and 

THE JUDGE ADVOCATES GEN

of the 

ARMED FORCES 


and Ihe 

GENERAL COUNSEL 


of the 

DEPARTMENT OF THE 


TREASURY 


PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUST

For the Period 

January I, 1966 10 December 31, 19

THE JUDGE ADVOCATE GENERAL'S SCH

LIBRARY 
ollhe 

SENATE AND OF THE 


HOUSE OF REPRESENTATIVES 


and 10 Ihe 

SECRETARY OF DEFENSE 


AND SECRETARY OF THE TREASUR

and the 


SECRETARIES OF THE DEPARTMENTS OF TH

ARMY, NAVY, AND AIR FORCE 


PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 


For the Period 


January I, 1966 to Decemher 31, 1966 

JOINT REPORT OF THE UNITED STATES COURT OF MILITAR

AND THE JUDGE ADVOCATES GENERAL OF THE ARM

AND THE GENERAL COUNSEL OF THE DEPARTMEN

'TREASURY 

REPORT OF THE UNITED STATES COURT OF MILITARY AP

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE A

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE N

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE A

REPORT OF THE GENERAL COUNSEL OF THE DEPARTMEN

TREASURY (UNITED STATES COAST GUARD) 
THE JUDGE ADVOCATES GENERAL 


OF THE ARMED FORCES 


and 

THE GENERAL COUNSEL OF THE 

DEPARTMENT OF THE TREASURY 

January 1, 1966 to December 31, 1966 

The following is the 15th annual report of the Committe

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

867(g). That article requires the Judges of the U.S. Cour

tary Appeals, The Judge Advocates General of the Arme

and the General Counsel of the Department of the Treasur

annually to survey the operation of the Code and to prepare 

to the Committees on Armed Services of the Senate and of t

of Representatives, to the Secretary of Defense, the Secreta

Treasury, and to the Secretaries of the Departments of th

Navy, and Air Force with regard to the status of military ju

to the manner and means by which it can be improved by l

enactment. 

The Chief Judge and the Judges of the U.S. Court of Mil

peals, The Judge Advocates General of the Army, Navy, and A

and the General Counsel of the Department of the Treasur

after referred to as the Code Committee, have met and con

the call of the Chief Judge several times during the perio

report. These conferences included a full consideration o

tive amendments to the Uniform Code of Military Justice 

with the policy and purpose of this Committee. 

As noted in our last report, Senator Sam J. Ervin, Jr., Ch

the Subcommittee on Constitutional Rights of the Committ

.Tudiciary, United States Senate, introduced 18 bills in the 

January 26, 1965. The stated purpose of the bills was to p

constitutional rights of military personnel. Subsequently 
reserves judgment on the proposed report and new legis

looks forward to the opportunity to examine and comment 

proposals. If all or a substantial portion of the 18 bills 

by Senator Ervin are enacted the services will need a sub

crease in the number of military lawyers. Legislation shou

means to obtain and retain sufficient career lawyers to mee

requirements for legal services. 

In our last three reports we noted that the Department 

recommended, as substitutes for certain bills pertaining t

justice, legislative proposals designated as "F", "G", and "

were discussed and attached to our reports for the years 196

and also discussed in our last report. 'Ve note that durin

Senate hearings the "G" and "H" bills were almost unanim

dorsed by witnesses who testified or submitted written sta

behalf of a number of civilian bar associations, veterans org

and other groups. The Code Committee continues to recom

islation embodying the substance of those bills and feels th

some degree of urgency in this regard. 'While the Unifor

Military Justice appears to be working satisfactorily in Vie

did in Korea, operations in Vietnam reinforce our belief 

ment of the proposals contained in the "G" bill, in particu

have a salutary effect upon the administration of military 

that area of conflict as well as generally throughout the a

ices. Judge Ferguson continues to have reservations, as 

our report for the year 1962, concerning the desirability o

pects of the proposals contained in the "F" and "G" bills. 

Turning to developments in the House of Representati

designated as H.R. 16115, 89th Congress, was introduced o

1966, by Representative Charles E. Bennett of Florida. 

embodied the "F" bill and most of the substantive provisi

Senate bills but followed the "G" and "H" bills where the 

overlapped with those two bills. This is the first time th

bill has been formally introduced in either House of Co

report on this bill, which has been prepared by the Departm

2 
of principal concern at this time, the Executive Order w

future application in any geographical area designated as 

fire area. This is the only change in the Table of Maximu

ments which the commanders concerned have generally reco

or feel to be warranted as a result of the conflict in Vietnam. 

sion of the limitations on all offenses as to which the Table 

mum Punishments 'was suspended during the Korean co

considered and rejected. 

The sectional reports of the Court and of the individu

outline the volume of court-martial cases subject to appell

during the reporting period. Exhibit A is attached to re

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

world, the number of such cases which are reviewed by boa

view, and the number ultimately reviewed by the United St

of Military Appeals. 

Respectfully submitted, 


ROBERT E. QUINN, 


Ohie

HOMER FERGUSON, 

Associat

PAULJ.KILDAY, 

Associat

ROBERT H. MeCAw, 

The Judge Advocate Gene

United State

'VILFRED llEARN, 

The Judge Advocate Gene

United State

ROBERT 'V. ::I'tiANSS, 

The Judge Advocate Gene

United States A i

FRED B. S1\UTH, 

GeneralOoun

Department of the T
ArulY _________________________________________________________

Navy _________________________________________________________

Air Force _____________________________________________________

Coast Guard __________________________________________________

Total ___________________________________________________

Oases Revieu:ed by Boards at Review 

ArlllY _________________________________________________________

Navy _________________________________________________________

Air Force _____________________________________________________

Coast Guard ___________________________________________________

Total 

Oases Docketed u:ith U.S. Oourt at Military Appeals 

ArlllY _________________________________________________________

Navy _________________________________________________________

Air Force _____________________________________________________

Coast Guard __________________________________________________

Total ___ .._______________________________________________

4 
Justice, Article 67 (g), 10 USC § 867 (g), the Chief Judge 

ciate Judges of the United States Court of Military Appeals 

submit their report on military justice matters to the Comm

Armed Services of the United States Senate and House 

sentatives, the Secretary of Defense, the Secretary of the 

and the Secretaries of the Departments of the Army, Navy 

Force. 

On April 28, 1966, President Lyndon B. Johnson forward

United States Senate the nomination of Chief Judge Robert 

for reappointment for the term of fifteen (15) years, expi

1,1981. The Committee on Armed Services of the United S

ate unanimously reported approval of the nomination on :Ma

Without objection, the nomination was confirmed by th

States Senate on :May 16, 1966. On that date, President 

pursuant to the provisions of Title 10, United States Cod

867, designated Judge Quinn to be Chief Judge. 

II 

This report marks the completion of the fifteenth year of th

operations and the commencement of its sixteenth term. I

ishing caseload marks not only a decrease in the overall cou

rate in the Armed Services but also the rising sophisticatio

who are charged below with the actual administration of mi

tice on its more basic levels. It is gratifying to note the 

attention being paid at the trial level-particularly among t

sionallaw officers of the services-to procedural and substan

ters in order that the number of errors may be reduced and 

reversals brought to an all-time low. Nevertheless, no syste

tice is ever perfect, nor can it hope, by maintaining a static 

wholly to eliminate its faults. Hence, it is to be hoped that t

Services, guided by this Court, will continue to strive in ever
The United States Court of Appeals for the District o

Circuit in a decision rendered on May 24, 1966, rejected 

tion, pointing out the reasons, historical and otherwise, for 

tion between the two classes of appellants. See Exhibit 

of the Court's decision. On October 10, 1966, the Suprem

the United States denied appellant's petition for a writ o

thereby terminating the litigation (385 U.S.C. 881, 17 L. 

87 S. Ct. 167). 

In like manner, certiorari was denied by the Suprem

Orawford v. United States, 380 U.S. 970, 14 L. ed. 2d 28

1349 (1965), in which an attack was leveled on this Cour

that Private Crawford had not been denied his right to en

bers on his court-martial through his convening authority

selecting such members from noncommissioned officers of th

grades. See United States v. Orawford, 15 U.S.C.M.A. 31,3

IV 

During fiscal year 1966, 796 cases were docketed with 

Twelve were forwarded on certificates of the Judge Advoca

of the Armed Services. No mandatory appeals involving 

tences or general or flag officers were filed. The Court g

petitions, reversing in 51 of these cases. 

During the calendar year 1966, the Court admitted 738 p

to its roll of attorneys, bringing the overall number admitte

In addition, certificates of honorary membership in ou

awarded to 8 attorneys of allied nations, working close

Armed Forces of the United States. 

v 

The Judges continued their practice of maintaining c

with officers in the field and others involved in the admin

military justice. Associate Judge Homer Ferguson met 

advocate officers in Spain and Iran during a trip to Tehra

6 
384 U.S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602 (1966), and Es

State of Illinois, 378 U.S. 478,12 L. ed. 2d 977, 84 S. Ct. 175

in the field of confessions and admissions. 

During the year, the Court was honored by visits from a n

foreign dignitaries including Commodore Philip Opas, 

Judge Advocate General of the Australian Air Force; Colone

Mong Bich, Director of Military Justice, Vietnamese Arm

Phan The N goc, Chief, Legal Section, Vietnamese Army; an

Johng Koo Kim, the Assistant Judge Advocate General, Re

Korea Army. 

VI 

On March 1, 1966, the Chief Judge and Associate Judges 

before the Subcommittee on Constitutional Rights of the C

on the Judiciary and a Special Subcommittee of the Com

Armed Services, United States Senate, in connection with 

hearings on a number of proposed amendments to the Unif

of Military Justice. The Judges testified at length conce

provements in the administration of military justice and th

field of administrative discharges from the Armed Forces. 

eral, their testimony favored enactment of the proposed le

Copies of their statements and testimony are included he

ExhibitC. 

VII 

In conclusion, it would appear that, in general, the adminis

military justice has continued to improve during the past y

are certain that, where faults are found and pointed out, i

steps will be taken below to eliminate them. ",Ve shall proce

task of seeing that military discipline is fairly and justly m

confident in the support of the Congress and of the Armed S

executing the responsibilities which have been settled upon t

247-205--67----2 
8 
CASES DOCKETED 


Total as of July I, 1964, July I, 1965, 

June 30,1964 to to 

June 30, 1965 June30,1966 

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

Arrny-----------------------­ 9,625 471 402 

~avy----------------------- 3,968 245 229 

Air Force _____________________ 4,021 204 150 

Coast Guard __________________ 45 1 

TotaL____________________ -­

3 

17,659 921 784 

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

Arrny-----------------------­ 138 4 5 

~avy----------------------- 198 5 5 

Air Force _____________________ 70 5 2 

Coast Guard __________________ 6 0 0 

TotaL ______________________ 412 14 12 

Mandatory (art. 67(b)(1)): 

Arrny-----------------------­ 31 0 0 

~avy----------------------- 3 0 0 

Air Force ______________ - - ----­ 3 0 0 

Coast Guard _______ - _____ - - --­ 0 

TotaL ______________________ 

0 0 

37 0 0 

Total cases docketed _________ 18, 108 935 796 

Footnotes at end of table. 
I>isposed of by order setting 

aside findings and sentence___ _ 3 o 

Remanded to board of review __ _ 153 10 

Court action due (30 days) 3 ___ _ 38 47 4

Awaiting replies 3_____________ _ 25 20 

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

Opinions rendered ____________ _ 401 12 

Opinions pending 

3____________ _ 

Withdrawn__________________ _ 

Remanded___________________ _ 

1 

7 

2 

2 

o 

o 

I>isposed of by order__________ _ 1 o 

Set for hearing 3 ______________ _ o o 

Ready for hearing 3 ___________ _ o o 

Awaiting briefs 3______________ _ 1 2 

Mandatory (art. 67(b)(1)): 

Opinions rendered ____________ _ 37 o 

Opinions pending 3 ____________ _ 

Remanded___________________ _ o 

1 

o 

o 

Awaiting briefs 3______________ _ o o 

Opinions rendered: 

Petitions_____________________ _ 1,587 83 9

Motion to dismiss _____________ _ 11 o 

Motion to stay proceedings ____ _ 1 o 

Per curiam grants_____________ _ 30 6 

Centificates__________________ _ 353 11 1

Certificates and petition~ ______ _ 46 1 

l\hndatory__________________ _ 

Remanded___________________ _ 37 

2 

o 

o 

Petitions for a new triaL ______ _ 2 o 

Petitions for reconsideration of: 

I>enial order_____________ _ 

Opinion_________________ _ o 

o 

3 

o 

Petition for new triaL_____ _ 1 o 

Motion to reopen _____________ _ 1 o 

Petitions in the nature of writ 

of error coram nobis_________ _ o o 

Total____________________ _ 2,071 104 11

Footnotes d end of table. 

10 
p_____________ _ 

Without opinion__________ _ 

Disposed of by order setting 

aside findings and sentence__ _ 

Writ of error coram nobis by order______________________ _ 

Motion for bail denied _________ _ 

Remanded to board of review __ _ 

TotaL_____________________ _ 

Opinions pending___________________ 

8 

40 

3 

1 

o 

154 

o 

o 

o 

1 

o 

10 

o 

o 

2 

o 

1 

5 

17,999 945 805 

Pending completion as ofJune 30, 1964 June 30, 1965 Ju

20 10 

Set for hearing ____________________ 0 0 

Ready for hearing_________________ 1 1 

Petitions granted--awaiting briefs ___ 10 9 

Petitions--court action due 30 days__ 38 47 

Petitions--awaiting replies __________ 25 20 

Certificates--awaiting briefs_________ 1 2 

Mandatory--awaiting briefs _________ 

TotaL______________________ 

0 0 

95 89 

I 2 flag officer cases; 1 Army and 1 Navy. 


