Dod the 

JUDGE ADVOCATE GENERALS 


of the 

ARMED FORCES 

Dod the 

GENERAL COUNSEL 

of the ~ 

DEPARTMENT OF TRANSPORTATI

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 

For the Period 

October I, 1976-September 30, 1977 

PROPERlY OF u.s. ARMY 

T~E JUDGE ADVOCATE GENERAL'S SCHOOL 

LIBRARY . 

HOUSE OF REPRESENTATIVES 


Dod to the 


SECRETARY OF DEFENSE 


AND SECRETARY OF TRANSPORTATION 

Dod the 


SECRETARIES OF THE DEPARTMENTS OF THE 


ARMY, NAVY, AND AIR FORCE 


PURSUANT TO THE 

UNIFORM CODE OF MILITARY JUSTICE 


For the Period 


October I, 1976-September 30, 1977 


Contents 

JOINT REPORT OF THE UNITED STATES COURT OF MILITARY APP

AND THE JUDGE ADVOCATE GENERALS OF THE ARMED FO

AND THE GENERAL COUNSEL OF THE DEPARTMENT OF TR

PORTATION 

REPORT OF THE UNITED STATES COURT OF MILITARY APPEAL

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY 

REPORT O.F THE JUDGE ADVOCATE GENERAL OF THE AIR FO

REPORT OF THE GENERAL COUNSEL OF THE DEPARTMENT OF TR

PORTATION (UNITED STATES COAST GUARD) 

of the 

u.s. COURT OF MILITARY APPEALS 

and the 

JUDGE ADVOCATE GENERALS 


OF THE ARMED FORCES 


and the 

GENERAL COUNSB. 


DEPARTMENT OF TRANSPORTATION 


October 1, 1976 to September 30, 1977 

The judges of the U.S. Court of Military Appeals, the Judge 

vocate Generals of the military departments, and the General Cou

of the Department of Transportation submit their annual repor

the operation of the Uniform Code of Military Justice pursuan

article 67(g) of the Uniform Code of :Military Justice. 

The Code Comlnittee, consisting of the members designated ab

continued its tradition of meeting quarterly during the fiscal y

Major accomplishments during the present reporting period incl

implementation of the new "Military Justice Reporter" as well 

FLITE digest of all decisions in the "Court-Martial Reports" fo

by military practitioners. The Code Committee also entered into n

tiations with "Shepard's Citations" concerning the feasibility o

veloping a "Military Justice Citator." 

The Code Committee also devoted significant attention toward 

sideration of legislative proposals submitted by various membe

the committee. The Joint Service Committee legislative package 

ceived final DOD approval during liscal year 1977 with the judge

the court taking no formal position on the legislation. Among o

proposals considered by the Code Committee were continuing juri

tion for military trial courts as well as an increase in the numbe

judges for the U.S. Court of Military Appeals for the sake of 

tinuity and predictability as well as to handle the heavy workloa

the court. 
g

:MATTHEW J. PERRY, 

Associate Judge. 

\VILTOX B. PERSOXS, Jr., 

The Judge Advocate General, U.S. Army. 

\VALTER D. REED, 

The Judge Advocate General, U.S. Air Force. 

CHARLES E. McDOWELL, 

The Judge Advocate General, U.S. Navy. 

LINDA HELLER KAl\IM, 

General Counsel, Department of Transportation. 

2 
October 1, 1976 to September 30, 1977 

The judges of the U.S. Court of Military Appeals submit th

report on the administration of the court and military justice to 

Committees on Armed Services of the U.S. Senate and Honse 

Representatives and the Secretaries of Defense, Transportation, Arm

Navy, and Air Force, in accordance with article 67(g), Uniform C

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

THE BUSINESS OF THE COURT 

During the 1977 term, a total of 2,222 cases were docketed in 

court. This total included 2,061 petitions for grant of review, 19 cert

cates of review, and 142 petitions for extraordinary relief. The co

rendered 81 opinions on 78 grants of review, 1 certificate of revi

1 petition for extraordinary relief, and 1 motion to dismiss. Petiti

for grant of review were granted in 354 cases and denied in 1,462 ca

A detailed analysis of the cases processed by the court since May 1

is attached. 

