and 


THE JUDGE ADVOCATES GENE

of the 


ARMED FORCES 


and the 


GENERAL COUNSEL 


of the 


DEPARTMENT OF THE TREAS

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTIC

For the Period 


January 1, 1963, to December 31, 196
of Ihe 


SENATE AND OF THE 


HOUSE OF REPRESENTATIVES 


and 10 Ihe 


SECRETARY OF DEFENSE 


AND SECRETARY OF THE TREASUR

and Ihe 


SECRETARIES OF THE DEPARTMENTS OF TH

ARMY, NAVY, AND AIR FORCE 


PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 


For Ihe Period 


January I, 1963, 10 December 31, 1963 

Contents 

JOINT REPORT OF THE UNITED STATES COURT OF MILITARY 

AND THE JUDGE ADVOCATES GENERAL OF THE ARME

AND THE GENERAL COUNSEL OF THE DEPARTMENT 

TREASURY 

REPORT OF THE UNITED STATES COURT OF MILITARY APPE

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 F

REPORT OF THE GENERAL COUNSel OF THE DEPARTMEN

TREASURY (UNITED STATES COAST GUARD) 
Joint Report 


of the 


UNITED STATES COURT OF MILITARY APPE

and 

THE JUDGE ADVOCATES GENERAL 


OF THE ARMED FORCES 


and 

THE GENERAL COUNSEL OF THE 

DEPARTMENT OF THE TREASURY 

January 1, 1963, to December 31, 1963 

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

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 of 

Appeals, The Judge Advocates General of the Army, N

Air Force, and the General Counsel of the Department of t

ury, hereinafter referred to as the Code Committee, have 

conferred at the call of the Chief Judge several times d

period of this report. These conferences included a full c

tion of legislative amendments to the Uniform Code of Mil

tice consistent with the policy and purpose of this Commi

No legislation directly relating to military justice wa

during the 1st session of the 88th Congress. The new a

pertaining to commanders' nonjudicial punishment powers

as Public Law 87-648, became effective on February 1, 19

corresponding changes in the Manual for Courts-Martia

States, 1951, which were promulgated by Executive Order N

January 29, 1963, 28 Fed. Reg. 945. Although in effect 

1 year, the new article 15 has already reduced the court-ma

in the Armed Forces substantially. Most minor offenses 

appropriately punished nonjudicially without imposing th

of criminal convictions. 

Following hearings before the Subcommittee on Cons

Rights of the Committee on the Judiciary, U.S. Senate, the H

Sam J. Ervin, chairman of the subcommittee, on Augus

introduced in the Senate 18 bills, their stated purpose bein

tect and enhance the constitutional rights of military person

September 25, 1963, the Honorable Victor Wickersham in

identical bills in the House of Representatives, and other 

and Representatives have joined in the sponsorship of these p

Each bill was referred to the appropriate committee of the 

but no hearings were held during the period of this report. 

of these proposals, if enacted, would affect the administ

justice in the Armed Forces. 
period-the Committee does not deem it appropriate to di

several bills in detail in this report. 

Recognizing that the press of its other business has for so

prevented the Congress from considering any all-inclusive c

the military justice system, the Code Committee has from tim

recommended enactment of short bills, each dealing with p

aspects of the Uniform Code of Military Justice appearing to 

urgently in need of revision. Two such bills were enacted by 

Congress as Public Law 87-385 and Public Law 87-648 dea

worthless check offenses and nonjudicial punishment, resp

The Code Committee continues to recommend legislation em

the substance of the bills denominated "B," "D," and "F," 

in and attached to our report for the year 1962. 

The "F" bill, which was discussed in the last previous re

mains unchanged as 'a legislative recommendation. If en

would permit convening authorities to order the confinement 

feiture portions of certain sentences into execution upon a

At present, many prisoners complete the service of their term 

finement before their cases have been finally reviewed. The 

tion required in treatment of such a prisoner from that ac

sentenced prisoner unduly complicates the administration of 

ment facilities and has, on occasion, created complex admin

problems. This bill would eliminate this source of difficulty

acting to the substantial detriment of the prisoners involv

bill would also clarify what lesser punishments are included w

death sentence, and would eliminate a related anomaly of th

law by permitting the imprisonment and forfeiture of pay 

in a death sentence to be made effective when the sentence is a

by the convening authority. 

In addition, the Code Committee is of the opinion that t

areas of the Uniform Code similarly require legislative co

First, neither the Constitution nor the Uniform Code requ

counsel before a special court-martial be a qualified lawyer. A

a record of trial by special court-martial in which a bad-con

2 
proposals and our recommendations, we further recommend 

proposal for qualified counsel before special courts-martia

hined with the "B" and "D" bills in a single bill here denom

"G" bill. In addition to the proposal for counsel, the "G

corporates the provisions of the "B" bill for single-office

and special courts-martial, and increased authority of the l

and of the president of a special court-martial. It provides 

with necessary safeguards and procedural changes, whereby a

person could waive hearing before court members and be 

the law officer alone, comparable to a trial without a jury i

courts. It also gives the law officer authority to rule wit

on certain matters of law on which legally untrained mem

now reverse him. From the the "D" bill, the "G" bill inc

the provisions for pretrial sessions by a law officer, before 

bers are assembled, to consider and dispose of interlocutory 

and other procedural matters. This is similar to provisio

Federal Rules of Criminal Procedure. Linked with this 

nical provisions to clarify the status of the law officer in t

ceedings and related administrative matters. 

The "G" bill is set out as exhibit B with an accompany

ment of its purpose and principal features. The Code C

is of the opinion that the "G" bill, in addition to its intrin

may properly be adopted as a single substitute for several of 

vidual bills relating to military justice matters included in t

vVickersham proposals. 

Judge Ferguson continues to have reservations, as detail

report for the year 1962, concerning the desirability of som

of the foregoing legislation. 

The second additional area in which we recommend am

of the Uniform Code relates to expanded authority for 

relief in cases in which appellate review has become final. 

tached "U" bill (exhibit C) would make two desirable ch

the remedies available to an accused in these circumstanc

would extend the time within which a new trial may be 
bills and their respective sectional analyses are appended 

A, B, and C. 

The sectional reports of the Court and of the individu

outline the volume of court-martial cases subject to appel

during the reporting period. Exhibit D is attached to r

the number of court-martial cases of all types tried thro

world, the number of such cases which are reviewed by 

Review, and the number ultimately reviewed by the Un

Court of Military Appeals. 

Respectfully submitted, 

ROBERT E. QmNN

Ohi

HOMER FERGUSON

PAUL J. KILDAY, 

CHARLES L. DEC

The Judge Advocate G

United State

WILLIAM C. MOTT

The JudgeAdvocate G

United Stat

ALBERT M. KUHFE

The Judge Advocate G

United State8 A

G. n'ANnELOT BEL

General O

Department of the T

4 
EXHIBIT A 


court-martial sentences. 

1 Be it enacted by the Senate and House of Represen

2 of the United States of America in Oongress assemb

3 chapter 47 (Uniform Code of Military Justice) of tit

4 United States Code, is amended as follows: 

5 (1) Subchapter VIII is amended by striking out 

6 following item in the analysis: 

7 "856. 56. Maximum limits." 

8 and inserting the following item in place thereof: 

9 "856. 56. Maximum limits; sentences included in 

death sentence." 

10 (2) Section 856 (article 56) is amended to read as 

11 follows: 

12 "§ 856. Art. 56. lIfaximum limits; sentences 

included in death sentence 

13 "(a) The punishment which a court-martial may 

14 direct for an offense may not exceed such limits as 

15 the President may prescribe for that offense. 

16 "(b) A sentence to death includes dishonorable 

17 discharge or dismissal, forfeiture of all pay and 

18 allowances, and life imprisonment." 

19 (3) Section 857 (article 57) is amended to read as 

20 follows: 
12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

executed." 

(4) Section 871 (article 71) is amended­

(A) by striking out the first sentence in subsection (a) and inserting the following in place 

thereof: 

"A court-martial sentence involving a general 

or flag officer and that part of a court-martial 

sentence providing for death may not be execut

until approved by the President."; 

(B) by striking out the first two sentences in 

subsection (b) and inserting the following in plac

thereof: 

"That part of a sentence providing for the dismissal, unsuspended, of a commissioned officer 

8 
13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

gy 

y 

a board of review and, in cases reviewed by it, 

the Court of Military Appeals." ; and 

(D) by amending subsection (d) to read as 


follows: 


"(d) All other court-martial sentences and 

parts thereof, unless suspended, may be ordered 

executed by the convening authority when approve

by him. The convening authority may suspend 

execution of any sentence or part thereof, except 

a death sentence." 

SEc.2. This Act becomes effective on the first day of 

the fifth month following the month in which it is enac

court-martial sentences. 

Section 1 (1) amends subchapter VIII to amplify the a

reflect the amendment of article 56 proposed in section 1 (2

Section 1 (2) amends article 56 by specifying in subse

thereof that a sentence to death includes a dishonorable dis

dismissal, total forfeitures, and life imprisonment. This am

will allow forfeitures to be executed in accordance with the am

to article 71 proposed in section 1 (4), provide specific aut

confinement pending appellate review in death cases, and ma

that a death sentence may be mitigated to dishonorable 

or dismissal, and life imprisonment or a lesser term of co

(see United State8 v. RUIJ80, 11 USC~fA 352, 29 CMIt 168). 

Section 1 (3) amends article 57 to delete the reference to 

forfeitures to payor allowances becoming due on or afte

the sentence is approved by the convening authority in case

the approveu sentence incluues confinement not suspendeu

the amendment to article 71 proposeu in section 1 (4), this 

will no longer be necessary, for the convening authority w

to order the forfeiture portion of a sentence (not involving 

or flag officer) into execution when approve(] by him. A n

sion has been auded, however, to indicate that forfeitures 

extend to payor allowances accrued before the date the fo

ordered executed. 

Section 1 (4) amends article 71(a) to provide that appro

President is require(] only with respect to execution of 

penalty portion of a court-martial sentence and executio

court-martial sentence involving a general or flag officer. 

The section also amends article 71 (b) to provide that 

by the Secretary concerned, or certain officials designated 

is required in officer cases only with respect to execution of 

of the sentence providing for an unsuspended dismissal. 

the other portions of the sentence are not transmitted to hi

721-741-64-2 
between prisoners in disciplinary barracks and other p

finement based upon whether or not their sentences, i

confinement portion thereof, have been ordered execute

of sentences with which these amendments deal cannot no

executed either in whole or, with the exception of applic

feitures, in part until after lengthy appellate review. 