J 19,521 cases actually assigned docket numbers. Overage due to multiple actions on the sa

I As of June 30, 1964, 1965, and 1966. 


• 2,294 cases were disposed of by 2,275 published opinions. 120 opinions were rendered in c

67 Army officers, 29 Air Force officers, 16 Navy officers, 5 Marine Corps officers, 2 Coast Guar

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

concerned enlisted personnel. 
-----

ROBERT G. GALLAGHER, APPELLANT 

V. 

ROBERT E. QUINN, ET AL., JUDGES OF THE UNITED STATES COUR

ApPEALS, ET AL., APPELLEES 

Appeal from the United States District Court for the District of 

Decided May 24, 1966 

Mr. Richard A. Baenen for appellant. 

Mr. Richard S. Salzman, Attorney, Department of Justice, with w

Attorney General Douglas, Messrs. David G. Bress, United States 

Morton Hollander, Department of Justice, were on the brief for 

Frank Q. Nebeker, Assistant United States Attorney, also entered 

for appellees. 

Before FAHY, BURGER and LEVENTHAL, Oircuit Judg

FAHY, Oircuit Judge: The appeal is from an order of the Dis

missing a complaint for a mandatory injunction, and for other re

the Judges of the United States Court of Military Appeals to 

merits the record of appellant's conviction, when a private in 

robbery in violation of the Uniform Code of Military Justice, 1

,The conviction and sentence were affirmed by a board of review 

the Judge Advocate General of the Army.' He petitioned the Co

Appeals to review the record. On consideration and reconsiderat

tion the court denied review. United States v. GaUagher, 15 U.S

C.M.R. 363. He contends now in the civil courts that he has bee

protection of the laws in violation of the Due Process Clause of th

ment because the Court of Military Appeals is required to revie

which a sentence, as affirmed by a board of review, affects a g

officer, whereas it is not required to review other cases, inclu

unless the sentence is death. 

Thus, 10 U.S.C. § 867(0) provides: 

(0) The Court of Military Appeals shall review the record i

1 The sentence was confinement at hard labor for one year, a bad co

forfeiture of pay and allowances, and reduction to the lowest enllsted gr

tary of the Army suspended and later remitted the unserved portion of 

cluding bad conduct discharge. This followed appellant's restoration to 

request to enable him to "earn an honorable discharge." Appellant therea

from active service as a specialist, 4th class (equivalent to corporal), w

discharge. 

12 
Act of Congress under which the court-martial or other military tria

They involved alleged errors in the conduct of the trials, the use 

corpus as a remedy;" and in two instances the creation of the trib

one of the matters considered. 

Appellant does not challenge the trial itself. He challenges only th

tional validity of the Act of ()()ngress which denies him review of ri

Court of Military Appeals when such review is accorded to a gene

officer. In this respect he raises a question which more closely rese

considered in E;c parte Quirin, than in the other cases cited, althoug

in E;c parte Quirin was raised by the time honored method of habe

It would seem clear that the District ()()urt in our case could ha

the constitutional question were petitioner in detention under the se

were he proceeding by way of habeas corpus. The question is whethe

must disclaim jurisdiction to decide the question because it is rais

not in confinement but whose case, nevertheless, is alive and presents 

"controversy." None of the cases relied upon by appellees flatly 

there is no jurisdiction in such a case; and none in which it is stat

the area of military jurisprudence habeas corpus is the sole availab

challenge the proceeding involves a constitutional challenge to an Act o

The Constitution vests in Congress the power "To make Rules' fo

ernment and Regulation of the land and naval Forces," U.S. Const. 

210 U.S.C. § 876 provide,,: 

... sentences by courts-martial following approval, review, or affirmation 

by [the Uniform Code of Military Justice] are final and conclusive .•• b

all departments, courts, agencies, and officers of the United States, sub

action upon a petition for a new trial as provided in section 873 of this t

73) and to action by the Secretary concerned as provided In section 874 •

authority of the President. 

However, In Gusik v. Schilder, 340 U.S. 128, 132, It Is held that the langua

upon all departments, courts, agencies, and officers of the United States," pre

"the terminal point for proceedings within the court-martial system," and does 

the civil courts of their jurisdiction of courts-martial In habeas corpus procee

see Burns v. Wilson, 346 U.S. 137, 142. 

8 That the decision of a court-martial Is open to collateral attack, other than 

corpus proceeding, see, e.g., Gusik v. Schilder, 340 U.S. at 133 n. 3. . 

• Burns v. Wilson, 8upra note 2; Gusik v. Schilder, 8upra note 2; In re Yam

U.S. 1; EiIJ parte Quirin, 317 U.S. 1; Wale8 v. Whitney, 114 U.S. 564; Sha

State8, 93 U.S. App. D.C. 300, 209 F. 2d 811; Bu,.ns v. Lovett, 91 U.S. Ap

202 F. 2d 331; Gold8tein v. John8on, 87 U.S. App. D.C. 159, 184 F. 2d 342, 

340 U.S. 879. 

" Wale8 v. Whitney, 8upra n. 4 . 

• In re Yamashita, 8upra n. 4 and EiIJ parte Quirin, 8upra n. 4. 

• Habeas corpus is unavailable to appellant since he Is no longer in custody. 

Is not moot since appellant's conviction stands and part of the sentence impos

remains In elrect. 
tary tribunal. The "separate and apart" military law jurispruden

in those terms in Burns v. Wilson, supra n. 2, at 140, would appear 

rated so far from possible Supreme Court scrutiny. 

Assuming as we do that the District Court, on the complaint of 

finement, may consider the constitutional validity of the review 

the Court of Military Appeals applicable to his case,' the "clear 

unconstitutionality, held by the Supreme Courlt in Em parte Quir

to be required before a civil court will upset the action of a mil

fails to emerge. 

Chief Justice Warren, writing for the Court, recently said: 

Equal protection does not require that all persons be dealt w

but it does require that a distinction may have relevance to t

which the classification is made. 

Baxstrom v. Herold, --U.S. --. 

Appellant's petition for review was considered and reconsidered 

of Military Appeals prior to its denial. Moreover, petitioner is not 

though partial remedies within the military establishment. See G

er, supra n. 2, and Burns v. Wilson, supra n. 4.· Though these re

supply the complete answer to his constitutional challenge they 

dimensions of the statutory distinction of which he complains; a

sions of the distinction bear upon the due process issue. The dis

comparable to the disadvantage imposed upon an indigent becaus

condemned in Griffin v. Illinois, 351 U.S. 12; and see Douglas v. 

U.S. 313, where the discrimination was also due to indigency. 

The limited distinction here in question has a reasonable and 

fication. As pointed out by the Court of Military Appeals in 

opinion on the constitutional issue raised by appellant, the Presi

charged historically with the responsibility of approving any 

sentence involving a general or flag officer before execution of the s

requirement is now embodied in Article 71(a) of the Uniform Co

Justice, 10 U.S.C. § S71(a). Appellant does not challenge the v

8 The complaint in Its prayer for general relief may be construed as a req

atory judgment and related rellef. 28 U.S.C. §§ 2201-02. A declarator

been held available to obtain review of the procedure in a court-martia

where the defendant is not In custody. Jack80n v. Wilson, 147 F. Supp. 2

sen v. McGrath, 340 U.S. 162, 168-71. As to jurisdIction of the parties, u

see, also D.C. Code § 11-521 (Supp. V, 1966). 

• The administrative remedy provided by 10 U.S.C. § 874 Is not alone a 

swer to appellant's problem; for he seeks as of right, on a constItutiona

by the Court of Military Appeals of his convIction and sentence. Other re

afford no authority to anyone to grant the only relief he seeks In this lit

14 
1916, ch. 418, § 3,39 Stat. 658, and June 4, 1920, ch. 227, c. 2, 41 Stat

see the Elston Act of 1948, ch. 625, § 2'24, 62 Stat. 634-35. In view of 

ical statutory responsibility in the President to approve the sentence 

or flag officer, it is reasonable for Congress to afford the President t

previous review of the case by the Court of Military Appeals. Th

the Senate Committee on the bill establishing a Uniform Code of Mili

states : 

Automatic review before the Court of Military Appeals is prov

cases which must be approved by the President. 

S. Rep. No. 486, 81st Cong., 1st Sess. 29 (1949). And see H.R. Re

81st Cong., 1st Sess. 32 (1949). 

The selection of general and flag officers is on nomination of the 

subject to Senate confirmation. These officers constitute only a frac

per cent of all officers, and a much smaller fraction of all military 

Where the President has participated in the appointment of those 

responsibility of a general or flag officer, the provision that he review a

by court-martial imposed upon his appointee is reasonable and, as we 

is here unchallenged. The conviction and sentence the President 

not that of a civil court. It affects one with whom the Preside n

mander-in-Chief has a special relationship, different from that whi

under the laws to other members of the armed services. The inter

latter are not neglected by this difference; indeed, their interests are 

considerations which support the reasonableness of the different trea

in question; for review by the President of cases involving genera

officers eannot be separated from concern for the interests of those 

they have been placed in positions of unusually great responsibility. 

In the Uniform Code of Military Justice, enacted since World 'Va

lishing the new civilian Court of Military Appeals, Congress has be

pains to afford to all members of the armed services review and co

error or injustice. With this before us, and also bearing in mind th

civil courts observe with respect to the separate area of law governin

and naval forces," Burns v. lVilson, 8upra n. 2, and the continuing re

of the President to approve a court-martial conviction and sentence o

or flag officer, the review provisions here challenged cannot be held t

reasonable or irrelevant as to violate the rights of appellant unde

Process Clause of the Fifth Amendment. 

,. The First Congress under the Constitution provided that the troops should 

be governed by the Articles of War previously established. Act of September 

25, § 4, 1 Stat 96. 

247-205-67--3 
U.S. SENATE, 

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS 

OF THE COMMITTEE ON THE JUDICIARY, 

SPECIAL SUBCOMMITTEE OF THE COMMITTEE ON ARMED S

Wa8

The sUbcommittee met, pursuant to recess, at 10 a.m., in room 222

Office Building, Senator Sam J. Ervin, Jr., presiding. 

Present: Senators Ervin and Javits. 

Also present: Senator J. Strom Thurmond of South Carolina. 

(There was a brief off-the-record discussion before the subcomm

the record.) 

Senator ERVIN. We will proceed. 

Our first witness is Robert E. Quinn, Chief Judge, U.S. Court o

peals. Judge, itis a pleasure to welcome you here. 

Judge QUINN. Mr. Chairman and members of the subcommittee 

to be here. 

I have a prepared statement and would like to submit it to the 

unless the committee desires me to read the statement-may I 

record? In the interest of time it would be just as well to sub

record. 

Senator ERVIN. We will leave it up to you-if you would rathe

statement we will put it in its entirety into the record immediat

testimony. 

Statement of Robert E. Quinn, Ohief Judge, U.S. Oourt of Mil

Washington, D.O. 

Judge QUINN. I am in agreement substantially with all the bill

your consideration of those bills. I think they are a step in the r

I have indicated that in three or four instances I thought they s

time of war as well as in time of peace. 

Wiith those amendments I would be in hearty agreement with 

posed amendments to the Uniform Code of Military Justice. 

Senator ERVIN. Judge Quinn, in this connection I have heard 

persons in the military suggesting that the Uniform Code of M

should be suspended in theaters of operation during times of war. 

Do you have any comments on that? 

Judge QUINN. If I may digress a minute--I see no need for a

I think in time of war the need for protection is more necessary t

peace. 

16 
their searching inquiries into this vast and important field of la

ml'nd them also for the monumental program of improvement 

recommended. If the work of all the subcommittees of Congress 

and as fruitful as the work of the subcommittees that have pr

bills under consideration, the people of the United States may ta

in the knowledge that Congress will continue to function effe

efficiently in this age of multiple and complex legislation. 

AS TO THE BILLS 

S. 745. To provide for military judges for general courts-m

bill is generally desirable. A number of provisions may ne

considl'ration. a. Assignment by the Judge Advocate Genl'ral: It would appl'

to allow the Judge Advocate General to delegate responsibility to 

principal assistants. 

b. Eligibility: Extend inl'ligibility in a particular case to apP

a witness for the defense, as well as for the prosecution, as now p

c. Eliminate consultation with court members on the form of 

unlleceHsary and inconsistent with gl'nl'ral criminal practice. 

d. Eliminate the "time of war" I'xception as to assignmen

jlldical duties. The need for a full-time judge is pl'rhaps grea

time, than in peacetime, because of the probable increase in th

Also, the provision raises a serious question as to its applicabili

time when Congress has not actually declared war, as providl'd 

stitution. See United States v. Ayers, 4 U.S.C.M.A. 220, 15 C.l\I.R

der the Ayers case, the present situation in South Vietnam may be 

,var." e. As to the amendment of article 66: Grounds for disqualifi

board of review member might be enlarged to allow a party 

disqualify the member for bias or prejudice or any other reason 

insure that the proceedings before the board of review be impa

Feld, A Manual of Courts-Martial Practice and Appeal (Kew Yo

Publications, 1(57). 

