel in special courts-martial contin

only 14 such attorneys being certified during 1972. N

attorneys were required in Vietnam, Korea, and Euro

commands are widespread geographically, and where 

transportation difficulties. An area jurisdiction con

initiated in Europe to utilize JAGC assets more effect

The retention of experienced officers remains a mo

problem. Even with a declining strength, the Corps s

53% shortage of field grade officers, the same shortag

More disturbing is the fact that the grades of lieutena

and major are respectively 55% and 63% short of au

strength. Since the retention rate of newly commissio

advocates is only 7%, the shortage of field grade off

probably continue. In addition to the poor retention pi

interest in JAGC commissions has continued to decli
However, the bill was not reported out of com

anticipated that similar legislation will be prop

Department of Defense for the 93d Congress. 

The Adjutant General's School, Fort Benjam

Indiana, commenced training of legal clerks 'in Ap

graduated 337 legal clerks in that year. The Jud

General's School also trained 20 legal paraprofes

USAREUR School at Oberammergau, Germany, 

legal clerks and 28 legal paraprofessionals for serv

REUR. These training programs permitted the fill

authorized legal clerk positions and increased the 

the administration of military justice. 

GEORGE S. PR

Major Genera

The Judge Advo

United St

22 
Following the practice in recent years of having 

Committee Report reach the Armed Services Com

Congress shortly after the convening of each new se

report, although embracing calendar year 1972, con

less otherwise indicated, statistical information cove

year 1972. 

COURT-MARTIAL WORKLOAD. a. There has b

crease in the total court-martial workload, as re

Exhibit A to this report. 

b. During fiscal year 1972, the Navy Court of Milita

received for review 718 general courts-martial and 1,9

courts-martial (total 2,711) as compared with 75

courts-martial and 2,707 special courts-martial (to

during fiscal year 1971. Of the 2,711 cases received by 

Court of Military Review during fiscal year 1972, 1,5

requested counsel (57 percent). 

SUPERVISION OF THE ADMINISTRATION 

TARY JUSTICE. Complying with the requirements 

6(a), Uniform Code of Military Justice, the Judge 

General, the Deputy Judge Advocate General, and the 

Judge Advocate General (Military Law) continue

commands within the United States, Europe, the Far 

Southeast Asia in the supervision of the adminis

military justice. During calendar year 1972, much 

been done in revitalizing the Article 6(a) inspections

LAW CENTER PROGRAM. The law center program

legal resources and facilities are centrally located in 

geographic areas from which surrounding comman

provided legal services when and where needed, ha

existence for approximately three-and-a-half years

center concept has demonstrated its value by accom

without undue difficulty the increased workload resu

the implementation of the Military Justice Act of 19

calendar year 1972, as a result of our drawdown o

Vietnam, the law center in Saigon, Vietnam, wa
Judiciary Activity stands at 19 general courtma

judges, a decrease of one from the manning level 

calendar year 1971. Three special court-martial m

are assigned to the Judiciary Activity by temporar

duty orders as part of a pilot project instituted 

1971. Two of the special court-martial militar

assigned to the Judiciary Branch Office at Norf

and the third is assigned to the Judiciary Branch 

Diego, California. The general court-martial mili

the Judiciary Activity and the special court-ma

judges assigned to the Judiciary Activity at Norf

and San Diego, California, tried 1,554 special c

(88% by military judge alone) during calendar 

compared with 1,262 special courts-martial in c

1971. 

c. The Navy hosted the 1972 Military Judicia

Newport, Rhode Island, on 6, 7, and 8 April, 19

sponsorship of the National Conference of S

Judges and the National College of the State Ju

seminar was attended by 67 military trial and app

The civilian staff included five civilian judges. D

visitors and speakers at the seminar numbered 11 

6 civilian. The latter included the ChiefJudge and 

United States Court of Military Appeals. Every 

vice was represented on the program. 

d. Military judges of the Navy-Marine Corps Jud

ity attended a variety of professional meetings 

during calendar year 1972 including the annual m

American Bar Association at San Francisco in 

One. Navy and two Marine Corps GCM judges 

four-week courses for trial judges at the National 

State Judiciary, Reno, Nevada. Five GCM judges 

annual staff judge advocate's conference at Wash

2-6 October 1972. Two SPCM military judges, o

one Marine Corps, attended a seminar on the A

24 
pursuant to Article 69, Uniform Code of Military 

provision which permits the Judge Advocate Gener

certain cases that have been finally reviewed under 

In calendar year 1972, 80 petitions for relief were r

the Judge Advocate General, as opposed to 87 petitio

in calendar year 1971. Of these 80 petitions, 9 

granted in whole or part. 