Article 71 (d) is amended to conform that article w

amendments. 

Section !3 provides that these amendments become eff

first day of the fifth month following the month in whi

12 
EXHIBIT B 


certain special court-martial proceedings by counsel h

qualifications of defense counsel detailed for general co

tial, providing for certain pretrial proceedings and o

cedural changes, and for other purposes. 

1 Be it enacted by the Senate and House of Representati

2 United States of Ameriea in Oongress assembled, That c

(Uniform 

3 Code of Military Justice) of title 10, United States 

amended as 

4 follows: 

5 (1) Section 801(10) (article 1(10» is amended by 

6 the words "or special" after the word "general". 

7 (2) Section 816 (article 16) is amended to read a

8 "§ 816. Art.16. Oourts-martial classified 

9 "The three kinds of courts-martial in each of the 

10 armed forces are11 "(1) general courts-martial, consisting of12 " (A) a law officer and not less than five 

13 members; or 

14 " (B ) only a law officer, if before the court 

15 is assembled the accused, knowing the identity o

16 the law officer and after consultation with couns

17 requests in writing a court composed only of a la

18 officer and the convening authority consents the

19 "(2) special courts-martial, consisting of20 " (A) not less than three members; or 
15 

20 

25 

12 ( 4) Section 819 (article 19) is amended by strik

13 last sentence and inserting the following sentenc

thereof: 

14 "A bad-conduct discharge may not be adjudge

complete 

record of the proceedings and testimony has been 

the 

16 accused was represented or afforded the opport

17 represented at the trial by counsel having the qu

18 prescribed under section 827 (b) of this title (artic

19 (5) Section 825 (c)(1) (article 25 (c) (1)) is ame

(A) by striking out the words "before the co

21 the court," in the first sentence and inserting 

22 "before the conclusion of a session called by the 

23 under section 839 (a) of this title (article 39 (a

24 trial or, in the absence of such a session, befor

is assembled for the trial of the accused," in pla

26 and 

27 (B) by striking out the word "convened" 

28 sentence and inserting the word "assembled" in pl

29 (6) Subchapter V is amended by striking out th

16 
10 

15 

20 

25 

cerned, the authority convening a special court

11 may, detail as law officer thereof a commissione

12 who is a member of the bar of a Federal court o

13 highest court of a State and who is certified to be q

14 for that duty by the Judge Advocate General of th

force 

of which he isa member. A commissioned office

certi16 fied to be qualified for duty as a law officer of a 

17 court-martial is also qualified for duty as a law o

18 a single-officer or other special court-martia1. A 

sioned 

19 officer who is certified to be qualified for duty 'a

officer of a special court-martial is qualified for d

21 law officer of any kind of special court-martial. H

no 

22 person may act as a law officer of a single-officer 

23 court-martial unless he is specially certified to be q

24 for 'that duty. No person is eligible to act as law o

a case if he is the accuser or a witness for the prosec

26 has acted as investigating officer or as counsel in t

case." 
10 

15 

20 

25 

9 general court-martial, after the word 

court-ma

first sentence of subsection (b); and by amend

11 sentence of subsection (b) to read as follows: 

12 "The trial may proceed with the new members p

13 the recorded evidence previously introduced 

14 members of the court has been read to the c

presence of the law officer, the accused, and 

16 (C) by inserting the words ", other than a 

17 special court-martial," after the word "court-ma

18 first sentence of subsection (c); and by amend

19 sentence of subsection (c) to read as follows: 

"The trial shall proceed with the new memb

21 as if no evidence had previously been introd

22 trial, unless a verbatim record of the evidenc

23 introduced before the members of the court or a 

24 thereof is read to the court in the presence 

officer,if any, the accused and counsel."; and 

18 
15 

20 

25 

p, 

13 and counsel." 

14 (10) Section 835 (article 35) is amended by striking 

second sentence and inserting the following in place there

16 "In time of peace no person may, against his objec

17 brought to trial, or be required to participate by him

18 counsel in a session called by the law officer under sectio

19 839 (a) of this title (article 39 (a) ), in a general cou

martial case within a period of five days after the 

21 of charges upon him, or in a special court-martial case 

22 a period of three days after the service of charges upo

23 (11) Section 838 (b) (article 38 (b» is amended by s

out 

24 the words "president of the court" in the last senten

inserting 

the words "law officer or by the president of a court-

without 

26 a law officer" in place thereof. 
15 

20 

25 

11 not guilty; 

12 "(2) hearing and ruling upon any matt

13 be ruled upon by the law officer under this 

14 whether or not the matter is appropriate 

sideration or decision by the members of the 

16 "(3) if permitted by regulations of the Se

17 concerned, holding the arraignment and recei

18 pleas of the accused; and 

19 "(4) performing any other procedural fu

may be performed by the law officer unde

21 or under rules prescribed pursuant to secti

22 title (article 36) and which does not requir

23 of the members of the court. 

24 These proceedings shall be conducted in the p

accused, the defense counsel, and the trial cou

26 be made a part of the record. 

20 
12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

a law officer has been detailed to the court, the law 

(13) Section 840 (article 40) is amended to read as 

§ 840. Art. 40. Oontinuances 

"The law officer or a court-martial without a law 

officer may, for reasonable cause, grant a continua

to any party for such time, and as often, as may app

to be just." 

(14) Section 841(a) (article 41(a» is amended

(A) by amending the first sentence to read as fo

"The law officer and members of a general or speci

court-martial may be challenged by the accused 

trial counsel for cause stated to the court."; and 

(B) by striking out the word "court" in the secon

sentence and inserting the words "law officer or, if n

the court" in place thereof. 
15 

20 

25 

11 regulations of the Secretary concerned. These r

12 may provide that an oath to perform faithfully 

13 law officer, trial counsel, assistant trial couns

14 counsel, or assistant defense counsel may be tak

time by any judge advocate, law specialist, or ot

16 certified to be qualified or competent for the du

17 such an oath is taken it need not again be taken 

18 the judge advocate, law specialist, or other pers

19 detailed to that duty." 

(16) Section 845 (article 45) is amended21 (A) by striking out the words "arraigned bef

22 court-martial" in subsection (a) and inserting 

23 "after arraigrunent" in place thereof; and 

24 (B) by amending subsection (b) to read as fol

"(b) A plea of guilty by the accused may n

26 received to any charge or specification alleging an 

22 
15 

20 

25 

after 

13 the word "unless" the words "the law officer or court-

without 

14 a law officer hearing the case or, if the case is not being h

(18) Section 851 (article 51) is amended16 (A) by amending the first sentence ofsubsection 

17 (a) to read as follows: 

18 "Voting by members of a general or special court-

1() on the findings and on the sentence, and by memb

court-martial without a law officer upon questions 

21 challenge, shall be by secret written ballot."; 

22 (B) by amending the first two sentences of subsect

23 to read as follows: 

24 "The law officer and, except for questions of challe

the president of a court-martial without a law offic

26 shall rule upon all questions of law and all interl
13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

president of a court-martial without a law officer s

presence of the accused and counsel, instruct the m

the court as to the elements of the offense and cha

in place thereof; and 

(D) by adding the following new subsection 

thereof: 

"(d) Subsections (a), (b), and (c) ofthis sec

do not apply to a single-officer court-martial. A

officer who is detailed as a single-officer courtmartial shall determine all questions of law and f

during the proceedings and, if the accused is con

adjudge an appropriate sentence." 

(19) Section 852 (article 52) is amended­

(A) by inserting the words "as provided in sect

24 
12 record of the proceedings in each case brought befo

13 and the record shall be authenticated by the signatu

14 the law officer. If the record cannot be authenticate

15 the law officer by reason of his death, disability, or 

16 absence, it shall be authenticated by the signature o

17 trial counselor a member. If the proceedings have 

18 in an acquittal of all charges and specifications or, 

19 affecting a general or flag officer, in a sentence not 

20 ing discharge and not in excess of that which may othe

21 adjudged by a special court-martial, the record shall 

22 such matters as may be prescribed by regulations of th

dent." 

23 SEC. 2. This Act becomes effective on the first day of th

month 

24 following the month in which it is enacted. 

Uted States Code, by ceatg sgeocegeea

a

courts-martial, providing for law officers on specia

martial, affording accused persons an opportunity to 

sented in certain special court-martial proceedings by 

having the qualifications of defense counsel detailed fo

courts-martial, providing for certain pretrial proceed

other procedural changes, and for other purposes. 

Section 1 (1) amends article 1 (10), the definition of a "law 

to include an official of a special court-martial detailed in ac

with article 26 as well as such an official of a general cour

This reflects the amendment of article 16 (section 1(2» whic

special courts-martial consisting of a law officer and membe

a law officer. 

Section 1 (93) amends article 16 to provide that a general o

court-martial shall consist of only a law officer if the accuse

the court is convened, so requests in writing and the convenin

ity consents thereto. However, before he makes such a req

accused is entitled to know the identity of the law officer an

the advice of counsel. Although such a procedure has no

fore been available in any of the armed forces, an analogou

of disposition of criminal cases is provided in the Federal 

Rule 23 of the Federal Rules of Criminal Procedure, wh

vides that: 

"Cases required to be tried by a jury shall be so tried unless the d

waives a jury trial in writing with the approval of the court and 

sent of the Government." 

The adoption of such a procedure will result in an appreciab

tion in both time and manpower normally expended in 

courts-martial. The vast majority of cases in which an accus

guilty would probably be tried by a single-officer court. It 

noted that the convening authority is not required to es

single-officer court-martial but may, in his discretion, refer 

court-martial with members either because, with respect t

721-741--64----3 
Section 1 (4) amends article 19 by providing that befo

court-martial may adjudge a bad-conduct discharge the ac

be represented or afforded the opportunity to be represe

trial by counsel who is legally qualified in the sense of ar

The offered representation, of course, will be at no exp

accused. This amendment does not limit or otherwise 

right the accused may have to obtain counsel of his ow

under article 38(b). Also, the accused may decide not to 

self of the opportunity to be represented by counsel qual

article 27 (b) . 

Section 1 (5) amends article 25 to provide in subsection 

an accused who desires that enlisted members serve on 

martial shall make such a request before the conclusion o

called by the law officer under article 39 ( a) prior to tria

absence of such a session, before the court is assembled fo

of the accused. One of the purposes of the proposed am

article 39, infra, is to insure that the trial of the general 

not be delayed after the members are in attendance. Un

practice, an accused can postpone his request for enliste

until the appointed members of the court have gathered 

listed persons are not then on the court, the court would 

to adjourn until enlisted members are obtained and some o

members relieved. 