S. 746. To provide for a Judge Advocate General'.g Oorps for t

This provision is generally desirable. In my opinion, the establ

a sl'parate Judge Advocate Gl'neral's Corps will result in more e

I'ffective ll'gal service to the Navy. a. If all law specialists of the Navy are redesignated judge adv

change will have to be reflected in the Uniform Code of Milit

provisions rl'ferring to Navy law specialists, e.g., article 1(13), ar

and article 27 (b) (1) and (c) (2). 

b. A similar change may be necessary as to the term "legal offic

used in the Navy. 

S.747. Department of Defense Board for Oorrection of Military 

This provision seems generally desirable. a. It may be desirable to provide that the board may function 

of three. (See S. 748, Court of Military Review.) 

b. Instead of providing for finality of decision by the board, it w

desirable to allow an appeal from an adwrse decision to the U.S

Military Appeals, by both the individual and the Secretary of D
to prohibit criticism of counsel by the staff judge advocate 

professional conduct as inadequate legal re:,;earch and insuffic

tion for trial. 

b. If article 37 is to be effective as a deterrent against impro

influence, it should perhaps be framed as a punitive article, e

viding that willful conduct of the kind enumerated shall be p

court-martial may direct. 

S.750. Limitation on bad-conduct discharge and discharge les

able.-The bill is commendable. Again, however, I recommend 

of the "time of war" exception. See comment d on S. 745. It i

that the exercise of military power in time of war tends to be m

than in peacE'time. In certain areas, the tendency may perhaps 

However, the Uniform Code of Military Justice was occasioned 

able practices developed during World War II. 

S. 751. Petition for new trial. 

a. The extemdon of the Jl('riod within which to petition is 

b. The grounds for the petition might perhaps be enlarged to 

reason that would promote the intereRt of justice. See my diss

States v. BOllrehier, 5 U.S.C.~I.A. 15, 17 C.l\l.R. 15. 

S. 752. Limitation on bad-conduct discharge.-The basic p

desirable. a. Again, recommend eliminalion of the "time of war" excep

reasons set out in comment d on S. 745, and the remarks on S. 

b. The amendment of article 26 should provide that the law 

eligible to sit if he is a witness for either the prosecution or de

c. I think it preferable to eliminate the closed session confere

court members on the form of the findings. The practice wou

form to that in the Federal courts. 

d. In making the law officer's ruling on mental responsibili

cused subject to objection by the court members, I would add th

the merits" to distinguish that situation from one affecting 

competency to stand trial. 

S. 753. Jurisdiction in U.S. Court Of Military Appeals to rev

of boards for correction of military recordS.-The proposal 

worthwhile. In the interest of conserving judicial time and ex

Olllmend elimination of the provision limiting the action of th

of Military Appeals to issues certified by the Seeretary. On r

court, other issues may appear which are dispositive of the case

should be empowered to deal with these issues. 

S. 754. Due process in administrative actions.-Again, I que

visability or desirability of excepting the new protections acc

proposed bill "in time of war." See my comments on S. 745, 7

S. 755. Prohibits efficiency rating of member of board of r

otller member.-This provision seems generally desirable, and 

with the views expressed by the U.S. Court of Military Appea

States V. Deain, 5 U.S.C.M.A. 44,17 C.~I.R. 44. 

S. 756. Broaden constitutional protcction against double 

recommend that the protection be extended to provide that 

other than honorable be given, if based upon alleged miscondu

the individual was previously tried and acquitJted in a civil c

as in a court-martial. The extension is especially desirable in l

18 
1cith scparation with less than honorable diseharge.-The prop

erally desirable, subject to the following: a. A conviction in a civil court should be a basis for an und

charge only if the conviction is for a sl'rious crime. This mi

be defined as one which, if tried by a court-martial, would sub

dividual to a punishment extending to a punitive discharge and 

at hard labor for 1 year or more. b. Waiver of the right to plead the statute of limitations shou

if the individual is tried and acquitted of misconduct in a civil 

comment on S. 756. c. Excepting the protection of the provision "in time of war

deleted. 

S. 759. Minor offenscs; eliminate sttmmary court-martial.-T

is desirable. 

S. 760. Compel attendance of tcitne.yses (art. 46).-The propo

erally desirable. Howevl'r, it would appear that some protecti

be accordl'd a witness. The "L'niform Code of l\Iilitary Justi

worldwide. A witness ought not be required to go across the c

an outlying possession for the small witnl'ss fee that is u~ually 

haps, the statute should limit the compulsory feature to witnp

200 miles and located in the same State or Territory in which 

is returnable, rather than have the matter prescribed by rpgul

S. 761. Liability ot discharged personnel.-This is a dl'sirab

a. There is, however, no useful purpose served in subjecting a 

serviceman to a Federal courlt trial for a purl'ly military type 'offe

unauthorized absence (if the table of maximum punishment is 

the offense is theoretically punishable by confinement at hard lab

or diflObf'dience to a i;uperior officer. In my opinion, the offense

redefined. 

b. The discharged serviceman should not be tried if he was prl'v

for the same offense in a foreign court, as well as in a court o

UnUed States. This addition would be comdfStent with the doub

provisions of existing Status of Forces Agreements. 

S. 762. Subjecting civilians to trial in U.S. courts for violatio

form Code ot Military Justice outside the United StateS.-The 

desirable, but I have serious reservations as to its scope. a. The claf<s of offenses to which the bill applies should be 

narrowed. For example a Federal court should not be hurdene

ing a drunken drivillg case (art. 111, 'Gniform Code of i\Iilitary 

punishing a civilian for being an 'accessory after the fact to an u

absence (art. 78, Uniform Code of :\Iilitary Justice). 

b. Subjecting a civilian to the crimes and offenses provision 

134, Uniform Code of Military Justice, seems unnecessary. I

is one of extraterritorial applicability, the wrongdoer is alre

to the statute; if the statute is not one of extraterritorial appli

the act should not be made criminal by article 134, and thereby 

alter the traditional American approach to criminal conduct. 

Mr. CREECH. Jugde Quinn, I notice on page 2 of your statemen

suggest-imlarging the grounds for disqualification of a board of revi
Navy is in favor of a Judge Advocate's Corps. 

It has worked well in the Army. The Air Force officers appa

they do not want to separate-that they have the equivalent o

Certainly, the lawyers that I have anything to do with in the 

years have been in favor of a corps for the Navy. It seems to m

lawyers should be used for legal work. 

I was a deck officer in the Navy. I qualified under the law to 

a battleship, but I was not capable of doing it; and I do not t

lawyers are really trained to do anything except legal work, for 

In an emergency, lawyers can do many things, generally speak

to me, however, that their work should be confined to legal work 

another. Therefore, I think, there should be a Judge Advocate 

N"avy. 

Mr. CREECH. On page 3, S. 747, I note you say it would be desir

that the Defense Board for Correction of 1\:[ilitary Records unde

tion in panels of three. 

I wonder if you would care to expand that statement. 

Judge QUINN. The volume of work is sufficient that perhaps th

tion more effectively if they were able to sit in panels of th

Court of Appeals in the District of Columbia and the courts 'Of a

circuits of our country. 

I think they would perhaps be able to do their work with great

with greater efficiency; and that is why I suggest that I thought 

able to sit in panels of three. 

Mr. CREECH. You feel by requiring that the board be composed 

nine members that this is an inordinately large number and w

board to be less efficient. 

Judge QUINN. I would think so, definitely. 

Mr. CREECH. In your view limiting the membership to three 

be the ideal number. 

Judge QUINN. It wOUld. 

1\:[r. CREECH. Sir, moving to S. 748 you refer to qualifications 

courts of military review. 

Would it be preferable to leave the qualifications to the Secretar

the general language to the effect that, of course, high-caliber, 

are required? 

You point out that the 6-year practice provision may need clar

wonder if you feel that it would be desirable or preferable to le

fications to the Secretary of the service, requiring only that hig

personnel be required. 

20 
some question as to the composition of the court. I am quite sure the 

at that time indicated it was purely a military tribunal and that poli

might constitute it. 

After some discussion the term was cut to 15 years-with the fir

serving 5, 10 and 15 years. That change has caused many difficul

the course of the last 15 years and I think it was basically a great 

make it Since that time, of course, the House of Representatives 

put through bills providing for tenure during good behavior, but the 

never been considered by the Senate. 

I think it is a great mistake. I certainly think the other Federal co

look down their noses at the Court of :!Uilitary Appeals, and are inclin

that it is not a court in every sense of the word. 

The Court of Military Appeals deals with the lives and the fortu

flower of our American manhood-in other words, the Army, the Na

Force, the Marine CorPs who guard our lives and liberties. Our w

court is concerned solely with the lives and fortunes of those men. 

While we do not deal in billions of dollars, we do deal in things tha

precious, in my opmlOn. I think our court should have equal standing 

Federal courts of the United States. 

Mr. CREECH. With regard to the provisions of S. 748 pertaining t

ship on the Courts of Military Review--of course it provides that 

missioned officer shall be appointed for a term of 3 years where with 

apPOinted to a court with civil service regulations which would be th

good behavior-which it sees fit here for serving with good behavior. 

Do you feel, sir, that this will cause any particular problem to have t

serving under one criteria, whereas the duty for the military perso

only 3 years? 

Judge QUINN. I think it would be preferable for both to have the sa

apply to them, Mr. Creech. 

Mr. CREECH. Do you foresee any problem in adjusting this so tha

officers who are appointed from the military still remain in the milit

and yet be in different status from that of civilian members? 

Judge QUINN. I think it would be more realistic to require this 

of the members of the board of military review. It seems to me no insu

difficulties in letting part be civilians and part military will arise. 

Mr. CREECH. Sir, in regard to S. 749 concerning the reduction of co

fluence you suggest making the exercise of command influence a par

37 of the Uniform Code of ~Iilitary Justice. 

The subcommittee has been told that as a practical matter it would 

to bring about a prosecution. 
Judge QUINN. That is correct. 

Mr. CREECH. Although it is largely eliminated-and perhaps t

been insignificant in number as compared to other cases, in the 

of military you continue to receive cases concerning command infl

Is that correct, sir? 

Judge QUINN. Yes, we do, not very many but there are still som

Mr. CREECH. Sir, one of the issues which the subcommittee has b

concerned about-as you know-is the matter of granting l('gal 

ministratiYe discharges and S. 753, of course, "ill amend article 67 

Code of Military Justice to allow the new Uniform Code of ~mit

review results of military board d('cisions in the form of an appell

on page 7 of your statement, sir, in commenting on this I believe it i

that this would involve additional burden on the court and I won

would care to expand on that statement. 

Judge QUINN. Naturally it would require time and effort on th

court. But, personally I believe it would be a good thing. I am 

that my distinguished colleagues would agr('e with me in this ma

no reason why we Rhould not make that kind of a review. It is pos

have to have some increase in the staff to assist us, but I certainly b

penalty that goes with a dishonorable dischargE', bad conduct an

discharge is of sufficient gravity to warrant a judicial review. 

I have young men coming to my office day in and day out to tell 

cult or impossible it is to get a job with any ~ub~tantial concern 

have a bad conduct discharge, unde~irable discharge or dishonora

Perhaps they should be penalized for getting themselves into a si

requires that type of discharge. Although undpsirable dischar

adminh<tratively, they have severe penalties, and it seems to me 

review is necessary. 

As far as I am coneerned personally, Mr. Chairman and membe

committee, I certainly would be willing to undertake that revi

required of us. 

I think my colleagues might be a little skeptical about our ca

charge the added responsibilities. I think we can do it and do it 

I would be willing to take responsibility. 

Mr. CREECH. 'I'he Department of Defense has suggested that the 

be very heavy, pE'rhaps some 15,000 cases annually might be inv

sE'rvices exist for lightening the cases such as petition under pre

of the bill? 

Is there anything to prevent repeated petitions which would be 

the court. 

22 
In addition, at the administrative board they want the Secretary t

review made. 

Judge QUINN. We agree with you. 

Senator ERVIN. Just from the standpoint of the administration 

comparatively smaller percentage of cases which were disposed of 

court ever reach the appellate court. 

Judge QUINN. Yes, that is very true. 

Senator ERVIN. And that is the basis for the view that there will 

difference in this respect in connection with less than an honorab

given by an administrative board and the administration of justic

Judge QUINN. I would agree with you. 

Senator ERVIN. I feel that those making those comments were c

some ghosts that do not really exist. 

Judge QUINN. I am inclined to think so. I do not think it wou

surmountable burden for the court if Congress saw fit to add revi

discharges on the petitions for good cause shown. 

Senator ERVIN. There is very little difference in it after punish

ceived-there is very little difference between a dishonorable disc

as a result of a court martial and the Ultimate result of any disc

by administration process of a nature less than honorable, isn't ther

Judge QUINN. I would say there is very little difference. As far as t

ability to get a job, I would say there would be no difference. 

Mr. CREECH. Judge Quinn, moving on to page 10 of your statemen

regard to S. 758-current regulations restrict discharge for civil cour

to matters which involve moral turpitude and the like-I see you 

for confinement for 1 year or more as a punitive discharge. 

Would you care to expand as to why you prefer this? 

Judge QUINN. That would be a felony. In other words, I think it 

felony rather than a minor misdemeanor to justify that action. 

I don't think the traffic offense or other minor offenses should be t

any undesirable discharge. If the conviction is for a felony that 

sufficient justification. 

Mr. CREECH. Would you tell me, sir, where in that language it sh

then the intent of the 1 year punishment? 

I realize that when you talk about discharge under UCMJthe conv

states in which the statutory requirement with regard to felonies, mi

differ-would you feel it reasonable to stipulate felonies rather than 

tion you specify here? 

Judge QUINN. It seems to me that perhaps it would be preferabl

tation. I think it amounts to the same thing, Mr. Creech. 