NEW-TRIAL PETITIONS. Eight petitions for new 

mitted pursuant to Article 73, Uniform Code of M

tice, have been received. Of these 8 petitions, 5 were 

to the U. S. Court of Military Appeals, where th

question were awaiting review. The remaining peti

denied. 

NAVAL JUSTICE SCHOOL. The Naval Justice S

tinued to offer intensive instruction in the princip

tary justice and related administrative matters. D

calendar year, the school presented complete form

struction to a total of 1,942 officers and enlisted pe

all the Armed Forces. A total of 333 Navy, Marine 

Coast Guard officers graduated from eight five-week 

courses. Seven five-week nonlawyer courses were pr

Newport, Rhode Island, and one was presented at 

dleton, California. A total of 203 lawyers of the 

Marine Corps completed six ten-week officer lawy

Two hundred twenty-four enlisted members of the A

and Coast Guard were trained to perform legal-clerk 

reporting duties for their respective services an

additional enlisted personnel received a two-week 

legal clerkship. (During the year, in anticipation of th

ments for the new legalman rating, the five-week lega

court reporting course was expanded to seven weeks.

ally, 1,166 officers of the Navy, Marine Corps, Co

Army and Air Force were given instruction spec

signed for senior officers. This latter instruction was

at the Naval Justice School, the Naval War College, a
lawyers received instruction at the annual East a

Reserve Seminars. 

ANNUAL STAFFJUDGE ADVOCATE'S CON

A conference of judge advocates from all maj

Marine Corps commands was held in Washington

October 1972. The conference heard addresses by 

ofthe Navy, the Deputy Under Secretary ofthe N

of Naval Operations, the Commandant of the Mar

General Counsel of the Department of Defen

Advocate General, and the Director, Judge Advo

Headquarters, Marine Corps. The conference 

special meetings of Marine Corps Staff Judge Ad

and type-commander judge advocates, law cen

pilot legal assistance program officers, and the 

mittee of GCM Military Judges on Rules for 

Orderlies. Special seminars were held on the 

affirmative claims, problems of the trial coun

facing the defense counsel, aspects of admin

charges, and recommendations for improving leg

the Navy and retention ofjunior judge advocates

the Assistant Judge Advocates General for Civi

Law made presentations to the conferees on matt

from those divisions under their cognizance, 

discussion was held on Reform to the Uniform Co

Justice featuring Nathanial Jones, Esq., Gener

the National Association for the Advancement o

ple, Norman L. Blumenfeld, Esq., Staff Assista

Bayh (D. Ind.), and Colonel Charles J. Keever, U

Director, Judge Advocate Division, Headquarters

Corps. 

b. This annual conference ofjudge advocates ha

a most valuable method of bringing the judge ad

field up to date on developments in military ju

vides a forum for discussion of problems encou

field. The 1972 conference emphasized participati

26 
PURSUANT TO ARTICLE 67(b), UCMJ. A numb

in the law have been clarified by use of the certificati

during the past year. Important U. S. Court of M

peals opinions were obtained on various subjects, inc

balance of judicial authority between the convening 

and the military judge, the power ofthe trial judge to 

situs of trial, what material must be included in a 

advocate's review, the grounds for terminating any 

client relationship, the type of argument a defense c

make when the accused desires a punitive discharg

admissibility of drug-analysis laboratory reports as 

ceptions to the hearsay rule. Eleven such Navy Cou

tary Review decisions were certified by the Judge 

General to the U. S. Court of Military Appeals for 

fiscal year 1972. 