The request for enlisted personnel may be made at any 

to the conclusion of a session called prior to trial pursu

amendment to article 39. Only one pretrial session woul

in any particular case, although that session may continue 

as may be necessary and may be recessed, postponed, co

reconvened. A reconvened pretrial session does not const

ond such session, but rather a continuation of the session 

If no pretrial hearing is held, the procedure for requesti

persons will be substantially the same as the procedure 

Article 25 is further amended by substituting the word "

for the word "convened" in subsection (c) (1). The term 

28 
y g 

gathering as distinguished from the appointment of the cou

Section 1 (6) amends subchapter V by indicating in the 

that law officers may be detailed to special as well as to 

courts-martial. 

Section 1(7) amends article 26(a) to provide that a comm

officer acting as a single-officer general court-martial must 

qualifications generally specified for a la w officer and, in addit

be certified to be qualified for duty as a single-officer gener

martial by the Judge Advocate General. 

The amendment also provides that a commissioned office

certified to be qualified for duty as a law officer of a gener

martial is also qualified for duty as a law officer of a single-

other special court-martial. A commissioned officer who is 

to be qualified for duty as a law officer of a special court-m

qualified for duty as a law officer of any kind of special court

The amendment will permit the establishment of a special lis

viduals certified to be qualified to act as special court-ma

officers, thus making the opportunity to act in this capacity 

to the younger judge advocates or legal specialists and pro

training ground for future general court-martial law offic

detail of a law officer to a special court-martial is made s

Secretarial regulations since the supply of individuals qualifi

officers is somewhat limited and will have to be controlled. 

Section 1 (8) amends article 26 (b) to reflect the amendment 

39. 

Section 1 (9) amends article 29 to provide that no member 

eral or special court-martial may be absent or excused, excep

reasons specified, after the court has been assembled for the tr

accused, and by specifically excepting from the operation of su

(b) and (c) single-officer general and special courts-marti

section further amends article 29 by deleting any referenc

sections (b) and (c) to the oaths of the members so as to mak

that it is not required that new members take their oaths at 
absent court members, the trial shall proceed as if no ev

previously been introduced unless a verbatim record of th

previously introduced or a stipulation thereof is read in c

presence of the new law officer, the accused, and counsel. T

knowing the identity of the newly detailed law officer and a

tation with counsel, must request in writing that the new si

court try his case (see section 1(2». Otherwise, the charg

returned to the convening authority for reference to a co

which includes members or for other disposition. 

Section 1 (10) amends article 35 by extending the protect

for preparation by the defense to sessions called by the law o

the proposed amendment to article 39. 

Section 1 (11) amends article 38 by providing in subsectio

if the accused who has individual counsel does not desire th

counsel act in his behalf as associate counsel, detailed coun

excused by the law officer instead of by the president when 

by a court-martial which includes, or may consist only of, a 

This change is made necessary by the provisions in this bill 

officer courts-martial, and also by the amendment to articl

permits the law officer to call the court into session withou

ence of the members. In the absence of the amendmen

38 (b), the law officer would not be empowered to excuse co

session. 

Section 1 (12) amends article 39 to provide that the law 

court composed of a law officer and members may call the 

~ession ~ithout the attendance of members for the purpos

mg of mterlocutory motions raising defenses and objecti

upon other matters that may legally be ruled upon by the 

h~lding the arraignment and receiving the pleas of the acc

mItted by regulations of the Secretary concerned, and 

other procedural functions which do not require the presen

members. The effect of the amendment O'enerally is to co

t " 1 '0' a~ cnmma procedure with the rules of criminal procedu

ble III the United States district courts and otherwise to giv

30 
CMR 334. 

A typical matter which could be disposed of at a pretrial 

the preliminary decision on the admissibility of a contested c

Under present practice, an objection by the defense to the adm

of a confession on the ground that it was not voluntary f

results in a lengthy hearing before the law officer from w

members of the court are excluded, although they must still 

attendance. By permitting the law officer to rule on this qu

fore the members of the court have assembled, the member

required to spend considerable time merely waiting for a d

the law officer. If he sustains the objection, the issue is reso

the facts and innuendoes surrounding the making of the c

will not reach the members by inference or otherwise. I

officer determines to admit the confession, the issue of volu

will normally, under civilian and military Federal practice, 

gated before the full court. 

This amendment merely provides a grant of authority t

officer to hold sessions without the attendance of the memb

court for the purposes designated in the amendment and do

tempt to formulate rules for the conduct of these sessions or 

mining whether or not particular matters not raised therea

considered as waived. These are questions more appropr

solved under the authority given to the President in article 3

rules governing the procedure before courts-martial. The 

now prescribes rules as to motions raising defenses and obj

court-martial trials in chapter XII of the Manual for Court

as does the Supreme Court for Federal criminal trials in Rul

Federal Rules of Criminal Procedure. 

This amendment also provides that the law officer of a spec

martial as well as the law officer of a general court-martial m

quested to appear before the court to put the findings in pro

Section 1 (13) amends article 40 by making it clear that 

court includes a law officer that official will decide whethe

continuance will be granted. This has actually been the 

under the code. 
time and place of its taking, the manner of recording th

whether the oath shall be taken for all cases or for a parti

shall be as prescribed by regulations of the Secretary concer

amendment also contemplates that Secretarial regulations m

the administration of an oath to certified legal personnel 

time basis as in the case of legal practitioners before civilia

Section 1 (16) 'amends article 45 to allow, if permitted 

tions of the Secretary concerned and if the offense is not one 

the death penalty may be adjudged, the entry of findings 

upon acceptance of a plea of guilty without the necessity of 

the findings. At common law and under the practice in t

States district courts, the court may enter judgment upon 

guilty without 'a formal finding of guilty and the record of 

entered on such 'a plea constitutes a judicial determinatio

The amendment is intended to conform military criminal 

with that in civilian jurisdictions, and to delete from milita

the merely ritualistic formality of requiring the assemble

vote on the findings. The section also deletes reference in 

(a) to "arraignment before a court-martial" to conform 

changed article 39. 

Section 1 (17) amends article 49 (a) to provide that, whe

being heard, the law officer or court-martial without a law 

the appropriate authority to forbid the taking of a depositio

cause. The intent and purpose of this change is to vest 

officer, or in the court-martial if it does not include a law 

authority to rule on this interlocutory matter after trial ha

Section 1 (18) amends article 51 to reflect the amendmen

41 which provides that, when a court-martial includes a law 

is t~e person who rules upon all challenges for cause, and 

speCIfically in subsection (c) the duty of the law officer and 

of a court-martial without a law officer to instruct the mem

court. This section further amends article 51 to provide th

of the law officer of a special, as well asa general court-ma

. , questlOns of law and all interlocutory questions other th

32 
convicted, adjudge an appropriate sentence. 

Section 1 (19) 'amends article 52 to conform with the am

to article 45 by inserting in subsection (a) (2) a provision 

findings of guilty may be entered against a person upon h

guilty without the formality ofa vote, if permitted by regu

the Secretary concerned and if the offense is not one for w

death penalty may be adjudged. Article 52 is further 'am

adding to subsection (c) a provision whereby the membe

court may determine to reconsider a finding of guilty or, wi

to decreasing it, a sentence upon any vote which indicates 

consideration is not opposed by the number of votes required 

finding or sentence. This amendment is consistent with ju

fair procedure, for Bucha vote would indicate that at least o

members who had voted for the finding or sentence now d

reconsider the matter. A reconsideration of a finding of gu

lesser included offense with 'a view to arriving at a finding 

of a greater offense is actually a reconsideration of a findin

guilty, and accordingly a majority vote is required befor

reconsideration can be undertaken. This amendment is not 

to have any effect upon the time within which a finding or 

may be reconsidered, this being part of the rule making pow

President under article 36 (see paragraphs 74d(3) and 7

Manual for Courts-Martial for rules now in effect) . 

Section 1(20) amends article 54(a) to provide for authe

of a record of trial by general court-martial by the signatu

law officer. Under the present law, the record must be auth

by the signature of both the law officer and the president, o

are unavailable for one of the reasons specified in the article

members. However, neither the president nor other mem

present during the many hearings held out of their prese

under the present practice, and thus actually are unable to c

the correctness of a transcription of those proceedings. The 

ment further provides that if the law officer cannot, for on

specified reasons, authenticate the record, it shall be auth
adjudged by special courts-martial. This amendment c

inconsistency which has heretofore existed, since the use 

marized record of trial is now permitted in special court-ma

if the sentence does not extend to a bad-conduct discharge. 

sons which justify the employment of summarized records 

special court-martial cases are equally applicable to the cla

eral court-martial cases affected by this admendment, that is

effort, and expense of preparing a verbatim transcript is no

It is recognized, of course, that the general court-martial 

have to be fully reported in the first instance, and the a

deals only with preparation of the record after trial. 

Section 13 provides that these amendments become effect

first day of the tenth month following the month in which 

34 
EXHIBIT C 


time for petitioning the Judge Advocate General for n

from one to two years, and for other purposes. 

1 Be it enacted by the Senate and House of Representativ

2 United States of America in Oongress assembled, That c

(Uniform 

3 Code of Military Justice) of title 10, United States 

amended as 

4 follows: 

5 (1) Section 869 (article (9) is amended by adding 

6 following new sentence at the end thereof: 

7 "Notwithstanding the provisions of section 876 of 

8 (article 76), the findings or sentence, or both, in 

9 any court-martial case which has been finally re10 viewed, but which has not been reviewed by a board 

11 of review, may be vacated or modified, in whole or 

12 in part, by the J·udge Advocate General because of 

13 newly discovered evidence, fraud on the court, lack 

14 of jurisdiction over the accused or the offense, or 

15 error prejudicial to the substantial rights of the 

16 accused." 

17 (2) Section 873 (article 73) is amended by strikin

18 the first sentence the words "one year" the first time the

19 and inserting the words "two years" in place thereof. 

SEC. 2. The amendment made by the first subsectio

tion 1 of 

21 this Act is effective upon the date of its enactment. Th

ment made 

22 by the second subsection of section 1 of this Act is effec

respect 

23 to a court-martial sentence approved by the convening 

on and 

24 after, or not more than two years before, the date of its en

, y g g

to grant relief in certain court-martial cases, by exten

time for petitioning the Judge Advocate General for n

from one to two years, and for other purposes. 