Applications for membership in the bar of the court were recei

from 520 attorneys during 1977. A -special admission ceremony w

held in conjunction with the annual meeting of the American B

Association in-Chicago, Ill., on August 22, 1977. A noteworthy cha

in the 1977 Rules of Practice and Procedure now permits admission 

the bar in absentia. 

NEW RULES OF PRACTICE AND PROCEDURE 

The court promulgated a complete revision of its Rules of Pract

and Procedure on July 1, 1977. Extensive revisions were made in 

procedures for filing petitions for grant of review and in the tim

and contents of required and optional pleadings. In recognition of 

burgeoning activity in extraordinary writs, the rules make extens

provisions with respect to the jurisdiction of the court to issue w

and in the format and content of petitions and briefs filed on the m

cellaneous docket. 
Federal agencies on the Federal Supply Schedule, and to individu

by direct subscri ption. 

APPELLATE ADVOCACY CONFERENCE 

Under the sponsorship of the U.S. Court of Military Appeals 

conjunction with the ~lilitary Law Institute, the Second Ann

Homer Ferguson Conference on Appellate Advocacy was held at 

Georgetown University Law Center on May 18-20, 1977. The princi

address ,vas delivered by Justice Arthur .J. Goldberg. Other dist

guished speakers included Circuit Judge John Godbold of the U

Court of Appeals for the Fifth Circuit, Justice "'Villi am A. Grimes 

the New Hampshire Supreme Court, and F. Lee Bailey, Esq. So

200 uniformed and civilian appellate lawyers practicing before 

Courts of Military Review and this court, the judges of the Courts 

Military Review and the Judge Advocate Generals of the vari

services, and other scholars and commentators in the field of milit

justice were in attendance. 

JUDICIAL VISITATIONS 

During the reporting period, both Chief Judge Fletcher and Jud

Perry made visitations to inspect the operation of military jus

facilities within the armed forces. The chief judge visited Ca

Lejeune Marine Corps Base in Jacksonville, N.C., on .July 13-15, 19

and the Naval Justice School at Newport, R.I., on August 16-17, 19

Judge Perry visited the Judge Advocate General's School, U.S. Arm

in Charlottesville, Va., on April 29, 1977, Keesler Air Force B

Miss., on April 27, 1977, and Vandenburg Air Force Base, Calif., 

May 20-22, 1977. These visits provide the opportunity for the jud

to become acquainted with the personnel who administer the milit

justice system and to obtain firsthand knowledge of the impact of th

caselaw in the field. The judges particularly value the critiques of 

military justice system made by field commanders on these visits. 

SCHOLARLY REVIEW OF THE COURT'S DECISIONS 

Two major articles on the court were published by important le

periodicals during the 1977 term. The Indiana Law Journal p

4 
STAFF REORGANIZATION 

The staff of the court underwent a reorganization in March 

Patterned after the ABA Standards model and the U.S. Circuit C

of Appeals circuit executive, the position of court executive wa

ated. The court executive exercises responsibility as court admin

tor to develop long-range plans and programs to support the c

role in the military justice system. The clerk of court exercises o

tional responsibility in matters of appellate procedure and the 

operation of the court. The central legal staff director exercises o

tional responsibility for the initial review of petitions for grant 

view by the central legal staff. Each judge's chamber continues to 

ate as an independent entity, but receives support from these 

major staff components. 

STATUS OF THE COURT AND ITS EMPLOYEES 

As established in article 67, UC:~IJ, 10 U.S.C. 867, the court i

cated for administrative purposes only in the Department of Defe

From time-to-time since 1951, various questions have arisen con

ing whether tIle court is subject to executive branch or Departme

Defense control. In July 1977, the Bureau of Executive Perso

Civil Service Commission, rendered an opinion that the court was 

side the Commission's purview." Immediately thereafter, the 

issued U.S. Court of Military Appeals resolutions I and II, w

directed that the status quo be maintained by adopting the rel

personnel regulations of the Commission on an interim basis. B

the attendant circumstances could be resolved, 12 of the court'

ployees filed an action in the U.S. District Court for the Distri

Columbia seeking a temporary restraining order, a preliminar

junction, and declaratory relief against the judges of the court

Secretary of Defense, and the Chairman of the Civil Service Com

sion. Miele v. Brown, Civil No. 771346 (D.D.C., filed Aug. 1, 1

This matter resolved on August 29,1977, after dismissing the judg

the court as defendants in the matter, by a stipulation of dism

,vhich in relevant part provides as follows: 

284-323 0 - 79 _ 2 
Court of Military Appeals in 1950 to place the Court's employees under the ci,-il service system administered by the 

Executive Branch departments and agencies under statutes 

and regulations administered by the Civil Service 

Commission. 