CIVIL LITIGATION. During calendar year 1972, 

Advocate General provided assistance to the Justic

ment in several civil-litigation cases that had potent

on the military-justice system. Some of the cases 

involved are set forth below: 

a. Flemings v. Warner-issue involved is the r

application of the decision in O'Callahan v. Parker. 

was argued before the U. S. Supreme Court on 4 

1972. 

b. Augenblick v. United States-issues involved a

retroactive application of O'Callahan; (2) the consti

of Article 134, UCMJ: and (3) the finality of rev

Article 76, UCMJ. The case was argued before the U. 

Claims on 4 May 1972. 

c. Brown v. United States-presents the issue of th

tive application of U.S. v. Greenwell, 19 USCMA 46

62 (1970). The case is currently pending in the U. 

Court for the Eastern District of Pennsylvania. Cro

for summary judgment are to be filed on 9 March 19
conscientious objector (CO) must complete trial b

tial for refusal to obey an order to perform n

hospital duties prior to being discharged as a CO, 

of a CO claimant to obey such orders during the p

claim was erroneously denied· by the Secretary

District Court for the Eastern District of P

granted petitioner's writ of habeas corpus and 

immediate release from the service. The case is 

appeal to the U. S. Court of Appeals for the Third 

f. Daigle and Crosby v. Warner-concerns t

whether right to counsel as extended in Argersing

is applicable to the summary court-martial. The U

Court for Hawaii held for plaintiff in extending 

lawyer counsel at trial to those sentenced to con

summary court-martial. The case is currently on 

U. S. Court of Appeals for the Ninth Circuit. 

g. In re DeSersa-involved the issue of probable 

arrest by an FBI agent of a marine who was ab

leave. The case was decided in favor of the Marine 

U. S. District Court for the District of Utah. 

h. Devlin v. United States-involved the issue o

application of O'Callahan v. Parker. The U. S. D

for the Eastern District of North Carolina held O'

to apply retroactively. 

i. Goodman v. Secretary of the Navy-involved 

the necessity of exhausting the military remed

coram nobis to the U. S. Court of Military App

seeking habeas corpus relief in Federal district co

District Court for the Middle District of Pennsylv

plaintiff to exhaust the remedy of coram nobis 

Court of Military Appeals. 

j. Messina v. Guinn-presented the issues of (1) c

jurisdiction over a serviceman whose enlistme

involvuntarily extended; (2) exhaustion of milit

prior to filing a habeas corpus petition in Fed

28 
No appeal was taken in the case after the adverse de

Army received in Parisi v. Davidson. 

1. United States ex rel Will v. Laird-involves th

whether a conscientious objector (CO) whose claim 

improperly denied by the Chief of Naval Personnel m

plete a pending trial by court-martial on charges un

his CO claim, unauthorized absence, prior to being 

from the service. The case is currently pending in 

District Court for the Northern District of Illinois. 

m. Chenoweth v. Warner-involves the issue of the 

pretrial confinement imposed upon the accused who i

with violating Article 108, UCMJ, and 18 USC sec. 2

tage). The U. S. District Court for the Northern D

California, on 20 November 1972, remanded the case 

authorities to redetermine the propriety of furthe

confinement in line with Articles 10 and 13, UCMJ. 

THE SECRETARY OF DEFENSE TASK FORCE 

ADMINISTRATION OF MILITARY JUSTICE 

ARMED FORCES. The Judge Advocate General w

sively involved as a member of the Secretary of Def

Force on the Administration of Military Justice in t

Forces. Although the Task Force was primarily conce

problems of racial and ethnic discrimination, inq

made by that group into all facets of military justice

on the findings of the Task Force was submitted to t

tary of Defense on 30 November 1972. It is expected t

may result from this report many far-reaching chan

could develop into major programs for the Judge 

General. 