Section 1 (1) amends article 69 by adding a new sentence au

the Judge Advocate General to either vacate or modify the fi

sentence, or both, in whole or in part, in any court-martial ca

has been finally reviewed, but which has not been reviewed b

of review, because of newly discovered evidence, fraud on t

lack of jurisdiction over the accused or the offense, or error pr

to the substantial rights of the accused. It has been the e

of all the services in this class of cases, particularly with r

summary court-martial cases and those special court-martial 

reviewable by a board of review, that some provision should 

for removing the fact of conviction, as well as granting oth

Since the decision to remove the fact of conviction is a judic

mination based on the traditional legal grounds mentione

proposed amendment, it is considered appropriate that th

Advocate General should be empowered to perform this fu

well as to grant lesser forms of relief. This amendment sh

be construed as limiting in any manner the powers now pos

the Service Secretaries acting through correction boards t

an error or remove an injustice under 10 United States Code 1

Section 1 (~) amends article 73 to extend the time within 

accused may petition the Judge Advocate General for a new t

one to two years. 

Section ~ provides that the amendment in section 1(1) 

effective upon the date of its enactment and that the amen

section 1 (2) becomes effective with respect to a court-ma

tence approved by the convening authority on and after, or 

than two years before, the date of its enactment. 

EXHIBIT D 


Ca8e8 Reviewed by Board8 of Review Army____________________________________________________________ _ 

Navy______________________________________________________________ 

Air Force _________________________________________________________ _ 

Coast Guard _______________________________________________________ 

Total_______________________________________________________ _ 

Cases Docketed WUh U.s. Court of Military Appeals Army______________________________________________________________ 

Navy______________________________________________________________ 

Air Force __________________________________________________________ 

Coast Guard _______________________________________________________ 

Total_______________________________________________________ _ 

For the Period 


July 1, 1962, to June 30, 1963 


721-741-64-4 

Report 

of the 

UNITED STATES COURT OF MILITARY APPEA

January 1, 1963, to December 31, 1963 

During the fiscal year 1963 the court reviewed 847 cases; 

submitted to the court upon petition of the accused filed in a

with Article 67 (b) (3), 20 were certified to the court by th

Judge Advocates General in accordance with Article 67 (b) (

mandatory cases were filed under Article 67(b) (1) of the 

Code of Military Justice. 

II 

Chief Judge Robert E. Quinn, as a representative of 

attended the annual meeting of the American Bar Associatio

Chicago, Illinois, during the month of August 1963. In co

with the American Bar Association he participated, togethe

Judge Advocates General of the services, in the 17th annual m

the Judge Advocates Association, by reporting on the stat

court's work during the past year. In the course of the discus

business meeting of the Judge Advocates Association on th

filed in the Senate by Senator Sam J. Ervin, Jr., of North 

on August 6, 1963 (S. 2002 to S. 2019), 88th Congress, 1st s

the constitutional rights of military personnel, the Chief Ju

special commendation to 'William Creech and Robinson O

staff members of the Subcommittee on Constitutional Righ

Committee on the Judiciary, U.S. Senate. 

III 

There was printed in the latter part of 1963 a report by 

committee on Constitutional Rights of the Committee on the J

U.S. Senate, based on hearings held in 1962. This report su

the most significant opinions expressed during the hearing

recommendations of the subcommittee. Included therein is 

on the Court of Military Appeals taking particular note o

played by the court in the administration of military just.ic

protection of the constitut.ional rights of service personnel
at a stated rate, which is, in fact, the same as that receiv

judges of the U.S. Courts of Appeals. 

The proposed legislation makes no change in the basic st

functions of the U.S. Court of Military Appeals. It restor

tenure provision originally approved by the House Arme

Committee and passed by the House of Representatives d

81st Congress. Implicit in this restoration is the recognit

effectiveness of the U.S. Court of Military Appeals as th

overseer of the system of courts-martial contemplated by the 

Code of Military Justice. It affords the judges the same r

privileges and survivor benefits as are provided for judges o

Courts of Appeal. However, it limits the total of retireme

the judicial service or any other Federal service of a ju

amount which does not exceed his salary as a judge of the U

of Military Appeals. 

The proposed amendment will accomplish these results as 

(1) Accord the court the judicial position demanded 

portant functions and its many and heavy responsibiliti

(2) Free the judges from the danger of political 

pressures. 

(3) Fully assimilate the bench of the U.S. Court of 

Appeals to that of a U.S. Court of Appeals, thereby bri

administration of military criminal law closer to compl

with that obtaining in Federal civilian courts. 

(4) Assure for the future personnel equal in professio

ity and standing to those recruited as judges of othe

courts. 

(5) Eliminates all contentions that the court is an "inst

ity of the Executive" by confirming its identity as a 

court established under article I of the Constitution. T

is in no way diminished by the location of the court in th

ment of Defense "for administrative purposes only." T

"for administrative purposes only" encompasses the ren

the Department, of such housekeeping services as the pro

48 
() () y 

established under article 1 of the Constitution of the Unite

and located for administrative purposes only in the Depar

Defense. The court consists of three judges appointed fr

life by the President, by and with the advice and consen

Senate. Not more than two of the judges of that court ma

pointed from the same political party, nor is any person eli

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

court or of the highest court of a State. The President sha

nate from time to time one of the judges to act as chief judg

judge shall hold office during good behavior, and is entitle

salary, allowances, perquisites, rights of resignation, an

ment benefits provided for judges of the United States C

Appeals, including survivor benefits for widows and depend

dren, and shall be similarly excluded from coverage under 

2251-2267 of title 5, United States Code. The chief judg

court shall have precedence and preside at any session w

attends. The other judges shall have precedence and pre

cording to the seniority of their commissions. Judges wh

missions bear the same date shall have precedence acco

seniority in age. The court may prescribe its own rules of p

and determine the number of judges required to constitute a 

A vacancy in the court does not impair the right of the re

judges to exercise the powers of the court. 

"(2) Judges of the Court of Military Appeals may be 

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

malfeasance in office, but for no other cause. 

"(3) If a judge of the Court of Military Appeals is tem

unable to perform his duties because of illness or other di

the President may assign a judge of the United States Cour

peals for the District of Columbia to fill the office for the p

disability. 

"(4) If a judge of the Court of Military Appeals desir

tire for disability, he shall furnish to the President a certi
caused by the death, resignation, or retirement of the disa

may not be filled. Any judge whose disability causes th

ment of an additional judge shall, for purpose of preceden

as chief judge, or temporary performance of the duties of 

be treated as junior in commission to the other judges of 

"SEC. 2. The United States Court of Military Appeals e

under this Act is a continuation of the Court of Militar

as it existed prior to the effective date of this Act, and 

rights or powers, interruption of jurisdiction, or prejudi

ters pending in the Court of Military Appeals before th

date of this Act shall result. A judge of the Court of Mi

peals so serving on the day before the effective date of thi

for all purposes, including salary, allowances, perquisites

resignation, and retirement benefits including survivor b

widow and dependent children, be a judge of the Uni

Court of Military Appeals under this Act, and shall serv

expiration of the term of office for which he was orig

pointed: Provided, however, That the President, by and 

advice and consent of the Senate, may at any time after th

date of this Act appoint him to hold office during good 

under section 1 of this Act. Retirement benefits of a jud

on the effective date of this Act shall accrue from the d

original appointment, and he may make a written electio

ing survivor benefits, in the manner provided by section 3

28, United States Code, within six months of the effecti

this Act. 

SEC. 3. Notwithstanding any other provision of this Ac

of the United States Court of Military Appeals shall u

nation, or retirement for disability or length of service, b

account of his judicial service or any other Federal servic

or annuity or combination thereof, the total of which e

salary of a judge of the United States Court of Military 

The House of Representatives passed the bill on July 9, 1

50 
Respectfully submitted, 

ROBERT E. QUINN

Ohief J

lImIER FERGUSON

J

PAUL J. KILDAY, 

J

EXHIBIT A 


---

, 16,965 cases actually assigned docket numbers. 1 case originally not docketed-given 

Total by services 

Petitions (Art. 67(b)(3)): 

Total as of June 30, 

1961 

1961, to June SO, 

1968 

1965, to June SO, 

1963 

Arrny----------------------------­

~avy--------------,------------- Air Force__________________________ 

Coast Guard _______________________ 

8,470 

3,075 

3,448 

40 

431 

323 

193 

1 

353 

268 

204 

2 

Total ___________________________ 15,033 948 827 

Certificates (Art. 67(b)(2)): 

Arrny----------------------------­

~avy---------------------------- Air Force__________________________ 

Coast Guard _______________________ 

122 

181 

49 

6 

7 

6 

4 

0 

6 

5 

9 

0 

Total ___________________________ 358 17 20 

Mandatory (Art. 67(b)(I)): 

Arrny----------------------------­

~avy---------------------------- Air Force______'____________________ 

Coast Guard _______________________ 

31 

3 

3 

0 

0 

0 

0 

0 

0 

0 

0 

0 

Total ___________________________ 37 0 0 

Total cases docketed______________ 15, 428 965 847 

12 flag officer cases; 1 Army and 1 Navy. 

15,200-A when opinion was rendered on motion to dismiss. 115 cases counted as both petitio

tificates. 5 cases certified twice. 144 cases submitted as petitions twice. 2 mandatory cases 

5 mandatory cases filed as petitions after second Board of review opinion. 3 cases submitted 

for the third time. 
Remanded to Board of Review _______ 138 5 

Court action due (30 days) 3_________ 57 88 5

Awaiting replies 3___________________ 25 25 2

Certificates (Art. 67 (b) (2»: Opinions rendered __________________ 348 16 1

Opinions pending 3__________________ 2 3 

Withdrawn _________________ - __ ---_ 6 1 

Remanded_________________________ 1 1 

Set for hearing 8____________________ 0 0 

Ready for hearing 3_________________ 1 0 

Awaiting briefs 3____________________ 1 0 

Mandatory (Art. 67(b)(I»: Opinions rendered __________________ 36 1 

Opinions pending 8__________________ 0 0 

Remanded _________________________ 1 0 

Awaiting briefs 3____________________ 1 0 

= = = Opinions rendered: 

Petitions__________________________ 1,319 95 8

Motions to dismiss__________________ 11 0 

Motion to stay proceedings __________ 1 0 

Per curiam grants __________________ 26 1 

Certificates________________________ 306 15 1

Certificates and petitions ____________ 40 1 

Mandatory ________________________ 36 1 

Remanded_________________________ 2 0 

Petitions for a new triaL ____________ 1 1 

Petition for reconsideration of petition 

for new triaL ____________________ 1 0 

Motion to reopen___________________ 1 0 

Total ___________________________ 1, 744 114 10

lAs ot June 30, 1961, 1962, and 1963. 

f 1,967 cases were disposed ot by 1,950 published opinIons. 106 opinIons were rendered In 

63 Army officers, 22 Air Force officers, 15 Navy officers, 3 Marine Corps officers, 2 Coast Gua

1 West Point cadet. In addition, 19 opinions were rendered In cases involving 20 cIvilians. 

concerned enlisted personnel. 