* * * * * * * 

* * * This stipulation shall be effective until vacated or modified * * * or until an express statutory change is enacted regarding the status of employees of the Court of Military Appeals." 

This is merely an example of the conflicts which have developed. T

language in article 67 of the Uniform Code of Military Justice wh

places the court "for administrative purposes only in the Departm

of Defense" continues to plague the court, as it has since the cou

creation, as to the proper functions which the Department of Defe

and the court each possess. At times, there has been harmony; at ot

times, there has been discord. Because of the continuing potential c

flict, it now might well be more efficient for the court to perform all 

administrative requirements independently. It, thus, appears that 

time has come for the Congress to readdress and reassess the relati

ship between the court, its employees, and the executive branch of g

ernment. Still another concern is the fact that the U.S. Court of ~f

tary Appeals is the only Federal court without specific statutory l

guage addressing such matters as the retirement and tenure of its 

ployees, as well as the retirement of its judges. Th3 U.S. Tax Co

,vhich, like this court, has been denominated by Congress as "est

lished under article I of the Constitution" (art. 67 (a) (1), UCMJ

U.S.C. 867; 26 U.S.C. 744), has exhaustive enabling legislation t

might well serve as a guide in making the desired changes for t

court. 

6 
tary Review to begin the running of the 30-day period in which 

tition may be filed 'with the court. Second, the court approyed the 

tice which would allow the accused to direct an attorney to re

service of the Court of Military Review decision and to petition 

court for review. Subsequently, the court made it clear that an a

ney who files a petition for grant of review in this court is presum

be so authorized, and absent evidence to the contrary brought for

by the Government an inquiry into such authorization would not b

rected. United States v. Daly, 4 M.J. 145 (C.~LA. 1977). It has 

suggested that these matters warrant legislative consideration as 

Collateral Military Justice Procedures: Certificate of Innocence, Pos

viction Retraining Programs, Pretrial Confinement, and Suspe

Sentence Vacation 

The provisions of 28 U.S.C. 2513 which authorize the issuance 

certificate of innocence under certain circumstances ,,"ere held t

compass an unjust conviction by a court-martial. 'Where the U.S. A

Court of Military Review was an appropriate forum to issue su

certificate, the failure of that court to do so is revi3wable in the 

Court of Military Appeals, but the decision ,vill be reviewed onl

abuse of tliscretion on the part of the inferior court. 

Limitations upon the use of retraining programs as a conditi

the sentence punishment of a court-martial were established in U

States v. Robinson, 3 ~LJ. 65 (C.M.A. 1977). The circumstances o

U.S. Air Force Retraining Group program were found to be pun

not administrative, and the court held they could not be involunt

imposed upon an accused after the adjudged term of confinemen

been served. 

Amplified standards for pretrial incarceration were establish

United States v. Heard, 3 M.J. 14 (C.M.A. 1977). Before an acc

person may be placed in pretrial confinement it must first be a

tained that probable cause exists that a crime has been committed 

that the accused committed it, that confinement is necessary to a

the accused's presence at trial or to protect the safety of the commu

and that lesser forms of restriction or conditions on release have 
the event the probationer will be confined by reason of the violation 

probation and a revocation hearing in which the decision to revoke su

pension must be reduced to a written statement of the evidence a

reasons for the actions. Moreover, the court found that the article 

responsibilities of the special court-martial convening authority cou

not be delegated to another, absent constitutional disqualification 

that officer. 

Command Influence: Separating Command and Judicial Functions 

The relationship between a military commander exercising gene

court-martial jurisdiction and an inferior commander exercising sp

cial court-martial jurisdiction was the subject of an appeal in Unit

States v. Hardy, 4 M.J. 20 (C.M.A. 1977). Focusing on the statuto

responsibilities of the inferior commander, the court held that only t

inferior commander could withdraw a case previously referred f

trial to a special court-martial. Recognizing that there was a line 

demarcation between command and judicial functions, the court 

fused to sanction a superior commander's interference with the judic

actions of a subordinate convening authority which injected the spec

of unlawful command control into the case. 