247-205--67----4 
First, they seek to add procedural protection to the hearing pr

Secondly, they allow the election of a trial which would con

protection. 

Thirdly, they provide for legal review by a court of military a

Do you regard these approaches as complementary? Or are 

sary? Or if one or two is to be selected on what basis should th

Judge QUINN. I think they complement each other. I think gen

that a man who is going to be given a discharge of that natur

ordinary circumstances, be given the right to elect to either tak

discharge after he has had proper legal counsel. I think in ad

he should be given the right to judicial review. 

I think one protection complements the other; and all three 

Mr. CREECH. Sir, the representation has been made to the sub

respect to procedural protections proposed for administrative 

there is an advantage in having personnel in administrative a

advantage will be lost by incorporation of legal technicalities and 

would be essentially identical systems for misconduct-the court a

and this is not a desirable thing. 

Would you care to comment on this assertion? 

Judge QUINN. I would be reluctant to accept that approach. I

sensible to me. 

lt seems to me that all the protection that can be afforded 

men should be given to them. They are facing a very seriou

seems to me that if indigent prisoners are entitled to counsel, a

go along with the mandate of the Supreme Court we ought to 

protection to the young people in the military service. 

Senator ERVIN. It has been suggested by some of the witne

should be a condition precedent to the power of the armed servi

administrative discharge less than honorable. 

One of the conditions should be that the servicemen have some b

and counsel as to the consequences of their action before bein

charge without these proceedings. He ought to sign a waiver w

his understanding of his rights and that he waives everything 

to accept the discharge. 

I impart from your testimony that you would think some suc

should be a condition precedent to the granting of an administr

of less than honorable character. 

Judge QUINN. I think it is a very serious consequence-a di

character. 

24 
rious case of command influence. I believe I am correct that yo

cause to send the case back. 

Evidently from the information received by the subcommittee no d

action was instituted-or at least the disciplinary action never came t

tion of this subcommittee. 

Do you think that a punitive article in the code specifically on 

would result in very many courts-martial? 

Judge QUINN. I cannot discuss any case that might be coming b

court but as far as I can see, it would result in few cases-I wou

few. We have had none up-to-date although there have been i

command control. 

As I have said, I think it has been substantially eliminated but 

some cases where it still obtains. I do think if a deliberate attempt 

command control in any service is found there should be prosecu

Just because a general or admiral commits the offense, should no

any the less amenable to prosecution than a private. 

Mr. BASKIR. The effect of making violations of article 37 a court

fense would have a deterrent effect-would that in large measure b

Judge QUINN. I think it might have. 

Mr. BASKIR. S. 753, which has to do with the jurisdiction of th

review administrative discharges-on page 2 of that bill-it refer

of all cases before a board established under sections 1552 and 1553. 

The language apparently does not limit review only to discharge 

Do you believe the bill should be changed only to deal with disch

Judge QUINN. I would think it should be limited to that. 

Mr. BASKIR. There is no need that you see for other kinds of case

before the board? 

Judge QUINN. I am not an expert in that field. I am not qualifie

the question. 

Mr. BASKIR. It has been suggested that perhaps these cases shoul

to those certified by the Judge Advocate General because of the bu

Court of numerous petitions by the applicant. But you suggest i

eliminated. 

Do you believe that would be necessary because of the language t

on page 7, sir? 

Judge QUINN. I am just reading it-­

In the interest of conserving judicial time and expense, I recomm

tion of the provision limiting the action of the U.S. Court of Milit

to issues certified by the Secretary. On review by the court, other 

appear which are dispositive of the case. The court should be em

deal with these issues. 
court. The court has to determine what good cause is. 

Senator ERVIN. In my opinion, and I think your views coinci

the right to petition for review in a particular case should be g

event. 

(Senator Thurmond enters the hearing room at this point.) 

Senator ERVIN. I think such right is absolutely essential to the 

of justice. 

Judge QUINN. That is right, Senator, that suggestion had b

Senator ERVIN. I am sorry-I attributed it to you. 

Judge QUINN. I just made reference to it. 

1\1r. BASKIR. S. 758 was discussed a moment ago. It gives an 

man about to be administratively discharged-a choice of elect

court-martial. 

In earlier testimony a certain number of cases were referre

it was felt that perhaps this election would not be practicable; 

such as sex perversion-in which it would be impossiule to get 

because the witnesses would be reluctant to come forward. Th

cases in which the individual had a long chain of petty offenses w

that he was not fit for military service-but none of which wo

to warrant discharge under the code. There are other instances 

of certain legal technicalities prosecution would not be successful. 

If a man demonstrated that he ,vas not fit for military serv

suggest or would you approve of exceptions being written into t

to cover the cases such as I just mentioned? 

Judge QUINN. I think where a man has two left feet, or prob

to become a good soldier or a good airman or a good member of th

that perhaps the service should be able to give him some kind 

but I. do not think he should get an undesiraule discharge. I th

have some election-some system should be worked out to give hi

which would carry no unfavorable connotations. 

1\1r. BASKIR. In all these cases where the service record did n

undesirable dischargeSenator ERVIN. Would you yield to Senator Javits? 

1\1r. BASKIR. Yes, sir. 

Senator JAVITS. Judge Quinn, thank you very much. I note wi

of interest the fact that the judges are here who happen to be 

I served in the House and the Senate. 

I am very glad to see them and I am very pleased to see the in

toward our committee for bringing about these hearings which 

richly deserved. 

26 
This really is the worst punishment you could give him, far w

jail sentence. 

Judge QUINN. I am in complete agreement with you, Senator Ja

Senator JAVITS. I assume in your recommendations you would 

that vital essential upon the administration of this power. 

Is that correct generally? 

Judge QUINN. I am quite sure that my written statement su

observation, Senator. 

Senator JAVITS. Thank you, very much. Basically in those inst

have been suggested where S. 758 would not work these were all 

conduc"t where it was felt thut a man's record would not warrant a

discharge. 

It was suggested in these ('ases that an undesirable discharg

allowed and election for court-martial should not be allowed. 

Judge QUINN. I disagree; if he is gin'n an lmdesirable discharg

have the right to stand trial. 

Senator JAVITS. The man should get a dishonorable discharge i

not to have a court-martial. 

Judge QUINN. I would be reluctant to hand out honorable discharg

an honorable discharge connotes honorable service in one of the mi

A man, however, could be separated from the service without an 

discharge or discharge other than honorable, where the significan

notation of undesirability would not go with it. 

I think if the services are administratively going to give an 

discharge the individual should have the right to elect a trial if h

have it and that he should have proper legal advice before he is 

make a decision. 

Senator JAVITS. May I identify myself with that. I am so plea

you say that-that is the only way to do it. 

Senator ERVIN. Judge, I believe you and I would agree with the m

no man should be entitled to receive an honorable discharge unless 

he has rendered has been in an honorable manner. 

Judge QUINN. Yes. 

Senator ERVIN. The military takes the position-and I think it is v

that one of the greatest distinctions a man can have in civilian 

leaves the service is the fact that he receives an honorable dischar

as high a badge as the military can give a man notwithstanding t

valor for fine service. 

Judge QUINN. Itis a mark of distinction in my opinion. 

Senator ERVIN. I think if we could struggle ourselves with all 
yp

function and decide matters arising under the Constitution or l

the Congress pursuant to the Constitution and under the treatie

during good behavior. 

I think the Constitution meant that, and I am an advocate o

provision of the Constitution effective in military appeals as w

courts. 

I trust we will get the Senate to go along with the House in th

Judge QUINN. I thank you very much, Mr. Chairman. I ha

guished associates-Judge Kilday and Judge Ferguson. They 

distinguished gentlemen, but they are hardworking men and ha

to the success of the administration of military justice. 

Senator ERVIN. The thought has been expressed here by the 

a man does not have the right to be retained in the military servic

for military duty. 

I will ask you if you do not think that the civilians who are i

with the military on that proposition. 

Judge QUINN. I think they agree with them on that. 

Senator ERVIN. Do you think if the law was altered to allow j

by a court of military appeals of the question of discharges other t

that there would be a tendency on the part of the military ap

decisions to retain men unfit for military service? ' 

Judge QUINN. There would be no danger of that. 

Senator ERVIN. The civilian population is interested in hav

the military service. 

Judge QUINN. Certainly. 

Senator THURMOND. I would like to be associated with the dis

ator from North Carolina in what he had to say about the Mi

Appeals and members in the court being held in the highest esteem. 

I have heard many civilian and military people express their h

for the manner in which the work of the court is now conducted. 

I would like to make this further observation, too. 

That the stigma and it is a terrible stigma for a man to get a 

than honorable-it does affect him in whatever he goes int()-I 

to have some balance there because the man goes into the serv

the uniform of his country and before we give him anything ex

able discharge or a discharge in any case that his conduct has 

but honorable-then we better be careful. 

It is a very serious thing for a man to get a discharge other t

I would not hesitate to see a man get a discharge other than h

facts warranted it. 

28 
military lawyers should be permitted to devote themselves exclusi

performance of legal duties in the armed services. 

We have some of the services still hanging on to the old view tha

should be able to perform many duties that might involve his bra

service. 

That view was to orient the officer with many duties in the days wh

were simple-they consisted of a rifle maybe and a bayonet and a ver

of artillery. 

Since that time we have developed very intricate weapons. We 

drastic change in the duties of the military in respect of their functions

I share your view entirely. We have gotten to the age of speciali

no longer reasonably expect every officer who is in the military to disc

duty that can involve 'an officer of his rank of service. 

You stressed that opinion with reference to legal officers in the m

I think it applies to them as well as to the officers who have to have 

edge and skills to operate intricate weapon systems that we have now. 

We have reached the age of specialization in the military as we 

many of the phases of civilian life. 

Judge QUINN. I think that is about right. 

Senator ERVIN. I think the Marine Corps says that legal officers sho

to do everything required of an officer. 

Judge QUINN. I am not qualified to pass upon that. 

I think generally speaking legal officers in the Navy are required 

work, which is as it should be because they are specially trained to d

Senator ERVIN. I will go along with the Marine Corps to this exte

it would be well to have every legal officer perform some other du

platoon duty but I would not keep them on one duty. I would assig

duty and another duty through their military service. 

I believe experience is the most efficient teacher of all things. I 

applies to military lawyers. I would endorse the fact that so man

are devoting themselves to military service and I think you can exp

increase in the quality of the service of a legal nature in the military 

that reason. 

Judge QUINN. I think the Judge Advocate General Corps for the 

indication that it would work equally as well for the Navy. 

The Army first started the field judiciary and the Navy followed. B

that same idea, a judge advocates corps for the Navy would work 

as welL 

Senator ERVIN. Judge, the committee is indebted to you for giving u

fit of your experience in this field and we want to thank you for com

Judge QUINN. Thank you very much, Senator. It has been a pleas
stitution. By decision and discussion, the judges of the Co

Appeals have endeavored to demonstrate that military discip

compatible with, and encouraged by, equal justice under l

crimes trials after World War II established that, even in th

of hostilities, the military commander cannot disregard the rule 

Millions of Americans are committed to serve in our arm

defense of our country and the free world. The preRervatio

stitutional rights and privileges is imperative. I commend 

other committee members, for the intense interest you have s

work you have done, in this important field of law. 

As requested, Judges Ferguson, Kilday and I will separa

a written statement of our respective views on the pending bills

"\Yith warmest regards, I am, 

Sincerely yours, 

ROBERT E. QUINN, 

Senator ERVIN. Our next witness is Judge Paul J. Kilday. 

Judge Kilday, on behalf of the subcommittee I wish to express 

tion for your willingness to be here and to give us the benefit of y

on these matters pending before the subcommittee. 

Judge KILDAY. I am glad to have the opportunity to be here 

with these hearings. I do have a statement I would like to submit 

and I will summarize it. 

Senator ERVIN. Let the record show that the entire statement 

Judge Kilday will be made a part of the record. 

Sta·tement of Judge Paul J. Kilday, U.S. Oourt of Military A

Washington, D.O. 


Judge KILDAY. In this statement I state I am in substantial a

Judge Quinn. I think perhaps I should point out, too, that as to 

bills, I doubt if I have an opinion of them because of my positio

this court as, perhaps, because of my prior experience as a Membe

I know very little about the detail of proceedings for administra

On the other hand, I know a good deal of the effect of administra

upon the individual. 

In my opinion an undesirable discharge is regarded by the civil

as worse than a bad conduct discharge. They are likely to believ

indicates a failure to do something in a military sense. 

If a man is totally undesirable-this is even worse than what 

done to receive a bad conduct discharge. 

As to whether the Navy should have a Judge Advocate Corps, I 

and I endorse that legislation. 

This is probably not derived from my position as judge of th

30 
Senator ERVIN. And you served on one of the committees at 

committee was considering the Uniform Code of Military Justice

Judge KILDAY. The Elston bill which revised the code which a

Army system of military justice. 1\1r. Elston, of Ohio, was the cha

subcommittee which wrote it, and the act was generally known as th

I was ranking minority member of that subcommittee. I wa

committee which considered the report of the Subcommittee on 

Code of Military Justice. 

Senator ERVIN. You have been concerned with these problems fo

Judge KILDAY. Yes; for a long period of time. 

Mr. CREECH. Judge Kilday, I note that in your statement you sa

agreement with the observations on each bill as expressed by Chief 

in his testimony before the committee. 

I wonder if you would care to associate yourself with any of th

comments made by Judge Quinn and also if you care to expand upo

answers of Judge Quinn? 