S6 

Disposed of by order setting aside findings and sentence_________________ 3 0 0 

Remanded to Board of Review_______ 138 6 6 

Total ___________________________ 15,300 937 888 

Pending completion a. o

June so, 1961 June so, 196t J

Opinions pending________________________ _ 16 19 

Set for hearing __________________________ _ o o 

Ready for hearing _______________________ _ 1 o 

Petitions granted-awaiting briefs _________ _ 17 14 

Petitions-court action due 30 days________ _ 57 88 

Petitions-awaiting replies________________ _ 25 25 

Certificates-awaiting briefs ______________ _ 1 o 

Mandatory-awaiting briefs ______________ _ 1 o 

TotaI ____________________________ _ 118 146 

Report 

of 


THE JUDGE ADVOCATE GENERAL 


of 


THE ARMY 


January 1, 1963, to December 31, 1963 

721-741--64----5 

g

cessive year and that there was a slight decrease of 0.6 perc

the preceding fiscal year in the number of special court-marti

There was a sharp reduction in summary court-martial trial

43,542 last year to 32,316, or approximately 30 percent. This 

can be attributed primarily to the amended article 15 of t

form Code of Military Justice, which was in effect during 5 

of the reporting period, and which provided commanders wi

extensive and effective nonjudicial punishment authority. 

The number of court-martial trials for fiscal year 1963 (

strength, total Army, 1,015,142) follows: 

Convicted Acquitted 

General_________________________________ _ 1,762 81 

Special_________________________________ _ 25, 147 1,301 

Surnrnary _______________________________ _ 30,939 1,377 

Total_____ ______ _ _ _ _ ___ _ _ _ _ _ __ _ _ _ _ _ 57, 848 2, 759 

Records of trial by general court-martial received by The 

Advocate General during fiscal year 1963 : 

For review under Article 66________________________________________

For examination under Article 69___________________________________

Total________________________________________________________

Workload of the Army Boards of Review during the same 

On hand at the beginning of period__________________________________

Referred for review________________________________________________

Total________________________________________________________

Reviewed _________________________________________________________

Pending at close of period__________________________________________

Total________________________________________________________

-This figure includes 8 cases which were referred to boards of review pu

Article 66, Uniform Code of Mllltary Justice, and 7 cases Involving rehear

consideration. 
pursuant to article 66 during the fiscal year, 1,002 (68.4 p

quested representation by appellate defense counsel. The 

the cases of 358 accused were forwarded to the U.S. Court 

Appeals pursuant to the 3 subdivisions of article 67 (b). 

prised 24.4 percent of the number of these cases reviewe

of review during the period. Of the mentioned 358 case

forwarded on petition of accused, and 6 were certified by 

Advocate General. 

The actions taken by the Court of Military Appeals on 

for fiscal year 1963 were as follows: 

Opinions on petitions Certification Mandatory rev

Affirmed Reversed Affirmed Reversed Affirmed Re

23 19 4 3 o 

Petitions denied Petitions granted 

336 33 

Following extensive hearings held during the latter p

ruary and the early part of March 1D62 before the Subco

Constitutional Rights of the Committee on the JUdiciary, 

18 bills were introduced in the Senate on 6 August 1963

bills were introduced in the House of Representatives on 

ber 1963. Six of these bills pertain to the issuance of ad

discharges under conditions other than honorable; two r

exercise of command influence on boards and courts-ma

the preparation of efficiency reports on officers serving on 

tive boards, courts-martial, and boards of review; one p

the establishment of a Judge Advocate General's Corps i

two grant jurisdiction to U.S. district courts to try civil

fenses committed in oversea areas; one establishes a bo

correction of military records at Department of Defens

the remainder pertain to the administration of military 

The Department of the Army has forwarded its comm

legislation to the Department of Defense. However, as 

of the preparation of this report, the position of the De

Defense has not been crystalized on the proposals. 

62 
py g 

military justice. 

Lack of space forbids the discussion of the provisions of each 

18 bills in detail. However, the six bills designed to regulate t

ance of administrative discharges under conditions other than 

able impose an elaborate and complicated system of hearin

appellate review which is closely analogous to the court-mart

tem. The rights extended by the proposals to a respondent 

being considered for administrative discharge for misconduct i

but are not limited to, advice by Government-furnished legall

ified counsel with respect to his decision concerning waiver of 

ing, the right to have his case heard by a board which not on

sesses the power of subpena but over which a law officer hav

qualifications prescribed for general court-martial duty will p

the right to be represented at the hearing by Government-fu

legally qualified counsel, the right to demand trial by special 

eral court-martial in lieu of board proceedings, and the r

appeal to the U.S. Court of Military Appeals with representa

Government-furnished legally qualified counsel from any unfav

action by the discharge review board, the board for the correc

military records, or both. The increase in the burden of judge 

cates in providing legal services in these administrative cases 

be huge. Indeed, because of the increased personnel requir

alone, it is not improbable that enactment of the proposals wou

an end to the use of the undesirable discharge. Ifthis should h

it would result in the discharge of all personnel, other than as a 

of court-martial sentence, by the issuance of a certificate ref

honorable service. In my opinion, to issue discharges under hon

conditions to individuals whose conduct has reflected gross di

on the Armed Forces would be an injustice to the millions of 

and dedicated men who have been discharged in the past under 

able conditions for honest and faithful service. 

It will be recalled that I earlier mentioned that one of the 

tive proposals created a board for the correction of military 

at the Department of Defense level which would replace e
of a board for the correction of military records within t

ment of Defense in lieu of the boards which now operate 

tary departmental level and the proposal to grant this 

authority to expunge the fact of conviction from the reco

court-martial case not reviewed by a board of review, w

include all cases tried by summary and special courts-

not appear sound. 

The present system of separate service boards is workin

while the promise of any uniformity which might be ob

unified board may be considered desirable, we are more in

obtaining justice and equity in a particular case. The v

of the regulations, policies, grades, terminology, and custom

in each of the services are so dissimilar that any unified b

have to be compartmentalized within a brief period in ord

tion with any efficiency. The result would be that its opera

be no different than now exists with separate service bo

thermore, any further uniformity that is considered to b

may be obtained under existing law by virtue of the author

to the Secretary of Defense to supervise the boards. 

Insofar as the proposal would authorize the board to se

findings of a court-martial is concerned, it is observed that 

to grant to an administrative board what is essentially 

function. Although some specific statutory power shou

provide relief in cases not reviewed by a board of revie

there are new trial grounds or in which there has been 

prejudicial error, I believe this power would be better exer

Judge Advocate General. Legislation, denominated the 

has been drafted which is designed to effect this purpose 

has been approved by the Department of the Army. This 

appears as exhibit C to the joint report. As those famili

administration of military justice in the Army know, m

for many years been granting relief in deserving inferior 

tial cases on rather broadly based jurisdictional grounds

64 
remembered that each member of the Court of Military Ap

pressed his sympathy with such a change in the law in Unit

v.Oulp (No. 16,906), 14 USCMA 199, 33 CMR 411 (5 Sep 63

change, plus the provisions in the "G" bill permitting the 

law officers on special courts-martial, would allow the Arm

the special court-martial as a forum for offenses of medium 

where a bad-conduct discharge might seem appropriate. 

bill, I believe, accomplishes all of those objectives in the 

military justice sought in the bills introduced in Congress w

desirable and justifiable. 

The "G" bill, unlike one of the bills under discussion, does n

nate the summary court-martial. The elimination of this c

proposed on the grounds that the provisions of the new arti

the Uniform Code of Military Justice had made the summa

martial extraneous to the needs of military justice. Howeve

of the need for a court to which minor infractions could be 

in those instances in which individuals demanded trial for 

for which punishment under article 15 by a company gra

was proposed, I consider the elimination of the court inapp

at least until we have had more experience with the new art

Another proposal in the field of military justice which the 

ment of the Army opposed was the extension of the subpe

to article 32 investigating officers. If this bill should bec

allegations of arbitrary and capricious rulings of the inve

officer in refusing to subpena witnesses would give rise to 

litigation, without providing any real benefit to the accused

all, the purpose of the pretrial investigation is merely to d

whether there is sufficient indicated (see art. 34(a)) evidenc

rant trial and to obtain a recommendation concerning the 

the court-martial which should try the case, and, of course, 

vening authority is not bound by the findings and recomm

of the investigating officer. Consequently, it would har

worth while from the standpoint of either the Governme

accused to turn the pretrial investigation into a sort of pre
years, and shall be eligible for reappointment.

 The Cou

tary Review" has the authority to suspend all or any part of a 

I consider that the proposal to require civilians to sit on e

of the board and the stipulation that only civilians could 

chief judge is an unwarranted, unsubstantiated, and undo

attack on the integrity and ability of Army boards of revi

are and always have been composed entirely of officers. O

The Judge Advocate General's Corps have always looked 

appointment toa board of review as being a signal honor 

they might someday aspire. However, the provision req

appointmentof civilians to the Court of Military Review and 

them what amounts to life tenure, while limiting members of 

to 3-year terms with eligibility for reappointment, would 

eliminate motivation for officers to serve on the court but 

a personal affront to their ability and integrity. Inasmuc

would be few civilians, if any, who had practiced in th

military justice for a period even roughly equivalent to th

senior members of The Judge Advocate General's Corps

members of the court would be apt to find themselves serv

side or under the supervision of civilian members who wer

feriors in both knowledge and experience. Furthermore

available to me (see exhibit A) forcibly demonstrates that 

records of the Army boards of review are compared with t

of boards of review composed in part of civilians, the Army 

review are vastly and clearly superior. 