MERLIN H. STAR

Rear Admiral, U

The Judge Advocat

United State
Reviewed in the field _________________________________ _ 

Total _____________________________________________ _ 

Summary courts-martial: 

Received for review under Article 65c ___________________ _ 

Reviewed in the field _________________________________ _ 

Total______________________________________________ 

Total all courts-martial ______________________________ 

Navy Court of Military Rev:ew act'ons: 

On hand for review end last fiscal year__________________ _ 

Received for review during fiscal year __________________ _ 

Totalonhand _____________________________________ _ 

Reviewed during fiscal yeaL __________________________ _ 

Pending review end current fiscal year__________________ _ 

Total _____________________________________________ _ 

Findings modified or set aside by Navy: 

Court of Military Rev'ew during fiscal year _____________ _ 

Requests for appellate counsel befcre NCMR________________ _ 

U-S. Court of Military Appeals actions: 

Petitions forwarded to USCMA ________________________ _ 

Cases certified to USCMA by JAG _____________________ _ 

Total cases docketed with USCMA ___________________ _ 

Petitions granted by USCMA _________________________ _ 

Petitions denied by USCMA __________________________ _ 

Total petitions acted upon by USCMA _______________ _ 

30 
as a member of the DOD Task Force on the Adminis

Military Justice in the Armed Forces. The report of 

Force was completed and forwarded to Secretary La

November 1972. General Vague and I visited legal offi

United States and overseas as required by Article 6(

We also attended and participated in various bar as

meetings, and addressed numerous civic, professi

military organizations. The 1972 Major Air Comma

Advocate Conference was held at Bolling Air Force 

the Forrestal Building, Washington, D.C., in October 

pilot project for the Air 'Force Trial Judiciary Div

cussed in the 1971 and 1972 Reports was concluded 

uated. As the result of the Pilot Project, a program wa

and implemented providing for full time trial and 

counsel in trials by general courts-martial and full tim

court-martial military judges. As a result of this imp

tion, all trial and defense counsel for general court

and all special court-martial military judges for all s

throughout the Air Force are now assigned to T

Advocate General in the same manner as are milita

for general courts-martial pursuant to UCMJ, Article 

2. a. The number of records of trials received in the 

The Judge Advocate General, for review pursuant to 

and for examination pursuant to Article 69, during f

1972, is shown in the following table: 

Total number records received____________________________________

For review under Article 66_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ __ _ _ _ _ 

General court-martial records____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ _ _ _ _ __ _ _ _ ___ _ _ __ 

Special court-martial records_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 

Examined under Article 69_ __ __ __ __ __ __ __ ___ ___ __ __ __ __ __ __ __ ____

The Court of Military Review modified the findin

sentence in 36 cases. 
Review. 

d. The following table shows the number of cases 

the United States Court of Military Appeals pur

three subdivisions of Article 67(b); and the numbe

granted during the period: 

Cases reviewed and dispatched by Court of Review_ _ _ _ _ _ _ _ _ _ _ _ 

Number of cases forwarded to USCMA__ ____ __ __ _ _ ___ ___ __ _ _ __ 

Cases petitioned_ _ _ _ _ _ _ _ __ __ _ _ __ __ _ _ __ ____ ___ _____ __ ____ __ __ 

Cases certified_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 

Percent total forwarded of total cases reviewed_ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 

Petitions granted_____ __ _ _ ___ __ ___ ____ ___ __ __ __ _ _ ____ __ _ _ ____

Percent grants of total petitioned _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 

Percent petitions granted of total cases reviewed by Court of Revi

e. During the fiscal year, the following numbe

martial were convened in the Air Force: 

General courts-martiaL______________________________________

Special courts-mHtiaL_______________________________________

Summary courts-martiaL ____________________________________

Total________________________________________________

3. Reportable Article 15 actions, fiscal year 1972

Number 

of 

eaaes 

Total cases ______________________________________ _ 34,7

Officers _____________________________________ _ 

1

Airmen_____________________________________ _ 34,5

Punishments imposed: Officers _____________________________________ _ 2

Airmen _____________________________________ _ 53,6

Restrictions (over 14 days): Officers _____________________________________ _ 

Airmen _____________________________________ _ 3,5

Quarters arrest/ correctional custody: Officers _____________________________________ _ 

Airmen _____________________________________ _ 3,1

Extra duties (over 14 days): Airmen _____________________________________ _ 1,4

32 
_____________________________________ _ 

390 

Mitigating actions: 