Judge KILDAY. Not unless there is some specific area defined. I 

Quinn's testimony and I am in substantial agreement with it. 

Mr. CREECH. Sir, apart from the statements made by the chie

regard to provisions of these bills in view of your long experie

administration of military justice I wonder if you feel that there ar

than those covered by those bills which the subcommittee should be a

considering at this time as an adjunct to a supplement to the legis

is proposed in these bills? 

Judge KILDAY. At the time the bills were offered I read all of t

they covered the situation rather thoroughly. I think more empha

placed on some of them. This is true in the field of special courts·ma

lawyers. 

Of course, those which come before us are practically all from the N

the Air Force supplies qualified lawyers and the Army does not keep 

record so no BCD can be given. 

I am sure the committee will give further attention to cases whe

participates in BCD cases. 

We see the Navy cases and they cause a great deal of difficulty

report last year showed some 14,000 special courts. Our court 

them because no BOD can be given in an Army special court. 

Recently we had a case at Salt Lake City where a young man w

to 6 months in a stockade without a BCD. He filed for a writ of h

and was discharged on grounds that he did not have effective repre

counsel. 

247-205-67--5 
appeals being given jurisdiction to review these discharges? 

Judge KILDAY. Because of the effect these discharges have on 

think that a review is called for. 

Until you mentioned this morning that possibly 15,000 of those 

I had no idea of what the number might be or as to what the im

upon the court. 

If they should come to us on petition for good cause shown I hav

can handle that workload. If we had to review all 15,000, and I t

annual figure of 15,OOO-this would be a physical impos,sibility. 

Mr. CREECH. Sir, the subcommittee has encountered with regard 

stemming from administrative actions in board proceedings and th

a number of complaints received by the subcommittee-which indi

does happen from time to time-that individuals have received bo

the basis of alleged misconduct for which they have been acquitted i

They have been subject to board action and in instances in w

requested trial by court-martial it has been denied them. 

As you know these are issues which the subcommittee has been v

cerned with and which would be covered by these bills. 

I wonder whether in such mea,sures where the individual req

court-martial or refused trial by court-martial or gets board a

would care to comment on this or if you care to comment on act

boards when someone's misconduct has been sufficient to justify a 

but an accumUlation of misconducts which has brought about boa

Judge KILDAY. For instance, you have a lot of fellows in civil li

body feels ought to be in jail but they are alway,s just short of the 

are not able to get them to a court so nothing is done as to them. 

peculiar to the military. 

I seem to remember administrative discharges having been given 

conduct of which a man has been acquitted by court-martial. 

I understand this cannot happen in all cases. There is some lim

I understand it doe,s happen. A man could be court-martialed, acq

subjected to a less than honorable discharge administratively for 

not sustain in court. 

If you had judicial review this would not happen-that would pr

that 15,000 cases per year. 

Mr. CREECH. I infer that you feel in the case of administrative 

that individual situations should be on the same ba,sis with that of a 

where if an individual accepts nonjudicial punishment in article 

given a court-martial. If he requests a court-marUal he is given i

32 
,

than sent to the court-martial. 

When it comes to the character of the discharge given that is 

proposition. 

Mr. CREECH. Sir, we have had mention this morning the Kitchen c

believe was handed down-I think it was handed down early in 1962

I believe-I am correct in saying that in that case there was comma

but the court found that possibility was not so great that it wa,s 

reversing that decision. 

Judge KILDAY. And we did reverse it. 

Mr. CREECH. In the majority of cases which have come before th

volving command influence-has it been possible to make an adjudi

this was actually command influence or is the reversal predicate

opportunity for it, an indication that there might have been? 

Judge KILDAY. The chief judge indicated that this is a matter gr

appearing from the military. There are those on the court who were 

to my coming and they have more experience than I have. I arrive

number of cases has diminished to a great extent. 

There will always be cases recurring no doubt. 

It is 15 years since the code went into effect. You have few men in 

now who 15 years ago were at such ranks that they had any major 

military discipline. They were company commander,s or lower at 

They have come up under this new system and you do have the resistan

clinging to the status quo-these people have been raised under thi

command influence has diminished a great deal. 

Judge Quinn or Judge Ferguson can give you more. 

Senator ERVIN. I interpret your testimony to the effect that you ar

ment with what Judge Quinn has said about the handicap which a m

throughout his life if he receives a discharge other than honorable. 

Judge KILDAY. I agree thoroughly. 

Senator ERVIN. And you are not averse to the proposition that so

of having judicial review of such discharges is desirable. 

Judge KILDAY. I think there should be some review of it. 

Senator ERVIN. I would like to ask whether or not you agree with 

view that a great many people who have a discharge le~ than honor

such a discharge rather than undergo the possibility of court-martial

Judge KILDAY. I am sure that happens in many instances. 

Senator ERVIN. Do you agree with me that a very substantial per

cases where the unfitness of the man for further service by reason 

conduct or by reason of his general ineptitude-that in a great major
has a vested right to remain in the military if he has shown unfitnes

service. 

Judge KILDAY. If he is a misfit they should get rid of him. 

Senator ERVIN. Do you agree with me there is no real reason to 

Court of Military Appeals from having judicial review. The right to 

legality and propriety of administrative discharges under less th

conditions in restricted circumstances? 

The Court of Military Appeals has the same feeling that the milit

the desirability of having fit men in the military service. 

Judge Kilday, I think as a matter of fact we can anticipate that u

precarious conditions the world has been in since the First World W

ond World War, the Korean war and now Vietnam-the men serving 

of Military Appeals are men with military experience and are acqua

extent with the problems of the military. 

Judge KILDAY. Quite likely. 


Senator ERYIN. Do you have any questions? 


No questions. 


On behalf of the subcommittee I wish to repeat our appredation 

pared statement and your appearance here and your kindness in g

benefit of your experience and observations in this field. 

Judge KILDAY. Thank you. 

(The statement of Judge Paul J. Kilday referred to follows:) 

STATEMENT OF lION. PAUL J. KILDAY, JUDGE, U.S. COURT OF MILIT

:'IIr. Chairman and membprs of the committee, May 5, 1965, 

anniversary of the approval by the President of the Uniform Cod

Justice and May 31, 1966, will be the 15th anniversary of the effe

that act. The original judges of the U.S. Court of Military A

appointed June 20, 1951. Therefore, the court will have been in 

years in June 1966. 

It is pertinent to observe that the code was preceded by a re

system of military justice of the Army. TJIat revision was gen

as the Elston Act, being Public Law 759, BOth Congress (62 St

proved June 24, 1948. The act took its name from the chairman 

Subcommittee of the Committee on Armed Services of the Hou

sentatives, Hon. Charles H. Elston, a member of Congress fr

served as the ranking minOrity member of that subcommittee. 

be observed that, while the Elston Act was based upon, and co

amendment to the existing Articles of 'Var, in many respects it r

radical departure from former provisions of both SUbstantive l

cedure. 

As I have indicated the Elston Act was followed within less 

by the Uniform Code of Military Justice, which had for its st

the "unifying, consolidating, revising, and codifying the Articles 

34 
y . For more than 4 years now, since September 25, 1961, I have 

judge of the U.S. Court of Military Appeals. Thus, I have had 

experience of evaluating the effectiveness of the action taken 

when viewed in the light of experience and the present state of m

tice as revealro to me 17 YE'ars ago and, again, 15 years ago. It 

.J ~gratification that I can report to you that the congressional enac

sents a job remarkably well done. 'When the provisions of th

Manual for CourtS-Martial, and the decisions of the Court of M

peals are observro, 'and they are observro in the vast majority 

substantial jUfltice is accomplished in a very high percentage o

and the quality compares most favorably with that of civilian c

United States. 

In the Michigan Law Review of November 1964 (vol. 63, no. 1)

ing appears:

"* * * Courts-martial, unlike their civilian counterparts, 

nalistic and designed to deal with the internal affairs of the m

summary command discipline is inappropriate. The maximu

punishment, the stringent rules against self-incrimination, and t

system of automatic and discretionary review found in military 

r -Aater protection to a defendant before a court-martial than h

'-e in civilian courts." 

I challenge anyone to produce a comparable estimate of mil

in any publication of any law school of any major university 

adoption of the Uniform Code of Military Justice. 

As recognized in the beginning, the code is not perfect and 

and revisions, based upon 15 years of experience, are in order

the Judiciary Act was adopted by the First Congress in 1789 and 

are still found to be necessary or desirable. Federal appellate 

still revising lower courts holdings of common law questions w

in 1789. 

Article 67(g) of the code recognized this necessity by provid

court of military appeals and the Judge Advocates General of 

forces shall meet annually to make a survey and report of the ope

code "and any recommendations relating to uniformity of polici

tences, amendments to this chapter, and any other matters 

appropriate." 

I want to commend the committees for the searching and detail

tion they have made into the operation of military justice and 

them upon the nature and the quality of the amendments proposed

I shall not address myself to the individual bills, unless the 

should desire that I do so as to any designated proposal. I wi

corded as stating that I am in general agreement with the obse

each bill as expressed by Chief Judge Quinn in his testimony 

committee. 

Senator ERVIN. Our next witness is Judge Homer Ferguson, U.

~Iilitary Appeals. 

Judge Ferguson we are delighted to have you here with us. 
MILITARY ApPEALS 

Mr. Chairman and members of the committee, I appreciate th

of the subcommittee to make known my views on the suggested im

in military justice matters pending before it. In so dOing, I 

frankly of the matters which have come to my knowledge as a ju

bear on the proposed legislation, leaving to the subcommittee 

evaluating my testimony so that it may play its proper part. I th

ish to say either that we cannot improve the code or that it is total 

The truth lies somewhere between, and I hope my testimony wil

in determining where it is. 

I have read and studied the proposed bills amending the Unifo

l\Iilitary Justice with much interest, in light of my experience 

past years as an associate judge of the U.S. Court of Military 

particularly applaud the attempt embodied therein to improve 

and role of the law officer of general courts-martial. In my opin

the most significant developments of the last 10 years in military 

the institution by the Army and Navy of their law officer program

removal of this trial judge from the supervision of the local 

advocate, who plays such an important role in the prosecution of t

and making him in truth an independent judicial officer, with f

study, digest, and apply the increasing number of opinions inter

uniform code. I can safely say that no other single factor 

to reduce trial errors and improve courts-martial practice than 

but effective plan. I urge its statutory implementation for all 

Forces, and I strongly recommend enactment of Senate bill 745. 

Senate bill 746, in effect, reorganizes the Office of the Judg

General of the Navy into a judge advocate general's corps in a m

ilar to that of the Army. I do not have the technical expertise or 

to comment on the desirability of such action. I do point out, ho

the Navy Judge Advocate General is also deeply committed in t

tration of military justice in the Marine Corps. I am inform

Marines have consistently followed the practice of assigning 

specialists to tours of duty in the line and later perhaps return

legal duties. This does not permit these officers to proceed norm

legal career or to keep up with developments in the law so as to 

desirable high level of performance necessary to the proper adm

of military justice. Such is sometimes reflected in the Marine 

which come before us, and I suggest that the committee will pe

also to consider the needs of the Marine Corps when revamping th

of the Navy Judge Advocate General's organization. 

Senate bill 747 provides a new system of review for adminis

charges, as well as punitive discharges imposed by courts-martial

man board under the Secretary of Defense and a similar three

under the Secretary of the Treasury. 

Again, the court has had little experience with administrative 

the general and undesirable certificates-as such are not adjudge

martial. However, at one time, their use in lieu of courts-martial 

was encouraged in the Air Force by a former judge advocate 

order to escape the protections thrown around an accused by th

Code. It is undeniable that, so far as society is tY'''erned, the 

36 
y pg 

civilian member judge of each panel; setting definite terms fo

judges; and giving the panels the power to suspend sentence

in part. 

The boards of review do not presently have the power to 

tences:~ In accordance with the more advanced notions of appel

sentences, it seems desirable that this authority should also 

upon them. Frequently, a young man will be sentenced to a 

charge,rAnd all indications are that he may be restorable, with 

earn his. honorable discharge by good conduct as a soldier. 

convening authority, who acts immediately after the trial, 

sentence,. the board is powerless to suspend it. Their only alt

disapprove it, and they may be reluctant to do so in face of his 

crimes. Having the power to suspend-which I consider int

tween approval and disapproval-they, free from the influence

so often dictate approval of a harsh penalty, can offer the 

chance to become a good citizen. If he does not behave, o

suspension may be vacated after hearing and notice under a

the sentence placed in effect. In this connection, I wish to po

committee that I am not unaware of the Army's rehabilitatio

Leavenworth and the Amarillo project in the Air Force, but m

sentenced to punitive discharges and short terms of confine

sent to these facilities and, hence, never get an opportunity fo

Thus, it is needful for the boards to have power to take actio

the imposition of punishment in whole or in part. I so reco

With regard to the other amendments of article 66, I whol

lieve they are justified and necessary to endow the boards of re

the judicial character of intermediate appellate courts, which 

has always been, their function. 

Several years ago, it came to our attention that chairmen 

review were writing efficiency reports on their fellow membe

which can but lead to abuse. Again, I understand that this h

doned and, in the Army at least, a serious attempt has been mad

the boards into a separate appellate judiciary, free from all 

of control and influence from any source, and which work

public confidence in all stages of military justice. Last fall

came to our attention that Air Force boards of review wer

submit ther opinions-prior to publications or promulgation 

the accused-to a senior officer who, acting on behalf of the Ju

General, was empowered to edit them, point out corrections 

record and the law, and, in general, supervise the board's opini

every aspect. The Air Force insisted that, in the years durin

examination division existed, no attempt was made in any way 

change a Single board of review opinion. We in fact found 

to the accused in this particular case, and the Air Force, I un

since revised its procedure to permit only examination for 

clerical mistakes. Nevertheless, there is a great potential for 

procedure which requires a supposedly independent judicial bo

a copy of its opinion to the Judge Advocate General or his ass

vance of the promulgation of that deci:;;ion. Conceding the prac
which t.o serve, without fear .of being remove(: .on short notice 

elsewhere f.or some totally unrelated task. 