Pleas of Guilty: Judicial Supervision 

The convening authority's role in reviewing cases in which a milita

judge has accepted a plea of guilty was severely restricted in Unit

States v. Lanzer, 3 M.J. 60 (C.M.A. 1977). The court was unwilli

to accept the proposition that a post-trial review based upon an 

parte conversation could repudiate a proper guilty plea inquiry. Co

sequently, on rehearing at which appellant was convicted on a pl

of not guilty, the convening authority was nevertheless bound to hon

the terms of a pretrial agreement as to which a military judge h

initially accepted the guilty plea. Henceforth, only a trial judge wou

be authorized to modify the terms of a pretrial agreement. Anoth

indication that pleas of guilty once accepted should not be reopen

casually is found in the court's decision in United State.'J v. Barfie

2 M.J. 136 (C.M.A. 1977). In a rehearing on the sentence direct

8 
martial which required counsel before courtsmartial to submit a

tions at a preliminary hearing or to forego them at trial wa

to be inconsistent with the "Manual for Courts-martial," which s

cally provides that while motions should normally be made prior 

entry of a plea, the failure to do so will not constitute "a wai

the defense or objection." Paragraph 67a, MCM. Moreover, the 

was unable to find !tny authority whereby the President had dele

his rulemaking authority under article 140, UGMJ, to the Sec

of the Army, who promulgated the rule in question. United Stat

K el8on, 3 M.J. 139 (C.M.A. 1977). 

Right to Counsel: Effective Representation 

In a major statement on the right to effedive representati

counsel, the court established mandatory guidelines for couns

ercising defense functions in the military justice system. In U

State8 v. Palenius, 2 M.J. 86 (C.M.A. 1977), the court held th

accused was denied the effective representation of counsel when h

advised that he should waive appellate representation when hi

went before the U.S. Army Court of Military Review. The 

went on to mandate that the trial defense attorney must advi

accused otthe appeals process, take any action on behalf of the ac

which is necessary during intermediate reviews, including revi

the staff judge advocate's report and presenting matters to th

vening authority requesting modification or reduction of senten

appropriate; second, the defense attorney at trial should form

appellate issues and discuss them with the client and pass them 

the appellate defense counsel when appointed; third, the trial d

attorney should render the client such advice and assistance, incl

an application for deferment of sentence, which the exigencies 

particular case might require; and, finally, the trial defense att

should not terminate the attorney-client relationship until subs

trial defense counselor appellate defense counsel have been pro

designated and have commenced their duties, and an application 

first be made to the judge or court then having jurisdiction of the 

asking to be relieved of the duty of further representation o

accused. 
the use of evidence of them would be completely prohibited. A perso

who accepts nonjudicial punishment or summary court-martial dis

cipline will be required to make an effective waiver of the right t

forego removal to a criminal proceeding with constitutional protec

tion. Finally, evidence of the imposition of summary court-martia

discipline will not constitute evidence of conviction for purposes o

impeachment. Also of importance to the administration of militar

justice and the obligation of the military departments to provid

the assistance of counsel is the court's decision in United States v

Hill, 41\I.J. 33 (C.1\f.A. 1977). The court characterized the post-tria

interview with the accused as adversary in character, and pronounce

that the accused is entitled to the presence and assistance of counse

at that time. 