The first months of experience with the operation of 

Article 15, Uniform Code of Military Justice, indicates 

powers granted by the article are being employed with 

and that a beneficial effect on discipline has resulted. Of 

portance is the fact that the drastic reduction in the numb

tried by summary courts-martial is due primarily to the 

powers granted by the new article. During the last quarte

year 1963, the only period for which I have complete stat

authority granted by the new article was used by comm

66 
used in the last quarter of fiscal year 1963 is reflected in ex

Since present stocks of the Manual for Oourts-Martial, 

States, 1951, are practically depleted, The Judge Advocates 

of the three services decided that a revised edition should 

pared for publication early in fiscal year 1965. After a nu

meetings on the subject, it was determined that this would 

major revision but would generally reflect only those change

have been clearly delineated by statutory and decisional la

interservice committee has been working .on the revision 

August 1963 and has already made significant progress. T

manual is expected to be in looseleaf form to facilitate the ins

future changes and whatever notes judge advocates might d

keep. 

The U.S. Army Judiciary, activated 1 October 1962 as a 

activity of my office, made further significant progress in th

ti.on of a completely independent Army judicial system whic

with the establishment of the Field .Tudiciary in 1958. Th

boards of review were organized into the Appellate Judicia

sisting of the Office of the Chief (to which are assigned t

missioners) and the boards of review (now four in numo

supported by the Clerk of the court. 

The Chief of the Appellate Judiciary serves also as Chai

Boards of Review Nos. 1 and 4. He acts as the coordinato

b.oards of review, directs the activities of the commissioner

responsible f.or the training .of the Mobilization Designee

Appellate Judiciary. The nine-member Board of Review 

in a sense, an en banc Board of Review, consisting of al

members of the other three boards. The f.ollowing cases are 

to it: 

(1) Those involving a sentence to death; 

(2) Those in which the sentence affects a general officer; 

(3) Those which involve an issue upon which Army b

review reached divergent conclusi.on in recent dec

(4) 	Any other case specifically referred to it by Th

Advocate General. 
for the boards of review. The Clerk of Court is the official 

of court-martial records and, under the supervision of 

Judicial Officer, is charged with the complete responsibili

administrative control and processing of court-martial ca

appellate review. The activation of his office is another lo

in the evolution of the independent Army Judiciary. 

The Trial JUdiciary continued to render outstanding s

though with a further reduction of two judicial officers. D

through July 1963, to expedite general court-martial trials

of the Appellate Judiciary and the Chief Judicial Officer 

law officers in several instances. This practice is particu

able to prevent unnecessary delays in general court-martial 

to keep all judicial officers in close touch with problems a

level by periodic exposure to them. 

The Defense and Government Appellate Divisions co

provide brilliant representation for their respective clie

appellate tribunals, despite the relative lack of prior courtro

ence of the younger counsel. In furtherance of my policy 

effective and experienced representation of those convicte

I have instituted a continuing program of alternating judge 

between defense and Government representation. This pr

proved most successful. It provides better trained couns

public knows that the quality on both sides is as nearly 

possible. 

I have long recognized that joint participation of mem

Army Judiciary with their civilian counterparts is worth wh

ing in helpful exchanges of information and ideas. In con

plementation of this policy, during the past year both app

trial judicial officers have provided representative attend

meetings and seminars of civilian judicial conferences a

particularly the State and Regional Judges' Seminars sp

the Joint Committee for the Effective Administration of Ju

During calendar year 1963, The Judge Advocate Gener

U.S. Army, provided resident instruction for 925 military l

68 
on 15 :May 1964. It is made up of 32 officers, including 2 na

specialists and 4 allied officers, 1 from the Philippines, 2 from 

and 1 from Thailand. 

A text, Department of the Army Pamphlet 2'7-18'7, Military 

was published in May 1963, and a 3-year compilation of 

curement Legal Service was published in June 1963 as De

of the Army Pamphlet '715-50-3. At the time of this wr

issues of the Procurement Legal Service have been publish

is expected that at least 5 more will be completed by the en

year. 

During 1963, the School provided nonresident instruction 

tary Justice and other military legal subjects for over 3,50

reservists and members of the Army National Guard. Th

supported the U.S. Army Reserve school program by prepa

distributing material to '76 U.S. Army Reserve schools. Spe

the School provided material for an Officer Career Course

Judge Advocate Operations Course, and a New Development

The Officer Career Course was by far the largest with 958 

and 143 instructors. Instructional material was also prep

the approximately 500 officers and 4'75 enlisted men who 

rently members of the Judge Advocate General's Service O

tions and for the approximately 450 Reserve and Nationa

officers assigned to troop program units. An extension cou

gram provided instruction for about 1,350 officers and enlis

During the period 9-12 September 1963, a conference of jud

cates representing the court-martial jurisdictions through

world was held at The Judge Advocate General's School. 

attended by approximately 180 judge advocate officers wh

outstanding speakers on military law and related topics and 

informative seminars on military justice and other phases of 

law. 

Four issues of the Military Law Review were published du

period. These volumes contained articles, comments, and su

areas of interest to judge advocates. Among these were artic

ing with pretrial advice under Article 34, Uniform Code of 
Additionally, the School published the Staff Judge Advoc

book, which provides standing operating procedures for ju

cate officers in Military Justice matters and other office 

A new training film entitled "Nonjudicial Punishment" 

during the year. Final editing of the film is now underwa

The School revised the ROTC Manual 145-85, Military 

Boards of Officers. The revised manual, together with a re

ject schedule, should make current the teaching of Milita

to ROTC students. 

In the personnel area, the year has been marked by intensi

to raise professional experience levels within the Corps and 

the number of professional personnel retained on a career ba

erate success has been achieved in some areas, and the spe

in Regular Army recruiting resulted in a new high for rece

29 new Regular Army judge advocate officers. These imp

are not yet of great magnitude, however, and the retention o

remains a major problem. Despite the recruiting effort, t

net loss of Regular Army strength, 39 officers having left 

during the year through death, retirement, and resignatio

tion has long since been recognized by The Judge Advocat

of the Armed Services as our primary personnel concern. 

Adequate numbers of noncareer lawyers were recruited d

to fill our ranks on a temporary basis. Most of these officers 

but 3 years, and we will continue to experience the ineffic

range turnover. 1Ve decline to compromise high professio

for poor or mediocre quantity, recognizing that such a c

might temporarily aid career recruiting but would have 

effects far more adverse than personnel shortage. Rather

expanded and intensified our efforts toward procurement an

of the highest caliber of lawyers. Many of our program

scribed in the report for 1962. Certain new personnel ac

initiated, aimed at individualized career management and 

semination of career information. An informal Corps New

established; an improved JAGC Personnel and Activity 

was distributed; a career management pamphlet was pub

70 
jpp

adverse trend of losses. 

Another program which I strongly endorse is the return 

prewar practice of initial appointment of officers of The Judg

cate General's Corps in the grade of captain. This would eq

initial grade to the responsibility of the lawyer, make compa

military grade with that of his colleagues who entered milita

ice when he began the study of law, and in some small measu

burse him for the costs of education he had to bear personally

ing the military services the benefits of his new qualifications 

expense, but which for other professions are borne by the Gove

In my opinion, the present inequity is patent. 

The true solution to retention difficulties, it is believed, lie

return to the program permitting pursuit of legal educatio

entitled to military pay and allowances. This, of course, wil

congressional action. Removal of the prohibitive rider to the 

priations act was vigorously attempted this year under the 

of Department of Defense recognition of the shortages of car

personnel and approval of such educational endeavors. Thes

were not successful, but I have strongly recommended and e

commencement of the congressional committee recommenda

a Department of Defense study (see H.R. Rept. 439, 88th Co

sess., p. 65 (1963) ) , seeking solutions. 

Certain further matters of significant import as to recruitm

retention must be noted. Those officers who first entered serv

ing 'VorId War II are now reaching retirement eligibility, 

creasing losses must be anticipated. The pressure of the d

been seriously reduced by virtue of the exemption of marri

It may be expected that the numbers of short-term volunte

diminish. Recognizing our great reliance upon the young no

officers who make up approximately 45 percent of the Corps, 

greatly intensified our recruiting efforts. Of a Regular Ar

thorized strength of 786, there are presently on duty only 512. 

are 145 career Reserve personnel, 'and the remainder are sho

members. 
diminution of the importance and value attributed to the legal 

The worth of the legal services cannot be disputed-in recen

has increa:sed immeasurably-and the very symbol thereof m

tinue apace. 

Summation 

As I observed earlier, my retirement is imminent. It has b

30 years since I first participated in a court-martial case. 

constructive observations drawn from experience may be help

First, the substance and procedure of the law and the q

those who administer the law are of equal importance. Ne

be subordinated to the other; both must be sufficient. 

In the past, much time has been spent on discussions of 

ment of substantive and procedural law. There has been su

improvement-the greatest single improvement has been th

ment of article 15, which has provided for the correction o

soldiers by their commanders. No permanent stain is lef

soldier's record. Long since, the officers of the Army have 

the concept of the pseudo-exemplary sentence, the unfair

punishment designed to scare potential offenders. vVith a f

tered exceptions, military men realize that, except for those w

be kept away from society indefinitely, punishment should be 

toward correction and rehabilitation. Article 15 provides s

rective dosages for expeditious administration. Normally, th

is not removed from his fellows and his training, thereby eli

problems of restoration to the community after confinemen

simple provision for expeditious correction draws us closer 

and universal concepts of good justice, because it creates a n

hood consciousness of good order and discipline. The prin

neighborhood responsibility and keeping the administration o

close to the community is admirably demonstrated in the us

article. This underlying principle should be put to use in the 

community. 

In the last two decades, there has been a tendency to m

administration of justice mechanistic-to remove it from co

72 
participation. Article 15 supplies some of the requisite respo

I am of the opinion that participation by the younger line o

all parts of special court-martial work is salutary. Prope

vision by judge advocates can insure substantial compliance w

During the past 15 years, we have had one particularly s

and careful study of the substance and procedure of the 

Code of Military Justice. The study was made by a board o

composed of a majority of general officers of the line, headed 

bassador Powell, shortly before he became Commanding Ge

the Continental Army Command). The objectivity and mo

of the board is clear, and I observe that the line generals wh

on the board have since been elevated to high and important p

This report of this board I would commend to anyone inte

further betterment in substance and procedure. 

Diverting briefly to the subject of inquiries into the operati

administration of military justice, in my opinion only one tr

standing inquiry has been made by persons outside the service 

administration of military justice during over 32 years of 

That inquiry was made by a committee of eminent membe

bar headed by the late Chief Justice Arthur Vanderbilt. 