In like manner, I d.o n.ot see any basis f.or .objecting t.o the us

b.oard members. From .our scrutiny of the records, they have 

in the Navy, alth.ough the .other services have traditi.onally li

selves to c.ommissioned officers. Service interests and specializ

by providing .only .one civilian judge for each panel, thus le

military approach with the more detached viewpoint .of the 

In c.onnection with tenure for such members during good behav

remind y.ou that legislation t.o the same effect for this court 

H.ouse last year, but was n.ot c.onsidered by the Senate. I ju

feasible and desirable to afford it not only to the court but to 

members.of the board of review. 

Finally, in the interests .of ec.on.omy and the ever proceedin

eliminating duplication .of effort among the armed services, I 

may wish to consider combining the boards of review and p

under the Department of Defense. All services could be rep

the various panels thereof, thus rem.oYing any difficulties afford

nical matters peculiar t.o .one armed f.orce. At the same time, by 

pletely rem.oved from the military departments, their indep

judical tribunals w.ould be assured. M.ore.over, the triplication 

trative facilities t.o support three different groups of boards wo

nated, and .one might expect a more unif.orm interpretation .of w

all, a uniform code, as well as the elimination 9f grave dispar

tences f.or the same offense, depending upon the service of which 

isa member. 

Senate bill 749, amending article 37 of the code, 10 U.S. C.od

hibits pretrial instructi.on of court members under the current 

Courts-Martial (paragraph 38), extends the prohibition again

control to staff officers, and seeks t.o pr.otect defense counsel aga

by means .of low efficiency reports. 

As t.o pretrial instructi.on .of c.ourt members, I have set forth 

length in .opinions which, unf.ortunately, were insufficiently p

cause such matters t.o be f.orbidden under the present law. 

Army has since put .out a Chief .of Staff directive ag4. 'st thes

tions, it has been disregarded .on .occasion. For example, we 

least two cases pending before the c.ourt .on this subject. I hea

mend enactment .of this pr.ovision. 

Concerning the extension of the strictures against comman

staff .officers, I can honestly say that it is these .overzeal.ous ind

are usually responsible for violati.ons .of article 37. Seldom do

case in which a military commander directly takes issue with a c

or attempts to interfere with it. Instead, we find in alm.ost ev

a staff judge advocate tampering with the c.ourt in .order to .o

favorable rati.o .of convictions and sentences. Case after case 

c.ourt indicates this, and I believe it imperative that the statute 

expressly t.o reach the real source.of trouble. 

I equally fav.or express prohibiti.on .of unfav.orable efficiency 

defense c.ounsel wh.ose zeal in the perf.ormance .of their du

acrimony of their rating officer, but I believe the law sh.oul

strengthened by its conversi.on t.o a punitive article and provi

38 
of the matter again camel to naught, with no action, to my know

taken. On the retrial, the new defense counsel was intimidated 

staff judge advocate and ended up with an equally bad efficienc

defending his client with vigor. Yet, despite this repetitive v

are aware of nothing that has been done. 

The situation creates quite a dilemma for military justice. If 

counsel, in the best traditions of our bar, ignores the efforts 

him and stands up and fights for his client, he gets a bad effic

which can absolutely ruin his military career. Yet, the court can 

for, if the influence is ineffective, the accused has had his day i

there is no basis for reversal. That is what happened in the 

Sparks case. If, on the other hand, counsel is in fact fearful fo

we will hear nothing about it, for the record will be totally silent 

ter. The dice, therefore, are loaded in favor of the sycophant

thing should and must be done by the Congress. As I suggeste

specific deterrent of a punitive article and mandatory dismiss

servie might have that effect, providing one can ever get a m

violated the code in. this manner brought to trial. To dMe, I 

there have been no such prosecutions. Thus, I suggest you ma

to pro,ide for civilian prosecution of this violation. 

Senate bill 730 provides, inter alia, for legally trained counse

conduct discharge cases. I very much favor this legislation. 

does not distinguish between dishonorable and bad-conduct dis

between those awarded by a general court-martial or a special co

Indeed, except in a relatively unimportant area, the Veterans' Ad

makes no such distinctions in withholding veterans' benefits

lawyers special court-martial cases we have received, all of w

appellate level, involve bad-conduct discharges, are frequen

'Yhere the penalty is so terrible and long lasting, the accused sh

the benefit of legally qualified counsel. The Air Force has recogn

detailing lawyers to almost all bad-conduct discharge cases. Th

age forbade the appointment of court reporters and preparations 

records in special courts-martial, thereby prohibiting imposit

conduct discharges, except by general courts-martial. The Navy 

Corps should liljfi.vise be compelled to recognize what experience 

the otber services. 

The proviBions of Senate bill 750 regarding provision of couns

istrativeboard hearings which consider the imposition of und

charges is likewise commendable. As I have already noted, mos

tion simply does not distinguish between an undesirable disch

punitive discharge. All have the effect of barring the individu

from most areas of employment and advancement. Steps shoul

be taken to insure that members of the service are given that du

law in administrative proceedings which they would find in deali

other branch of the Government. 

Sena te bill 751 increases the time of petitioning for new tri

present 1 year after the action of the convening authority to 2 y

is very necessary. A petition for new trial is an extraordinary 

signed to supplement and add to accused's normal appellate righ

grounds. At the present time, appellate review is normally no

by the time the I-year period has expired. The remedy, therefore
, pw

and I think it could be most suitably ended 'by an additional 

to article 66 of the code to provide expressly that: 

"The Court of Military Appeals shall have power to enterta

error in the nature of coram nobis in all court-martial cases 

appellate jurisdiction originally extended and grant such relief 

tioner as it may deem required." 

Senate bill 752 envisions the addition of a law officer to a sp

martial, with authority, as in the J<'ederal courts, for the accus

trial by the court members and be tried by the law officer alo

with what I have said above concerning the imposition of bad-

charges by special courts-martial and the serious nature of suc

I believe such would be an advantage, if the bad-conduct disch

authorized as a penalty. I suggest, however, that it is anomalo

an accused to be tried before a law officer alone in special courts

not afford the same procedure for the military judge of a ge

martial, whose independence and capabilities the proposed bil

reinforce. I believe the service representatives will bear me o

that the majority of general courts-martial now embrace guilty 

on pretrIal deals with the convening authority for a limited sent

time and effort is now lost by the court members having to st

during the law officer's in-chambers examination of the plea and 

subsequent automatic voting on findings and deliberations on t

All this could be eliminated by trial before the law officer alon

fixing the sentence as in our civil courts. In addition, it would 

more judicial to me to have pleas entered before him and senten

on the basis of the recommendation of the prosecutor (but not 

such recommendation) than to continue in effect the present pr

ment whereby the convening authority "contracts" with the ac

vance for a certain limit on the sentence. This latter "co

undoubtedly led to improvident pleas by accused who fear a grea

more than the opportunity to be heard on their innocence. 

extensions, I support the concept of the law officer being applie

courts-martial. I also strongly recommend enactment of the am

article 41, permitting him to rule finally on challenges. I su

51 should also be amended to make final his rulings on mental 

to stand trial and the legal sufficiency of the evidence. These a

for a judge, not the jury. 

Senate bill 753 extends the appellate jurisdiction of the Cour

Appeals to include appeals on legal issues from decisions of disc

boards and boards on correction of military records regarding ad

discharges. If it were limited to due process questions, as is th

ently in the U.S. courts, I would have no objection to this enl

our jurisdiction. If not so limited, however, I believe we would b

with appeals to the detriment of our handling of the more se

martial questions. And, I wish to point out to the committe

issues seem rarely to be of import in these administrative pro

the accused in fact has received a fair hearing. As I underst

of the controversy arises over the factual basis for an unsati

charge, particularly after the individual has been separated an

serious are the obstacles which he now faces. Moreover, I w

the committee that the boards on correction of military records 

40 
aowed to ty ad setece aoe, ucote pa

tion would be reduced. Nevertheless, the section itself will be 

est assistance in the speedy disposition of military criminal trial

now reflect that days are sometimes lost by court members wh

around and wait while an out-of-court hearing settles some 

interlocutory problem. As the boards of review and court w

decisions taken in such conferences as a part of the record, there 

of abbreviating the accused's rights. I recommend the enac

procedure. 

Senate bill 759 eliminates the summary court-marital. In 

greatly increased powers of commanding officers under article 1

10 U.S. Code § 815, it has become useless, for the commander, p

he is of field grade, may himself impose practically the sam

as a summary court. If I recall correctly, it was the intention 

sought these increased powers for the commander to do away 

mary court-martial. I think this should now be done. 

Senate bill 760 extends the present subpena powers of cou

pretrial investigating officers and administrative discharge 

former have suffered for years from being unable to summon w

general court-martial preliminary hearing. I suspect the latte

need to have civilian witnesses, as they are usually concerned 

fitness. In any event, however, the power should be there to 

in case of need. I favor the amendments. 

Senate bill 761 extends the jurisdiction of U.S. district court

of the code by persons who have been discharged from the se

trial therefor (and who, by virtue of such discharge, are no l

to military jurisdiction), while Senate bill 762 extends such j

civilian offenders who were camp followers at the time of 

crimes. 

All these persons are now people who cannot be punished b

they may be admittedly guilty of serious crimes. For the m

power vacuum has existed since the Supreme Court's decision 

have a military status to be subject to trial by court-martial, 

down several civilians' convictions on the basis that a trial by 

deprived them of the right to indictment by a grant jury and tr

The proposed legislation will fill this void, afford such defen

future their constitutional rights, and make it improbable t

escape deserved punishment. I wholly favor the new legislatio

In sum, then, I generally support the bills before the comm

additional amendments which I have suggested-particularly 

ening the penalty attached to violations of article 37 and tho

the power of the law officer of a general court-martial. I bel

do much to improve the administration of military justice, both 

war, as, in fact, did the code in the Korean war. ""Ve no lon

what I've heard called the old Army or Navy, or Air Force, b

are really young armed services, made up of the flower of ou

either volunteered or were conscripted to defend their country 

it represents. In doing so, every effort should be made to see 

not lose those same rights because they have donned the unifor

Thank you for the opportunity to present this statement. 

happy to appear and offer any additional information you may 
jgg yppy g , g

consideration but most of these questions are of fact that woul

these discharges. The questions of fact sometimes take a lon

straightened out, and I just would think that if the fact-finding d

first to the board of review which will be renamed-I hope--indica

are courts and then some final review given to our court-we wou

the court in such a way as to interfere with the administration 

Another subject that I might comment on is command control. 

I think that the law should be improved on command control-

apply only to the convening authority but that it ought to apply to 

advocate or the judge advocate himself. It is a thing that is not ea

from the record as indicated by the questions counsel asked. 

Command control is something that can happen but for the lawy

to be able to raise it sufficiently in the record to show that there h

command control is a difficult thing. 

I share the view that there ought to be a penalty so that an o

directly disciplined for really exerting command control on the in

the court-martial or the lawyers in the case. 

I think the Kitchen case was an example, and we have had ca

that have disturbed me because of the nature of command control. 

I hope that the committee and the Congress will deal with this qu

IDand control. 

Another question that comes up from time to time is the qU'e

nobis, the right of this court to deal with the question, and giving 

the court-definitely by congressional authority-to review its 

Now, the Government has indicated before the civilian court tha

in the military but before the Court of Military Appeals that it 

I think a definite statute would be good to settle this for all th

and for the military and probably among some civilian lawyers. 

I think that is a question that ought to receive consideration by 

Senator ERVIN. Judge, is your view with respect to the undesira

ing in the Court of Military Appeals the power to review admin

charges under less than honorable conditions based upon the pre

workload alone might be such as to impair the work of the court? 

Judge FERGUSON. Yes; that is correct. That is the only reason. 

If there could be some way to act on those cases first screened by 

of review, or an equal lower judicial process and not put them imme

stream of the court-let's say of military justice which the Cou

Appeals now has the duty to oversee. 

Senator ERVIN. I certainly share your view that you have just 

that point. 

'- . f" C'O'~ 42 ."t-_ .br.: 
board sitting as a court of review. 

I believe if Congress would adopt suggestions made by Judge Qui

Court of Military Appeals not be required to review all appeals that 

from the board to the court but have the power to determine as a 

that reasonable grounds for review or good cause must be shown, to 

Quinn's expression, that the number of cases would be small as com

the number of administrative discharges given. 

I think as time went by less appeals will appear simply because the 

hand down authoritative opinions which would be accepted and follo

boards and also those granting administrative judgments. 

Judge FERGUSON. I may be wrong and I would hope that I am w

the number of cases that would come up-I do feel that the court 

amining all courts-martial properly and giving due consideration to 

grave questions we have, many constitutional quef'tions are presente

to time. 

But if the act requires the board of review--{)r whatever name they 

it-to make a finding of fact and a finding of law and then, in some w

cause shown, it would come to the court by a proper screening, it wou

the amount of work that the court might have to do. Also, the requi

a lawyer must show good cause should be included and not like w

present time, merely say I appeal on the merits to justify the peti

for appeal, even though the present rule of law is that he mUf't show 

The court has been very lenient along these lines and has looked 

tirely rather than to take it just for granted that no cause exists if t

I appeal on the merits or not cite any errors and merely file the pe

I think some kind of factfinding which some States require when a j

upon a case could be used in this kind of a case. 