Right to Defense Witnesses: Convenience, Credibility, and Cumulativ

Considerations 

The obligation of the prosecution in a court-martial case to produc

material defense witnesses was further delineated in United States v

Willis, 3 M.J. 94 (C.~f.A. 1977). There, notwithstanding that the wi

nesses in question had preyiously testified and their testimony wa

available in the original transcript, a refusal to produce them at a re

hearing on the grounds that their materiality had to be evaluated i

terms of military convenience was flatly rejected. Neither inconven

ence nor cost to the Government will require the defense to accept 

substitute for the trial presence of a material witness on sentencing

The witness question was further elucidated in United States v. J ouan

3 1\LJ. 136 (C.1\f.A. 1977), where the court relied on the rule of rele

vancy and materiality of expected testimony to hold as error the failur

to produce a second defense witness whose credibility and demeano

were considerably stronger than the first witness the Governmen

agreed to produce. The cumulative aspects of defense witness request

were addressed in United States v. William8, 3 1\1.J. 239 (C.M.A

1977). There the denial of two defense witnesses was held to be preju

dicial error because both witnesses could have given material test

mony both on the merits and as to sentencing by virtue of their havin

known the accused during different periods of time than any other wi

nesses. The court also established that when two or more witnesses ar

10 
(1977), the court established a bifurcated procedure for dealing w

classified materials at trial. At a preliminary hearing closed to the p

lic, the trial judge must give the Government the opportunity to 

tablish that the disclosure of classified information can only 

prevented by excluding the public from the trial proceedings. O

the trial judge ascertains that the material in question has been cl

fied by the proper authorities in accordance with appropriate reg

tions, and that there is a reasonable danger that presentation of t

materials before the public will expose military matters which in 

interest of national security should not be divulged, the trial ju

must then define the scope of the exclusion of the public. Only that 

tion of a witness' testimony which is devoted to classified mate

may be restricted to closed sessions of the court-martial. The 

judge sua sponte must instruct the court members both prior to 

testimony and during final instructions as to the underlying basis 

the use of such a bifurcated process. 

Subject-Matter Jurisdiction 

The prosecution of off-base offenses by court-martial was limite

United States v. Alef, 3 M.J. 414 (1977). The court overruled a por

of United States v. Beeker, 18 u.S.C.l\I.A. 56340 C.l\I.R. 375 (19

as being contrary to the Supreme Court of the United States decisio

Relfordv. Oom1tUlndant, 401 U.S. 3D5 (1971). Neither the existenc

a lawful general regulation prohibiting certain conduct nor the d

sion of a military commander to engage in law enforcement activ

outside the military installation automatically renders an off-bas

fense service connected. Henceforth, the court indicated it would 

quire the prosecution both to plead and prove the jurisdictional b

for trial of an accused and the offe~ses. 'Vith respect to the questio

the retroactivity of United States v. illcOartllY, 2 l\f.J. 26 (1976

was held that it would apply to all cases not final on Septembe

1976. 

Substantive Law Changes: The Test of Mental Responsibility 

Because of medical developments and changes in social thought

test of mental responsibility established in paragraph 120b, l\IC:~I, 

modified· by the court in United States v. Frederick, 3 l\I.J. 

(C.l\I.A. 1977), in favor of the definition of insanity propounde
ALBERT B. FLETCHER, Jr., 

Ohief Judge. 

1VILLIAM: H. COOK, 

Assodate Judge. 

:MATTHEW J. PERRY, 

Associate Judge. 

12 
CASES DOCKETED 


Total by service 

Total 

as of 

Oct.l, 

1975 to 

Ort.l, 

1976 to 

To

as 

Sept. 30, 

1975 

Sept. 30, 

1976 

Sept. 30, 

1977 

Sept

19

Petitions (art. 67(b)(3»: 

Army ...................... 16,694 1,093 1,140 1

Navy ...................... 8,524 746 710 

Air Force ................... 5, 728 203 207 

Coast Guard ................ 67 7 4 

Total .................... 31,013 2, 049 2,061 3

Certificates (art. 67(b)(2»: 

Army ........... : .......... 247 12 10 

Navy ...................... 250 6 6 

Air Force ................... 106 4 3 

Coast Guard................ 12 2 0 

Total .................... 615 24 19 


Mandatory (art. 67(b)(I»: 

Army ...................... 31 0 0 

Navy, ..................... 3 0 0 

Air Force ................... 3 0 0 

Coast Guard ................ 0 0 0 

Total .................... 37 0 0 


Total cases docketed ....... 31,665 2, 073 2,080 23

I 2 flag officer cases: 1 Anny and 1 Navy. 

• M.988 cases actually assigned docket numbers. Overage due to multiple actions on the same case

284-323 0 - 79 - 3 
Charges dismissed by order .. . 

Withdrawn ................ . 

Disposed on a motion to dismiss: 

With opinion ........... . 

Without opinion ........ . 

Disposed of by order setting 

aside findings and sentence. 

Remanded ................. . 