Appeals taken _______________________________ _ Officers _____________________________________ _ 

Airmen _____________________________________ _ 

Appeals denied ___ : __________________________ _ Officers_____________________________________ _ 

Airmen _____________________________________ _ 

Suspension of PunishmenL ____ . _______________ _ Officers_____________________________________ _ 

Airmen _____________________________________ _ 

Other Action ________________________________ _ Officers_____________________________________ _ 

Airmen _____________________________________ _ 

1,867 

15 

1,852 

1,579 

14 

1,565 

15,917 

3 

15,914 

3,204 

o 

3,204 

**Of total cases (34,712).


-or appeals taken (1,864). 


4. A substantial amount of activity concerning re

and manuals related to military justice occurred in 1

and revised editions of AFM 111-1, Military Justic

AFM 111-6, Procedure Guides for Courts-Martial, AF

Use of U.S. Magistrates for Trial of Minor Offenses C

by Civilians, AFR 111-7, Explanation of Articles of t

(Article 137),AFR 111-9, Nonjudicial Punishment Un

cle 15, UCMJ, and AFR 111-17, Release of Informati

ing to Criminal Proceedings, were published and distr

the field in 1972. In addition, Change 1 to AFR 111-9 

published and distributed to the field. 

5. Volume XIV of the USAF JAG Law Review was 

and distributed during 1972. Each of the four issues 

ing this volume were special issues sponsored by 

commands and agencies. Consequently, only issue 

three, sponsored by the Air Force Communications 

contains an article devoted to a military justice topic. 

of this article is "Jurisdiction: Minus a Uniform." 

6. During calendar year 1972, the Judge Advocate 

Department provided continuing legal and general e
national Law, one in Labor Law and one in Tax L

of the continually increasing importance of the 

law field, an internship for future procurement law

at each of the five Air Material Areas (AMA). F

judge advocates entering active duty for the fi

assigned to the AMA Procurement Office for one 

being regularly assigned to judge advocate duties 

of the AMA Staff Judge Advocate. This program i

to the regular and continuing two week Procu

course held at Wright-Patterson Air Force Base, 

five judge advocates completed this latter course 

In 1973, this course will increase to 105 officers for 

order to provide more procurement training. AF 

cate officers also attend the Logistics Officer Cour

by the Army JAG School at Charlottesville, VA. 

attended the basic course and five the advanced cou

25 officers attended the one week course for prose

neys and 25 attended the equal length course 

attorneys held at Northwestern University. Four 

tary judges were enrolled in the course for judges 

the National College of State Trial Judges. This i

course held at the University of Nevada in Reno

Advocates were also in attendance at the vari

schools during 1972. 

During that year three lawyers attended the A

and Staff College and one the Air War College. Fo

will be five attending the former and three the 

officers attended the Armed Forces Staff College. W

a quota of one officer per odd year to attend th

College of the Armed Forces and one officer per 

attend the National War College. Air Force lawyer

Squadron Officers School, but their assignment 

command basis and not by The Judge Advocate G

ever, attendance at this course is encouraged. A 

newly appointed staff judge advocates was establi

34 
leave program to obtain their legal education. It is an

that upon completion of law school these students w

active duty as judge advocates. Therefore, during the 

vacation period, they may perform active duty in an 

legal office as "legal interns." In addition to those as

Base Legal Offices, nine were assigned to the various 

of the Office ofThe Judge Advocate General at Hq USA

significant step toward the improvement of adminis

our legal offices was the establishment during 1971, o

school for legal technicians at Keesler Air Force Ba

The first class of this specialized course for enlisted 

entering the legal field began in January 1972. In ad

these programs, Air Force Judge Advocates and Lega

cians attended other various short courses pertainin

conducted by civilian colleges and universities and th

forces. 

7. The Air Force JAG Reporter was published month

this year. This publication contains digests of the la

ions of the Court of Military Appeals and the Courts o

Review (formerly Boards of Review). These digests ar

in the Reporter with descriptive-word index lines to 

filing. Thus, they not only serve as an advance repo

latest developments in the law, but also as a research t

interim between release of the opinion and its full-tex

tion in permanently bound volumes. The Reporter 

tains other opinions, notices, and directions for guidan

judge advocates. 