Senator ERVIN. I certainly agree with you in the thought that per

quired to specify the basis on which the decision of review of the m

You cannot operate on any other basis. It would be impossible fo

to operate on any other basis. 

Judge FERGUSON. I merely mention that Congress would want t

that kind of a problem. 

I think generally the committee has done a fine job on bringing th

this action now before the committee. They are needed and it has 

service and I hope that you can accomplish that service by getting 

Congress. 

Senator ERVIN. I would certainly think a precedent established by 

celebrated lawyers. Off the record. 
one has a right to appeal as a matter of law and for the most part 

were intellectually honest and I can say with a good deal of pride 

court had the reputation of handing down decisions soon after a

would say your court is pretty nearly in that class, too. 

I would hope to see an act of Congress in which the Court of Mili

would not lose its capacity to do the high caliber of judicial work 

been doing. 

Senator THURMOND. Judge Ferguson, we are delighted to have yo

I understand it, most of the members of the court are together on m

bills. 

Judge FERGUSON. That is correct. 

Senator THURMOND. Are there any points of difference or any sig

what it means? 

Judge FERGUSON. I cannot recall any except the question that I ha

here on the right of appeal and I give some reasons here today. 

If the protections are had and the court is not swamped, then I 

their view. 

I think we generally agree on the various questions. 

I think we are in agreement on the other matters. 

I have seen a trial judge being swamped. I was a judge on the b

the trial of cases were 45 months and 13 days behind and I have 

sidered that a real denial of justice in many cases. 

These men in the military are not on bond. We must remember th

are entitled to a speedy trial along the lines you provide in the co

Government charges must file within a certain length of time. Th

thing and you even require our court to pass upon a petition within 3

it is filed. 

Sometimes in July and August that isn't a good thing but I think 

law. I merely mention even in July and August, we must keep w

days and I am not objecting to that law at all but I say give leeway 

mer-it may be better-we are getting along and doing it anyway

Senator THURMOND. Again, thank you. I want to express my app

the high standard for work you and the other members of the court a

Senator ERVIN. We certainly appreciate your appearance and yo

in giving the SUbcommittee the benefit of your observations and exper

highly important field. 

Thank you. 

Judge FERGUSON. I am very glad to have been able to appear. 

Senator ERVIN. The subcommittee will stand recessed until 2 :30. 

(Thereupon, at 12 :05 p.m., the subcommittee recessed, to reconv

p.m., Tuesday, March 1, 1966.) 

44 
COURT-MARTIAL ADMINISTRATION 


The number of persons tried by courts-martial for fiscal 

(average strength total Army, 1,096,803) follows: 

Convicted Acquitted 

Generru ________________________________ _ 1,386 90 

Speciru_________________________________ _ 22, 169 952 

Surnrnary______________________________ _ 13,169 847 

Touu____________________________ _ 36,724 1,889 

Records of trial by general court-martial received by T

Advocate General during fiscal year 1966 : 

For review under article 66______________________________________

For examination under article 69________________________________

Total ____________________________________________________

'Vorkload of the Army Boards of Review during the sa

(persons tried) : 

On hand at the beginning of period_______________________________

Ileferred for review_____________________________________________

Total ____________________________________________________

Ileviewed ______________________________________________________

Pending at close of period_______________________________________

Total ____________________________________________________

·This figure includes 18 cases which were referred to Boards of Review 

Article 69, Uniform Code ot Mllltary Justice, and 22 cases on rehearing or re
view pursuant to Article 66 during the fiscal year, 782 

quested representation by appellate defense counse1. 

\Tolving 407 accused were forwarded to the United Stat

Military Appeals pursuant to the three subdivisions of 

Of these 407 cases, 402 "'ere forwarded on petition of 

five were certified by The Judge Advocate Genera1. 

The actions taken by the Court of Military Appeals on 

for fiscal year 1966 were as follows: 

Opinions on petitions: Affirmed __________________________________________________

Reversed __________________________________________________

Certification: Affirmed __________________________________________________

Reversed _________________________________________________

Mandatory review: Affirmed __________________________________________________

Reversed _________________________________._______________

Petitions denied________________________________________________

Petitions granted_______________________________________________

During fiscal year 1966, 377,373 nonjudicial punishmen

posed under Article 15 of the Uniform Code of Military J

a total of 171,365 persons. An additional 2,326 persons w

punishment under Article 15 were tried by summary cour

UNITED STATES ARMY JUDICIARY ACTIVITIES 

In July 1966, the United States Army JUdiciary in conju

The Judge Advocate General's School conducted a semin

bilization designees assigned as Law Officers to the United S

Judiciary. In addition to the ten mobilization designees, 

newly assigned as Law Officers to the United States Arm

and two Law Officers from the Navy Trial Judiciary a

semmar. 

In October 1965, a new Judicial Circuit (Area VII, Circ

created in Vietnam. Its present strength is two Law Offi

Complying with the mandate of Article 6 (a), Uniform C

46 
yp

ing the military justice aspects of that legislation. No legis

reported out of committee as a result of those hearings durin

Congress, but a bill is expected to be reported out of comm

Senate early in the 90th Congress. On 11 July 1966, Repr

Charles E. Bennett of Florida introduced a bill in the Ho

16115, 89th Congress) incorporating most of the substantive 

of the Senate bills and the Department of Defense sponsored 

erally known as the "G" and "H" bills. Those two bills 

viously introduced as H.R. 273 and H.R. 277, 89th Cong

Army was assigned responsibility for preparing the Depa

Defense report on H.R. 16115. The proposed report is be

within the Department of Defense. 

In early 1966 a new departmental policy was adopted c

the filing and disposition of records of nonjudicial punishme

under Article 15 of the Uniform Code of Military Justice. 

purpose of the new policy, which is reflected in appropriate 

AR 27-15 and other directives, is to limit to one year the tim

records of nonjudicial punishment may be considered in 

with promotion of the person punished. Further, the office

punishment may preclude use of the record of punishment i

motion action by an appropriate statement on the face of t

PERSONNEL 

The 67 officers appointed in the Regular Army during 

1966 more than offset the loss of 49 officers, a loss rate tha

tinue for the next few years. At the end of the 1966 fisca

Regular Army strength was 557 and career-reservists num

a total of 1,203 officers were on active duty, the balance being 

four year "obligated tour" officers. I am hopeful that a 

high rate of Regular Army appointments will bring our car

strength closer to the authorized Regular Army strength of 

The need for legal services in Vietnam has brought our stre

to 85 judge advocates. These Vietnam increases, together w
vacancy. During 1966, 34 officers joined our Corps af

their law degrees under the Excess Leave Program. 

EDUCAnON AND TRAINING 

The Judge Advocate General's School, United State

vided resident instruction for 880 students during the c

1966. This instruction was presented in 15 courses. 

Two cycles of the 10-week basic course (formerly calle

class) were completed during 1966. The 44th Special 

students, including two allied officers from Iran, was g

22 April. The 45th Basic Course of 127 students, inc

Royal Thai Army officers, one Republic of China officer

public of Korea officer, was graduated on 21 December. 

The Fourteenth Judge Advocate Officer Career Course 

as the Advanced Course) was graduated from the Schoo

1966. Among its 31 officer students were two officers fr

one from Argentina. The Fifteenth Advanced Course b

of instruction on 6 September 1966 and will be gradua

School on 19 :May 1967. It is composed of 28 students, i

officer from the United States Navy and two officers from 

States :Marine Corps. 

In addition to these two general courses, a number o

tional courses were conducted during the calendar year 

courses were: Law in Vietnam; Procurement Law (th

Civil Law; Civil Affairs; International Law; Foreign La

Advocate Refresher Course; Military Justice; Military 

the Law Officers' Seminar. Attendance numbered over 

including representatives from the Navy, Marine Corp

Coast Guard, National Aeronautics and Space Admini

partment of Defense, National Science Foundation, Fede

Agency, National Security Agency, Post Office Departm

Accounting Office, and the Department of Commerce. 

Five issues and an index to the Procurement Legal S erv

lished and distributed in 1966. Twelve issues are planned 

48 
ranging from "The Code of Conduct in Relation to Int

Law" to "Judicial Review in Military Disability Retireme

Other articles concerned foreign military law, the law of w

late procedure and the settlement of claims. 

During the calendar year, 33 issues of the Judge Advoc

Service were published. The Legal Service insures that ju

cates are aware of all recent developments which may affec

tary legal field by digesting pertinent opinions of the Uni

Court of Military Appeals, the boards of review, and civil

Another project of the School was to provide script coordi

technical advice during the filming of the new training film, 

form Code of Military Justice." This film will be shown to a

when they enter on active duty. 

ROBERT H. MCCAW, 

Major General, USA, 

The Judge Advocate Gene

United States 

g pyg 

mittee Report reach the Armed Services Committees of 

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

embracing calendar year 1966, contains, unless otherwise indic

tistical information covering fiscal year 1966. 

Complying with the requirements of Article 6(a), Uniform 

Military Justice, the Judge Advocate General visited over

in the Pacific and 'Vestern Pacific areas, the Deputy Judge 

General visited overseas bases in Europe, and the Judge 

General, Deputy Judge Advocate General and senior memb

Office of the Judge Advocate General visited numerous c

within the United States in the supervision of the adminis

military justice. 

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

vened within the Navy and Marine Corps totaled 26,936 in 

as compared with 24,565 in FY 1965. This is a definite rever

downward trend in courts-martial cases which has existed f

years. The increase is principally in special courts-martial, 

bad conduct discharges were not adjudged, and in summar

martial. The indications are, therefore, that the increase i

duct has been principally in the misdemeanor category. The 

of substantial numbers of Navy and Marine Corps personn

combat area of Vietnam has apparently not contributed to 

crease. As a matter of fact, although the total number o

Vietnam has materially increased along with the large in

personnel in that area, the current fiscal year rates per tho

serious offenses in Vietnam has been invariably lower, and 

cases substantially so, than rates for the same period in all 

other than Vietnam. 

Navy Boards of Review received for review during FY 

general courts-martial and 2,141 special courts-martial as 

with 264 general courts-martial and 2,158 special courts-ma

ing FY 1965. Of the 2,390 cases received by Boards of Revie

FY 1966, 60% of the accused requested counsel (1,311 cases). 

detailed statistical report is attached as Exhibit A. 
As mentioned in my previous reports, an Ad Hoc Co

sisting of representatives of the Judge Advocates General 

Navy and Air Force has been preparing an updated 

Courts-Martial with a view to having it published in loo

·With very few minor reservations, the Judge Advocate G

Navy has approved the new draft of the Manual except fo

on Rules of Evidence, redraft of which has not yet be

pleted by the committee. An early resolution of all rem

ences of opinion is anticipated. 

The Secretary of the Navy's Task Force on Milita

Retention recommended and the Secretary of the Navy a

year the establishment of "law centers" in areas where th

concentrations of Navy personnel. The concept of th

that as many as possible of the Navy lawyers in a partic

be assigned to a central activity so that the pooling of av

will make possible greater flexibility of assignment o

efficient application of experience, improved coordinatio

and, overall, more efficient utilization of the available l

The necessity for such centers is to be found in the substa

of legal workloads which has occurred in recent year

promises to develop into a "legal explosion" in the no

future. 

Pursuant to the Secretary's approval of the concept o

the first of such centers was established on a pilot bas

this year. Inasmuch as a total of 281,200 active duty nav

retired naval personnel, and dependents of each are lo

Norfolk complex, this location was considered most app

testing area for the untried organization, procedures an

the new la.w center. It is anticipated that the test an

period will extend for approximately six months. 

During the last year, a Joint Subcommittee of the C

Constitutional Rights and Armed Services of the Sena

extensive hearings regarding 18 bills variously pertainin

justice. The Judge Advocate General personally attend

S2 
g

general court-martial case-load serviced in the 'Yestern Pacif

marked increase during 1966, due to the military build-up in 

In May 1966, a branch office was established in Vietnam. 

has proven to be of significant assistance in disposing of gene

martial cases convened in that area. A surveillance of the 

in the ·Western Pacific is maintained regarding the possible ne

assignment of an additional judiciary officer to that area. 

The Navy-Marine Corps judiciary program of providing 

selected officers to serve as law officers continues to be eff

efficient. 1Vith less experienced law officers, the need for 

action due to legal errors would, in all probability, have 

stantially greater, to the detriment of military justice. In 

to the foregoing, judiciary officers serve as presidents of spec

martial when their respective GGM dockets permit. This 

tributes to the overall improvement in the quality of militar

proceedings. 