Court action due (30 days) 3 •• 

Awaiting answers 3 •••••••.•.• 

Decision affirmed by order... . 

Proceedings abated ......... . 

Writ of error coram nobis 

pending ................. . 

Certificates (art. 67 (b) (2» : 

Opinions rendered .......... . 

Opinions pending 3 •••••...•.• 

Withdrawn ................ . 

Remanded................. . 

Disposed of by order........ . 

Set for hearing 3 ••••••••••••• 

Ready for hearing 3 .•..••.... 

Awaiting briefs 3 ••••••••••••• 

Leave to file denied ......... . 

Motion to dismiss granted ... . 

Mandatory (art. 67(b)(I»: 

Opinions rendered .......... . 

Opinions pending........... . 

Remanded................. . 

Awaiting briefs 3 ••••••••••••• 

3 


443 


8 


62 


8 


230 


147 


115 


2 


1 


o 

588 


4 


8 


5 


2 


o 

o 

7 


2 


1 


37 


o 

1 


o 

5 


5 


o 

10 


1 


310 


136 


75 


41 


1 


o 

4 


3 


2 


o 

21 


2 


o 

1 


o 

1 


o 

o 

o 

o 

5 


6 


o 

11 


5 


55 


152 


292 


33 


1 


1 


1 


17 


o 

o 

2 


o 

3 


2 


o 

o 

o 

o 

o 

o 

4

5

2

Opinions rendered: 

Petitions................... . 

Motions to dismiss.......... . 

Motions to stay proceedings.. . 

Per curiam grants .......... . 

Certificates ................ . 

Certificates and petitions .... . 

Mandatory ................ . 

Petitions remanded ......... . 

Petitions for a new trial ..... . 

See footnotes at end of table. 

2,954 


11 


1 


58 


515 


70 


37 


2 


2 


99 


o 

o 

o 

4 


o 

o 

1 


o 

78 


1 


o 

o 

o 

1 


o 

o 

o 

3, 

14 
Opinion ............... . 

Petition for new trial. ... . 

Motion reopen ............. . 

Petitions in the nature of writ 

of error coram nobis ...... . 

Petition for writ of habeas 

corpus .................. . 

Motion for appropriate relief .. 

Petition (motion to strike) .... 

Miscellaneous dockets (one 

petition reconsidered) ..... . 

Order on miscellaneous docket ................ " .... . 

4 


1 


1 


3 


1 


1 


1 


97 


1 


o 

o 

o 

2 


o 

o 

o 

6 


o 

o 

o 

o 

o 

o 

o 

o 

1 


o 

Total ................... . 3, 770 112 81 • 3

Completed cases: 

Petitions denied ............ . 

Petitions dismissed ......... . 

Charges dismissed by order .. . 

Petitions withdrawn ........ . 

Certificates withdrawn ...... . 

Certificates disposed of by 

order.................... . 

OpinioD,S rendered .......... . 

Disposed of on motion to dismiss: 

With opinion ........... . 

Without opinion ........ . 

Disposed of by order setting 

aside findings and sentence .. 

Writ of error coram nobis by 

order.................... . 

Motion for bail denied ...... . 

Remanded ................. . 

Decision affirmed by order... . 

Proceedings abated ......... . 

26, 765 


33 


3 


443 


8 


1 


3, 663 


8 


73 


8 


3 


1 


232 


2 


1 


1,632 

5 


5 


5 


2 


22 


102 


o 

11 


1 


o 

o 

308 


41 


1 


1,454 


3 


5 


6 


o 


2 


79 


o 

9 


5 


o 

o 


55 


33 


1 


2

Total ................... . 31,244 2,135 1,652 3

Miscellaneous docket numbers assigned: (1967 to present) ...... . 510 118 142 

==================

See footnotes at end of table. 
Withdrawn ................. 


Dismissed .................. 


Issue moot.................. 


Remanded .................. 


Opinions rendered ........... 


Petition for reconsideration 


pending 5 ••.••.••.••••••.• 

Petition for reconsideration 

denied ................... 

Petition for reconsideration 

granted .................. 

Opinion rendered (pet. recon.) . 

Petition for new trial remanded .................. 


Disbarred .................. 


Vacated .................... 