8. On June 30, 1972, there were 1,097 Judge Advo

duty. Of these, 553 were members of the Regular Air F

were Career Reserve officers (of this number, 338 enter

duty in Career Reserve status and have a 4-year ac

service commitment), and 118 were Reserve officers w

lished dates of separation. The Regular officer stre

creased by 12 and the total officer strength decrease

between June 30, 1971 and June 30, 1972. 
36 
The following is the annual report of the General 

the Department of Transportation submitted pursua

cle 67(g) of the Uniform Code of Military Justic

otherwise noted the figures given are for the fiscal y

ning July 1, 1971, and ending June 30, 1972. 

The table below shows the number of court-mart

received and filed at Coast Guard Headquarters d

fiscal year and the four preceding years. 

1972 1971 1970 

General courts-martiaL ____________ 6 2 2 

Special courts-martiaL _____________ 167 129 76 

Summary courts-martiaL __________ 348 287 174 

TotaL_____________________ 511 418 252 

Both special and summary courts-martial showed 

increase during the year. Nearly all of the increa

attributed to an upsurge in the offenses of absenc

authority, desertion, missing movement, and mar

controlled drug use, possession, and sale. 

In spite of the increase, all special courts-martia

yers for defense counsel and non-lawyer trial counsel 

only 15 times. A military judge was assigned in all of 

As was noted in the last report submitted, a full-tim

for special courts-martial has not been established in 

Guard. The needs for military judges necessary 

courts-martial are met by use of general court-mar

when available and by the use of military lawyers a

other full-time duties. Control over the detail of 

centrally exercised, and nearly all requirements 

filled in timely fashion. On occasion, it has been ne

ask for the detail of military judges from the oth

Forces. These judges were used in 15 of the 167 trial

the cases, trial was by military judge with memb
sentences which did not include confinement as 

punishment imposed. This was true in over one-ha

79 out of 147-in which there was a convictio

confinement of six months was imposed as a pun

11 times, none when trial was by military judge a

Of the 147 cases with approved sentences, 88 se

affirmed on review without modification. Fifty-ni

were mitigated in some form. In 91 cases, there 

pleas to all of the charges and specifications. Tw

these involved pretrial agreements. 

The following table shows the distribution of th

cations tried in the 167 special courts-martial: 

AWOL or desertion_ _ _ _ ___ ____________ ______ ___ __ ___ __ __ ____ 

Missing ship movemenL_____________________________________

Marihuana offenses____ ________ ____ ___ ___________ ___________

Offenses involving controlled drugs____ ______ __ ____ ____ _______ 

Willful disobedience or disrespecL____________________________

~ault____________________________________________________

Violation of order or regulation _ _ _ ___________________________

False representation or official statemenL_ ____________________

Larceny or wrongful appropriation____________________________

Breaking restriction _ _ ______________________________________

Offenses against Coast Guard property _ _ _ _ ___________________

Provoking words or threats____ ___ ____________ ____ __ __ ____ __ _

Neglect of duty___ __ ________ ________ __ __ _____ ___ ____ ____ __ __

Sleeping on post_ _ _ ________________________________________

Otheroffenses______________________________________________

The Coast Guard Court of Military Review h

docketed with it during the fiscal year. Of the nin

w€re decided during the fiscal year, six were affir

modification and the findings or sentence were 

three cases. 

The Court Rules of Practice and Procedure for 

General and Special Courts-Martial were publish

1972. The Court Rules were designed to improve t

and uniformity of trials and to state in a formal m

38 
Also during 1972, Rear Admiral William L. Mor

Chief Counsel of the Coast Guard, made inspection 

several district legal offices. In addition, members o

participated in extensive formal inspections, unde

gram of the Inspector General, of several district leg

Fourteen Coast Guard officers commissioned for acti

lawyers were graduated during the year from the ba

at the Judge Advocate General's School, U. S. Army, C

ville, Virginia. 

JOHN W. BARNU

General Counse

Department of Tran