The U.S. Naval Justice School, operating under the techni

vision of the Judge Advocate,General, continued to offer int

struction in the fundamental principles of military justice

the fiscal year, the School afforded instruction in military jus

clerk duties and court reporting for a grand total of 2,297 o

enlisted personnel of all the armed forces. Six regular sev

classes were convened at the Justice School in Newport, Rho

and one class was convened at Camp Pendleton, Califor

hundred thirteen officers of the Navy, Marine Corps and Co

completed the regular non-lawyer courses of instruction offe

Naval Justice School during the fiscal year. Two hundred 

lawyers of the Navy, Marine Corps and Coast Guard com

seven weeks' officer lawyer course referred to in my report of 

Four hundred thirty-four enlisted members of the Army, N

Force, Marine Corps and Coast Guard were trained to perf

clerk and court reporting duties for their respective sevice

three enlisted and civilian personnel, principally Army, recei
54 
Total ____________________________________________________

Special courts-martial: 

Received for review under article 66__________________________

Received for review under article 65c__________________________

Reviewed in the field_________________________________________

Total _____________________________________________________

Summary courts-martial: 

Received for review under article 6::ic__________________________

Reviewed in the field________________________________________

Total _____________________________________________________

Total all courts-martiaL___________________________________

Board of Review actions: 

On hand for review 1 July 1965________________________________

Received for review during FY 1966__________________________

Total on hand_____________ ________________________________

Reviewed during FY 1966_____________________________________

Pending review on 30 June 1966_______________________________

Total _____________________________________________________

Findings modified by boards of review during FY 1966______________

Requests for appellate counseL____________________________________

Court of Military Appeals actions: 

Petitions forwarded to USCMA_______________________________

Oases certified to USC:\IA by JAG_____________________________

Total cases docketed with USc:~IA___________________________

Petitions granted by tJSCMA__________________________________

Petitions denied by U SCMA___________________________________

Total petitions acted upon by USC!lLL______________________

and has continued to serve as Director. 

2. In accordance with the provisions of Article 6 ( a) , Unif

of J\fi.litary Justice, Major General Robert W. Manss visited 

legal facilities at overseas bases in the United States Air 

Europe, the Pacific Air Forces, the Alaskan Air Command a

ous bases within the United States. Brigadier General ·W

Lumpkin inspected the legal activities of bases in the Unit

Both Generals Manss and Lumpkin attended Bar Associa

ings, and addressed numerous civic, professional, and milita

zations during the year. The Judge Advocate General 

world-wide Major Command Staff Judge Advocates Con

Headquarters United States Air Force in November 1966. 

3. a. The number of records of trial received in the Offi

Judge Advocate General, for review pursuant to article 6

examination pursuant to article 69, during fiscal year 1966

in the following table: 

Total number records received____________________________________

For review under article 66___________________________________

General court-martial records_____________________________

Special court-martial records_____________________________

Examined under article 69____________________________________

The Boards of Review modified the findings andlor se

68 cases. 

b. The workload of the Boards of Review was as follows: 

Cases on band 30 June 1965_______________________________________

Cases referred for review _________________________________________

Total for review___________________________________________

Cases reviewed and dispatcbed____________________________________

Cases on band 30 June 1966_______________________________________
Percent total forwarded of total cases reviewed__________________

Petitions granted______________________________________________

Percent grants of total petitioned_______________________________

Percent petitions granted of total cases reviewed by Boards of Revi

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

were convened in the Air Force: 

General courts-martiaL________________________________________

Special courts-martiaL___.:._____________ ______ __________________

Summary courts-martiaL______________________________________

Total ___________________________________________________

4. Reportable Article 15 Actions, FY 1966. 

Number o

cases 

Total cases_______________________________________ _ 26,251 

Officers _______________________________________ _ 268 

Airmen_______________________________________ _ 25,983 

Punishments imposed: 1 Officers_______________________________________ _ 227 Arrmen_______________________________________ _ 44,231 

Restrictions (over 14 days):
 Officers___________________________________ _ 6 

Airmen___________________________________ _ 4,418 

Correctional custody: Airmen___________________________________ _ 4,521 

Extra duties (over 14 days): Arrmen___________________________________ _ 2,570 

Reduction in grade: Airrnen ___________________________________ _ 17,404 

Forfeiture of pay: Officers___________________________________ _ 98 

ArrIDen __________ - - _ - - _ - _ - - - _ - - - - - - - - - - - - -­ 14,504 

See footnotes a t end of table. 

58 
Officers ___________________________________ _ 15 -

Airmen___________________________________ _ 1,035 -

Appeals denied ________________________________ _ 892 

Officers___________________________________ _ 14 -

Arrmen___________________________________ _ 878 -

Suspension of punishment______________________ _ 8, 738 

Officers___________________________________ _ 6 -

Airmen___________________________________ _ 8, 732 -

Other action __________________________________ _ 1,470 

Officers___________________________________ _ 2 -

Airmen ___________________________________ _ 1,468 -

1 Break-out by ofllcers and airmen not reported until last 6 months of FY 1966. • Of total cases (26,251). 
 3 Of appeals taken (1,050). 


5. During 1966, the Air Force continued its long establish

of furnishing qualified lawyers to all persons tried by speci

martial. This policy was conceived and has been adhered t

with the Air Force theory that an enlightened and progressiv

istration of military justice ,,,ill, on a long-range basis, enh

status of military discipline. It is believed that the very low, 

decreasing, court-martial rate in the Air Force bears out thi

Inasmuch as court-reporters are also employed in Air Forc

court-martial trials, bad conduct discharges adjudged by 

bunals may be approved, if determined to be appropriate. A

a substantial difference in the disabilities suffered under a 

duct discharge adjudged by a special court-martial and one a

by a general court-martial, the full and proper employment o

courts-martial redounds to the benefit of those accused 

whose conduct warrants punitive discharge, but not the a

disabilities resulting from trial by general court-martial. S
affords an insight into the conduct of special court

martia

erally and a review of the quality of justice dispensed by 

This information has proved invaluable to me in the disch

statutory responsibilities of supervising the administratio

in the Air Force and insuring high quality in that adminis

7. The Air Force has not adopted the so-called "field 

concept being tested by some of the other services. The st

cipline in the Air Force has progressed to such a high deg

number of general courts-martial convened within the Air 

such an operation economically unfeasible. Only 258 gen

martial cases ,vere tried in the Air Force during IV66. Un

Force system a much larger number of officers receive valu

ence serving as law officers than would be so under a fiel

system. Such a cadre of experience will facilitate rapid 

in the event of a build-up in Air Force strength. There h

parent no loss of efficiency, and no impairment of the judi

under the Air Force system. Additionally, experience as 

enhances the judge advocate's development, growth and 

other aspects of his work. Nevertheless, the Air Force d

cally re-examine its position on the desirability and pract

judiciary system, as ,yell as of other methods and procedur

mine if such other methods of operation would produce a b

1Vhere changed environments, conditions and circumstanc

the feasibility of changes, the Air Force responds prompt

the continuation of an enlightened administration of milit

S. The Air Force responded promptly to recent decis

Supreme Court to insure that accused airmen receive the p

Constitutional rights accorded the civilian populace. Pe

ification of the application in military law of the principle

by the Supreme Court in Miranda v. Arizona, 384 U.S. 71

2d 882, 86 Sup. Ct. 1772, decided 13 June IV66, all Air Fo

gators were directed to comply with the rules established 

preme Court in that decision. Staff Judge Advocates w

. to furnish a qualified lawyer to all military suspects wh

60 
YOcates throughout the world currently informed of legal a

pertinent developments. Distribution was made weekly of 

of the Boards of Review and the Court of Military Appeals. 

tion of the JAG Reporter was continued. This is a teclmical 

publication containing digests of opinions of the Boards of 

and the Court of Military Appeals, so prepared that the sh

be divided and kept in standard card files. Other opinions, no

directions are also contained in this publication. Recurrin

Letters and Special SUbject Letters are disseminated to a

advocates for their guidance in military justice matters. 

10. Publication of the Air Force JAG Lalo Review, now in i

year, was continued. In addition to its distribution within 

Force and the Department of Defense, the Law Review is also 

uted to about 170 law libraries throughout the country. The 

tendent of Documents considers the Lmo Review to have 

public interest and educational value to warrant its inclusio

select list of Government publications for distribution to de

libraries (PL 87-579). It is currently furnished to and ma

at more than 250 such depository libraries on behalf of the 

tendent of Documents. 

11. The JAG Lmo Review is thus a potent medium for di

tion of information on military law. The May-June 1966 iss

VIII, No.3) was a Special Military Criminal Law Issue, co

]line highly informative articles on matters of contemporary 

in the military justice area. These articles were prepared by 

Hnd lawyers of the Military Justice Directorate of the Office 

.Judge Advocate General. Examples of the subjects treat

"Time of 'Val' and Vietnam," "Trial Preparation and Tria

in Courts-Martial," and "Air Force Clemency and Rehabil

12. To assist judge advocates in their law officer work, 

Force during the year undertook the preparation of a co

new and comprehensive law officer instruction guide. This 

will be published in the first quarter of calendar year 1967. 

other effort to improve the performance of Air Force judge ad
the current Congress. 

14. The Office of The Judge Advocate General has co

supervise and arrange, on behalf of all of the Armed Servic

publication of Decisions of the United States Court o

Appeals and Selected Decisions of the Boards of Review 

Services in the Court-Martial Reports. The same servic

performed in regard to publishing legal opinions of the Arme

and opinions of the Army and Air Force Exchange Serv

Digest of Opinions. 

15. On 30 September 1966, there were 1,247 Judge Ad

active duty. Of these, 675 were members of the Regular 

171 were Career Reserve officers, and 401 were Reserve of

established dates of separation. The Regular officer str

creased by 12 between 30 September 1965 and 30 Septembe

16. At the close of the period of this report, there we

mands exercising general court-martial jurisdiction. 

ROBERT 'V. :UANSS, 

Major General, USAF, 

The J'f.!Alge Advocate Gen

United States A

62 
the Treasury Department submitted pursuant to Article 67 (g

Uniform Code of Military Justice. It is also his final repo

the Coast Guard will soon be transferred from the Treasury 

ment to the new Department of Transportation established by 

Law 89-670 approved October 15, 1966. Accordingly, this 

contains a summary of the figures relating to the total court

business of the Coast Guard under the Treasury Departmen

From the effective date of the Code, 31 May 1951, to the 

fiscal year 1966, the records of 11,965 courts-martial tried or r

under the UC~IJ were received at Coast Guard Headquarters

comprised 181 general courts-martial, 2,912 special courts-mar

8,872 summary courts-martial. 

Of the cases received during this period, 669 were reviewed 

Coast Gual1d Board of Review pursuant to the provisions of 

66 and 69 UCMJ. Fifty-six Board of Review decisions w

mitted for further review to the United States Court of M

Appeals, 50 by petition of the accused and six by certificate 

General Counsel. All six Board of Review decisions certified 

General Counsel were affirmed by the Court of Military Appe

the 50 petitions for grant of review, the Court accepted ei

denied 42. In the eight cases accepted by the Court, the actio

Court affirmed two and remanded five; one case is now pendin

though opinions of the Court of Military Appeals in cases orig

in the Coast Guard constitute less than one percent of the 

opinions published by the Court, some leading cases are nu

among them, including United State8 v. Rinehart, 8 USCM

24 CMR 212; United State8 v. Yerger, 1 USCMA 288, 3 C

United State8 v. Allbee, 5 USCMA 448, 18 CMR 72; United S

Nichols, 2 USGMA 448, 18 CMR 72, and United State8 v. M

14USCMA 265,34 CMR 45. A total of 254 Coast Guard case d

have betm published in the 35 volumes of the official Court-

Reports which have appeared during this period. 

Under the provisions of Articles 26 and 27 of the Code, 264 

have been certified as qualified for duty as law officers or as tr
furnish lawyers for both the prosecution and the defense in 

routine cases. In the past fiscal year 60% of the accused trie

court-martial were represented by lawyers; in 80% of t

which a ba.d conduct discharge was adjudged, the accused h

in only one case reaching the Board of Review did the 

have a lawyer. 

In the fiscal year ending June 30,1966 there were receiv

Guard Headquarters the records of three general cou

95 special courts-martial and 212 summary courts-martial

cases were referred to the Board of Review. During the 

cases were docketed with the Court of Military Appeals. 

The table below shows the number of cases received in 

last five years: 

1966 

--­

3 

95 

212 

310 

-­

1965 

--­

1 

95 

231 

327 

-­

1964 

--­

3 

89 

255 

347 

-­

-

General courts-martial ___________ - - ______ 

Special courts-martiaL___________ - _______ 

Summary courts-martiaL ____ - - - ­ - - __ - ­ __ 

TotaL _______________ - ­ ______ - - __ 

In the 98 principal cases (general and special courts-m

accused had professional counsel in all but 38 instances; 

were cases tried aboard ship or overseas. Sixty-four la

ticipated as defense counsel in 60 cases; 54 ,yere Coast Gu

six were civilians, three were Navy judge advocates and 

Air Force judge advocate. 

There were 94 convictions and four acquittals; two of th

were gained by non-lawyers. Of the 94 convictions, 51 

plea cases. In 23 of the guilty plea cases, the accused ha

agreement; eight of these were negotiated by non-professio

counsel. 

64 
approved by the convening authority; one was set aside by 

pervisory authority and four were disapproved by the Board 

view. Of the remaining nine, one was commuted to a d

punishment, four were remitted on probation by the conven

thority, and one was suspended by the General Counsel. Th

three punitive discharges survived the appellate process unsus

On June 13, 1966 the Supreme Court handed dovm its dec

Miranda v. Arizona, 348 U.S. 436, 86 S. Ct. 1662, enunciating c

constitutional guidelines for the interrogation of persons suspe

crime. On June 15, district legal officers of the Coast Guard ,v

vised that in view of the Miranda decision, whenever an Ar

warning was given, the suspect so warned "'as also to be inform

he had a right to consult a lawyer before being questioned, an

told specifically: "You have the right to haye the lawyer or th

sel designated for you present with you during the interro

The Coast Guard was thus the first armed force to embrace 

randa rules. 

FRED B. SMITH, 

General OO'l.lln8e

Treasury Depart

u s. 80VERNMeNT PRINTINQ OFFle£ •