Looking back on the Vanderbilt Committee and comparin

other groups, at least two distinguishing characteristics a

fest-one in the makeup of the committee, the other in the 

the inquiry. As to the makeup of the committee, the memb

men who were remote from recent cOlmection with the admin

of military justice, there was a wealth of judicial experienc

the committee members, and the average age of the members 

stantial. Although I recognize that this is an era of youth

well be that this kind of committee work offers a way to 

senior citizen to substantial advantage. Sixty and senility 

synonymous. It could be said that such men have a wider bac

a greater reservoir of experience, and a deeper perspectiv

men are less likely to give rise to thoughts that they pursue 

convictions or lean toward any particular group. The sco
diction there have always been mistakes. A sound and s

ministration of justice should not be made into a burden

slow one because of a few justified complaints-it is safe 

a guess that there will be some unfairness due to human 

eons to come. Unfairness or mistakes quickly corrected fit b

cumbersome restudies ad infinitum. 

Turning now to the quality of those who administer the l

Army, I suggest that there has been a clear failure to make 

for securing and providing an adequate organization of 

lawyers of high competence and quality, and I reiterate 

quality of justice will never be higher than the quality of th

who administer the law. 

To secure and retain military lawyers of high quality, th

be an appropriate organization; there must be an adequat

to share all assignments ; and there must be a sufficie

attraction. 

As to organization, we are fortunate in the Army to hav

Advocate General's Corps, to have statutory provision fo

officers, and to have a statutory definition of the duties of T

Advocate General, as well as the statutory provisions relat

administration of military justice common to all three ser

The relationship existing among the judge advocates and 

manders, the Army Staff, and the appointed officials, up t

cluding the Secretary of the Army, are efficient, wholesome

and pleasant. The relationship shows that a separate pr

Corps works well. Comparative statistics with civilian jur

and the other armed services, together with the high repute 

the Corps by the civilian bench and bar, further are stro

suasive of the propriety of the organization. However, th

area in which the Corps is not used as it should be. This i

of investigations. Investigations of serious fact situatio

all crime should be conducted under legal supervision, and 

of the Army investigative body should be a sturdy structu

tary lawyers responsible for the propriety of such inves

74 
should be set up in the office of each judge advocate general and 

be headed by a general officer. Personnel would be saved 

legal direction and control would render the operations fa

efficient, and the investigational activities of the inspectors ge

well as a part of the directional activity in the Office of the 

Marshal could be eliminated. 

Another feature of organization which would lend to the goo

a~d efficiency of the administration of military justice in the 

would be in the establishment of an independent and separa

ciary in each service, similar to the U.S. Army Judiciary. T

pendent judiciary, with its own judicial conference which wo

civilian conferences, has resulted in a higher degree of efficienc

reversals, and sets an example of quality in its judges, both as 

and as men who know and understand the community over wh

exercise jurisdiction. The fact that they themselves are su

military law gives them a fellow-citizen relationship with the 

the soldiers and qualifies them the better to reweigh evide

review sentences, as well as to consider errors of law. Turnin

to the suggestion that civilians serve on boards of review, the 

mental malignancy in the proposition is that the civilian is no

to the law which he administers-it is a step backward tow

decay which has ruined civilizations in the past-a step tow

master-and-slave philosophy. Our Army is an army of cit

believe it wise to retain the principle of equality between the 

and the judged-by so doing we may avoid the rising of a Sp

at some future date. It is for the foregoing fundamental 

that I advise strongly against civilians on boards of review; 

that boards of review with civilian members have turned in 

on the law alone that is markedly inferior to boards of revie

posed of Army judge advocates is only a secondary reason. So

observe that the Court of Military Appeals is composed of civil

subject to military law-the answer is that the Court of M

Appeals passes only on questions of law. The very essence 

system of law-the peer system-is that both the judges and the 

mUHt answer to the same law. 

721-741--64----6 
does any other group. This brief recitation of the demand

advocates demonstrates why the United States cannot affo

lesser lawyers into the ranks of the Armed Forces. 

The proper strength of The Judge Advocate General's Co

Army should equal lJh percent of the officer strength of t

Army, divided among components as nearly as possible as 

strength of the Active Army is divided among components. 

In my opinion, the officer-lawyer will best serve the Arm

commanders if the lawyers are on a separate promotion l

lawyers, now passed over for promotion, would be retaine

service. Provision could be made for the retention of splen

advocates to age 60 without lessening the opportunities of 

to the line officer. One vital provision of law that leads to h

relations with our brother officers of the line is the statutory 

for five general officers for our Corps. This eliminates thou

part of the line officer that general officer vacancies are dive

the line to "a specialty." There are not enough general office

for the Corps, however. I recommend that eight general o

tions be established for The Judge Advocate General's Co

Army. These positions should be established by statute a

not be weighed in calculating the general officer positions 

needed for the Army. The statute should so state. Such a 

should eliminate rancor on the part of officers of the line. 

general officers should consist of: 

1 Lieutenant General-The Judge Advocate General 

1 :Major General-The Deputy Judge Advocate General 

1 :Major General-Chief Judge, U.S. Army Judiciary 

5 Brigadier Generals: 

Assistant Judge Advocate General for :Military a

national Law 

Assistant Judge Advocate General for Civil Law 

Theater Judge Advocate, Europe 

Director, Office of Investigations 

Commandant, The Judge Advocate General's Schoo

76 
single facet of continuing legal education now in existence 

considered by the civilian bar which has not been fully observ

School for some years. The results have been outstanding 

quality of legal service which is now being provided in the 

traceable to this continuing effort on our part to keep our 

practitioners prepared to render complete legal service to th

manders. At the same time, there is one aspect of the matt

has not been fully satisfactory. I refer to the fact that, w

Judge Advocate General's School has been and is open to fu

education of military lawyers of our sister services, this opp

has not been seized upon to the extent which might be expected

is no other facility in the United States which can offer the 

advanced schooling provided by The Judge Advocate General

The benefit which could be realized by judge advocates of the N

Air Force is, I believe, beyond question. I should not like 

marks to be interpreted as indicating a complete lack of part

by the Navy and Air Force in the activities of The Judge A

General's School, because this is not the case. It is a fact, 

that the great preponderance of students at the School are 

Army. For example, in fiscal year 1963 only 37 Navy and 

Force attorneys graduated from courses at the School, whe

Army attorneys graduated. It is highly desirable, in my opi

the other military services to provide a substantially equal p

tion and contribution to the operation of the School. The q

legal service throughout the Department of Defense will und

benefit by this action. It is hoped the other military departm

see their way to avail themselves of the clear invitation ext

them. 

CHARLES L. DECKER, 

Majo1' Gene1'al, DSA, 


The Judge Advocate G

EXHIBIT A 


Cases forwarded to CMA__________________ _ I>eniam__________________________________ _ 

Opinions ________________________________ _ 

Affirmed_________________________________ _ Iteversed ________________________________ _ 

Percent of reversals to total cases___________ _ 

Percent of reversals to grants ______________ _ 

'Clvillans not used on boards of review. 

2,337 

2,018 

319 

184 

135 

5. 77 

42.3 

1,638 

1,408 

230 

90 

140 

8.54 

60.8 

EXHIBIT B 


2. Reduction in grade: 

From E-4 or lower ____________ 

From E-5 or higher- __________ 11,113 

902 

92.5 

7. 5 --

--

TotaL_____________________ 12,015 ---------­ 

3. Forfeiture of pay: Of $74 or less_________________ 

Of $75 or more ________________ 18,528 

1,298 

93.4 

6. 6 --

--

TotaL_____________________ 19,826 ---------­ 

4. Detention of pay: 

Of $149 or less________________ 711 84. 5 --

Of $150 or more ______________ 130 15.5 --

TotaL_____________________ 841 ---------­ 

5. Correctional custody: 7 days or less _________________ 72 39.3 --

8 days or more________________ 111 60. 7 --

TotaL_____________________ 183 ---------­ 

6. Extra duties: 

14 days or less________________ 

15 days or more ______________ 22,285 

1,728 

92.8 

7.2 --

--

TotaL_____________________ 24,013 ---------­ 

7. Restriction: 

14 days or less________________ 

15 days or more ______________ 22, 127 

2,288 

90. 6 

9.4 --

--

TotaL_____________________ 24,415 ---------­ 

8. Written Adm or Rep ______________ 

9. Oral Adm or Rep_________________ 1,253 

7,258 ---------­

---------­
I Of appeals. 


86 
Report 

of 


THE JUDGE ADVOCATE GENERAL 


of 


THE NAVY 


January 1, 1963, to December 31, 196

Courtsmartial of all typesgeneral, special, and summa

vened within the Navy and Marine Corps totaled 39,033 in fi

1963 as compared to 45,529 in fiscal year 1962. This repre

overall decrease of 6,496 cases, or 14.2 percent. Since service s

have remained relatively unchanged, a decrease in courts-mar

load may be attributable to Public Law 87-648 which incre

Article 15, UCMJ, nonjudicial punishment authority of co

ing officers. The new article 15 has received universal c

approval, with many noting an improvement in discipline. 

the relatively short period of time that the new article 15 

in effect, it is apparent that not only are we saving man

people from criminal records, but discipline and morale a

enhanced. 

Navy Boards of Review received for review during fis

1963, 420 general courts-martial and 2,806 special courts-m

compared to 386 general courts-martial and 2,783 specia

martial during fiscal year 1962. Again, as during the preced

in over half-55 percent of the cases reaching Board of Rev

accused requested representation by appellate defense cou

more detailed statistical report is attached as exhibit A. B

Review continue to modify sentences as is their statutory r

without benefit of the personal observations and studies ava

brig authorities and clemency boards. The sentence as adju

the court and approved by the convening authority who 

accused as well as his service record available, and the sen

approved by the Board of Review which normally has only 

ord of trial before it, is often difficult to reconcile. Th

another aspect to the sentencing problem I made reference 

year's report and which needs continuing study. 

Despite the slight increase in the number of cases over the p

year, the trend away from general courts-martial continu

reluctance on the part of command to refer a particular c

general court-martial may be attributable to the requiremen

article 32 pretrial investigation, which often assumes the pro

of a full-scale trial. As such, it is time consuming as well 
courtsmartial. In addition to providing an accused befor

court-martial with qualified counsel when he requests it, and 

legislation is currently pending, there is need to restudy a

the Code. 

The Navy-Marine Corps Judiciary Activity, activated 

1962, with its principal office headquartered in Washington 

offices geographically located around the world, provide

selected Judiciary Officers to sit as law officers on gene

martial convened within the Navy and Marine Corps. 

quested, and as their general court-martial docket permit

available to serve as presidents of special courts-martial. 

of the Judiciary Program there has been a marked re

reversals due to law officer error, with a concomitant savi

hours and money as well as an improvement in the quality 

administered in the Navy. The experience under the Judic

Program has shown that the objectives which led to its ad

being realized. 

My Assistant Judge Advocate General for Military J

tinues to issue his informal newsletter to all Navy and Mari

in order that justice be better served throughout the Naval 

ment. His timely comments on the current state of the l

as his suggestions for procedural improvements have been w

in the field. He recently provided all Navy and Marine la

an instructional guide for presidents of special courts-ma

ing the more commonly encountered offenses and their usual 

defenses. 

Amendments to the Uniform Code of Military Justice d

prior Code Committee meetings and made part of last ye

report have been overtaken by events. In August 1963, Sen

joined by other Senators on both sides of the aisle, introduc

each aimed at amending the Uniform Code bf Military Ju

proposed legislation was the aftermath of extensive hearin

Senator Ervin as chairman of the Subcommittee on Co

Rights of the Committee on the Judiciary of the U.S. 

February and March of 1963. The Military Justice Divisi

90 
vision of the Judge Advocate General, continues to offer i

courses of instruction in the fundamental principles of militar

and procedures under UCMJ. Six regular classes are con

the Justice School in Newport and one class is convened 

Pendleton, Calif., each year. 

·While the primary mission of the school is to train line 

corps officers of the Navy and Marine Corps, newly comm

Navy lawyers secure their training in military justice and pr

at the school, as do Coast Guard officers. As a secondary mis

as part of the continuing program for common specialist tra

Armed Forces personnel, the school trains enlisted personn

Army, Navy, Air Force, Marine Corps, and Coast Guard i

microphone court reporting and legal clerkship duties. The 

faculty, while predominantly Navy, has Marine, Army, and A

personnel assigned. During fiscal year 1963, 2,153 stude

graduated, an increase of some 30 percent over the number 

during 1962. Additionally, 597 officers received instruction e

tailored to meet the needs of senior officers. 

For many years now I have advocated a Judge Advocate 

Corps in the Navy. Legislation introduced in prior sessions 

gress after clearing the Department of Defense and the Bure

Budget have died in Congress without hearing. The need to 

an organizational envelope for the Navy lawyers in order t

them professional prestige and status as well as identification 

acute. One of Senator Ervin's bills would provide for a Nav

Advocate General Corps. Early passage of this bill should 

support of all concerned. In the foreseeable future our seaso

yers will be leaving by reason of statutory retirement and 

There is therefore urgent need to improve the retention rate 

anticipation of the future need throughout the Navy for legal 

Enactment of Corps Legislation will go far towards impro

existing situation. 

1V. C. MOTT, 

Real' Admiral, U EN, 

The Judge Advocate Ge

721-741--64----7 

EXHIBIT A 

Special courts-martial 

Received for review under article 66____________________ 2, 8

Received for review under article 65c____________________ 

Reviewed in the field__________________________________ 12,9

Total ______________________________________________________

Summary courts-martial 

Received for review under article 65c____________________ 

Reviewed in the field__________________________________ 22, 7

Total ______________________________________________________

Total all courts-martiaL___________________________________

Board of review actions 

On hand for review 1 July 1962__________________________ 

Received for review during fiscal year 1963______________ 3,22

Total on hand______________________________________________

Reviewed during fiscal year 1963________________________ 3,20

Pending review on 30 June 1963________________________ 1

Total______________________________________________________

Findings modified by boards of review during fiscal year 

1963________________________________________________ 6

Requests for appellate counseL_________________________ 1, 8

U.S. Court of Military Appeals actions: 

Petitions granted_______________________________________ 2

Petitions denied_______________________________________ 25

Total petitions acted upon___________________________________

Cases certified to USCMA by JAG______________________________

Report 

of 


THE JUDGE ADVOCATE GENERAL 


of 


THE AIR FORCE 


January 1, 1963, to December 31, 1963 

pg y

in the following table: 

Total________________________________________________________

Referred to Boards of Review pursuant to article 66_____________

General Court-Martial records__________________________ 

Special Court-Martial records___________________________ 

Examined pursuant to article 69_______________________________

The Boards of Review modified the findings and/or sentence in 

o. The following table shows the workload of the Boards o

during the period: 

On hand 30 June 1962______________________________________ 

Referred for review________________________________________ 

Reviewed and dispatched___________________________________ 

Pending 30 June 1963_______________________________________ 

o. During the fiscal year, 67 percent of the accused whose c

reviewed in the Office of The Judge Advocate General, pu

article 66, requested representation by Appellate Defense 

before Boards of Review. 

d. The following table shows the number of cases forward

United States Court of Military Appeals pursuant to the t

divisions of the Uniform Code of Military Justice, Articl

and the number of petitions granted during the period: 

Cases reviewed and dispatched by Boards of Review_____________

Cases forwarded to USCMA___________________________________

Number cases based on petitions________________________ 

Number cases certified by TJAG________________________ 

Percent total forwarded of total cases reviewed_________________

Petitions granted _____________________________________________

Percent petitions granted of total petitioned____________________

Percent petitions granted of total cases reviewed by Boards 

Review_____________________________________________________
court-martial. 

3. During the last several months of 1963 a project has b

way with participation of Army, Navy, and Air Force, to 

Manual for Courts-Martial on the basis of statutes, Executi

and case law which have intervened since the publication in 

is anticipated that a draft will be ready for Presidential con

early in 1964. 

4. The new article 15 increasing the authority of design

manders became effective 1 February 1963. An Execut

signed 29 January 1963, promulgated the necessary proced

in a new chapter XXVI, MGM, 1951. Instructions prescri

and procedures for imposing nonjudicial punishment were 

and distributed. Production is near completion on training 

5582, "The Uniform Code of Military Justice, Article 15-N

cial Punishment." This film will inform Air Force person

background of the new article 15 and will portray examples o

ble use and appropriate administration. 

5. Maj. Gen. M. R. Tidwell, Jr., the Assistant Judge Advo

eral, retired during this year and Brig. Gen. Robert 1V. :

ceeded him. :Maj. Gen. Albert ]\1. Kuhfeld, The Judge 

General, and General :Manss made staff visits to numerous S

Advocate offices in the United States and overseas as re

Article 6(a), Uniform Code of :Military Justice. General

and :Manss also attended various bar association meetings 

before numerous civic, professional, and military organizat

6. On 30 June 1963, there were 1,286 Judge Advocates 

duty in the U.S. Air Force. Of these, 584 were members of 

lar Air Force, 268 were Career Reserve officers, and 431 we

officers with an established date of separation. The over

officers in The Judge Advocate General's Department du

was almost double the gains. During the year, a select

was convened to consider 686 applications for direct appoi

Reserve officers. Due to strength limitations, only 110 of t

100 
trays to Air Force personnel the importance of conductin

fmancial affairs in a responsible manner and emphasizes the pro

of the worthless-check law incorporated in Article 123a, U

Code of Military Justice. 

b. Production is underway on training film TF-5581, "The S

and Sailors' Civil Relief Act." This film depicts a sequence o

problems in the affairs of several airmen and the applicability 

Soldiers' and Sailors' Civil Relief Act. It also contains an ex

tion of the general provisions of the act. 

o. The Judge Advocate General's office supervised and arr

on behalf of all of the armed services, for the publication of De

of the U.S. Court of Military Appeals and Selected Decisions 

Boards of Review of all the services in the Court-Martial R

The same service was also performed in regard to publishin

opinions of the armed services and opinions of the Army a

Force Exchange Service in the Digest of Opinions. 

ALBERT M. KUHFEW, 

J11ajor General, USAF, 


The Judge Advooate Gen

Report 

of 

THE GENERAL COUNSEl 

of 

THE DEPARTMENT OF THE TREASURY 


(UNITED STATES COAST GUARD) 


January 1, 1963, to December 31, 1963 

This report of the General Counsel of the Treasury Depar

submitted pursuant to article 67(g) of the Uniform Code of 

Justice, 10 U.S.C. 867(g). 

The sharpest decrease in total court-martial volume since 1

recorded for the fiscal year 1963. The decline in courts refle

influence of the amended article 15 which increased the po

commanding officers to impose punishment for minor offenses 

recourse to a court-martial. Although in effect for only th

months of the fiscal year, the new law brought about an im

decline in summary courts. 

The following table shows the type and number of court

records received during each of the past 5 fiscal years: 

19611 196$ 1961 196

General courts-martiaL ___________________ 6 4 4 

Special courts-martiaL ____________________ 139 148 162 15

Summary courts-martiaL__________________ 448 683 586 66

Total_____________________________ 593 835 752 83

For the whole year there were approximately 18 courts-ma

every 1,000 persons in the Coast Guard, with summary cou

accounting for three-quarters of the total. 

Of the 139 special courts-martial, final action was taken in 

by the General Counsel as supervisory authority and in 85 cas

officer exercising general court-martial jurisdiction as supervi

thority. The remaining 21 cases involved sentences to a bad

discharge and required submission to the Board of Review, pur

article 65 (b) of the Code. 

Review by the Board of Review was accomplished in 27 case

Board reviewed 6 general courts-martial in addition to the 21 

courts-martial. The accused in 12 of these cases requested 

furnished representation by appellant defense counsel. Fou

general courts-martial were automatically referred to the B

Review pursuant to article 66, while the remaining two, wh

not involve punitive discharges, were referred for review p
the 21 bad-conduct discharges imposed by special courts

were suspended on probation by the convening authorit

set aside by the Board of Review; 2 were remitted by th

Counsel, 1 outright and the other on probation; and 3 were di

by the Secretary of the Treasury. In summary, out of a 

punitive discharges, only 10 survived departmental review; 

of these the accused has a petition pending before the Cou

tary Appeals. Fewer than one in every 3,000 persons of 

Guard received a finally approved punitive discharge. 

The average general court-martial confinement imposed 

months. The average special court-martial confinement ad

Board of Review cases was 4.5 months. Appellate review 

or the convening authority reduced the periods of confin

judged by three of the general courts-martial and eight of 

courts-martial. Of the 27 cases referred to the Board of R

findings and the sentence in only 6 were unchanged after dep

review had been completed. 

G. D'ANDELOT 

General Ooun

Treasury Dep

106 U,S. GOVERNMENT PRINTING OF