7 

241 

4 

1 

97 

0 

19 

1 

1 

1 

1 

2 

4 

7 

1 

2 

6 

0 

4 

1 

0 

0 

0 

2 

2 

19 

0 

1 

1 

0 

5 

0 

0 

0 

0 

1 

2

1

Total .................... 523 128 149 68

Pending completion as of 

Sept. 30, Sept. 30, Sept. 

1975 1976 1

Opinions pending.................... 5 69 

Set for hearing ...................... 89 34 

Ready for hearing ................... 22 17 

Petitions granted-awaiting briefs ..... 2 25 

Petitions-court action due (30 days) .. 27 136 

Petitions-awaiting replies............ 147 75 

Certificates-awaiting briefs .......... 115 1 

Mandatory-awaiting briefs .......... 7 0 

Writ of error coram nobis............. 0 0 

Total ........................ 409 357 

3 As of Sept. 30, 1Y75, 1976, and 1977. 

• 3,963 cases were disposed by 3.854 published opinions. 176 opinions were rendered in cases involvin

Anny officers, 38 Air Force officers, 32 Navy officers, 9 Marine Corps officers, 2 Coast Guard officers a

West Point cadet. In addition 19 opinions were rendered in cases involving 20 civilians. The remaiader 

c~rned enlisted personnel. 

• As of Sept. 30, 1977. 

• Overage due to multiple actions on the same cases. 

16 
October 1, 1976 to September 30, 1977 

During fiscal year 1977, the Office of The Judge Advocate G

continued to monitor the proceedings of courts-martial, to revie

rrepare military justice publications and regulations, and to de

draft legislative changes for the UC:MJ. 

MILITARY JUSTICE STATISTICS AND U.S. ARMY 


JUDICIARY ACTIVITIES 


The military justice system continued to experience a decline 

number of courts-martial Army-wide. However, the decline w

as precipitous as from fiscal year 1975 to fiscal year 1976. The 

number of persons tried by all types of courts-martial in fisca

1977 declined by 21 percent from the previous year compared t

percent decline from fiscal year 1975 to fiscal year 1976. The 

Humber of persons convicted by all types of courts-martial in 

year 1977 decreased 'by 23 percent from fiscal year 1976. Thi

compared to a 37 percent decline from fiscal year 1975 to fisca

]976. The fiscal year 1977 decline in courts-martial reflecfRd 

in the numbers of general and special courts-martial tried. T

cline in the number of summary courts-martial tried was not s

cant. 

The total number of article 15's imposed during fiscal yea

increased over that of fiscal year 1976. In fiscal year 1977, there 

166,798 article 15's imposed, or approximatdy 20 times the total 

ber of courts-martial tried. In fiscal year 1976, there were 1

article 15's imposed, or approximately 15 times the total num

courts-martial tried during that year. 

Factors which contributed to the continued decline in the c

martial rate were: 

a. Increased use of nonjudicial punishment. 

b. Continued use of administrative procedures to separate s

members who were in trouble or likely to come into conflict wit

itary Jaw. These types of programs significantly lowered the nu

of judicialactions within the Army. 
Decrease 

in persons 

Type court Tried Convicted Acquitted tried over fiscal year 

1976 

(percent) 

General. . . . . . . . . . . . . . . . 1, 163 1, 020 143 21. 

BCD special. . . . . . . . . . . . 844 739 (I) 16. 

Non-BCD speciaL.. . . . . . 4,224 3,601 623 28

Summary. . . . . . . . . . . . . . . 1, 976 1, 679 297 4. 

Overall decrease in persons tried over fiscal year 1976. . . . . . . . . . . . 21. 

I Not avuilabie. 

b. Punitive discharges approved (by GCM convening authority): 

General courts-martial: 

Dishonorable discharges .................................. . 2

Bad conduct discharges................................... . 5

Special courts-martial: 

Bad conduct discharges................................... . 6

c. Records of trial received for: 

Review under art. 66 (GCM) .............................. . 8

Review under art. 66 (BCD SPCM) ........................ . 6

Examination under art. 69 (GCM) ......................... . 3

d. Workload of the Army Court of Military Review: 

Total cases on hand at beginning of fiscal year 1977 .............. . 7

GCM .................................................. . 5

BCD SPCM ............................................ . 1

Cases received for review ..................................... . 1,6

GCM .................................................. . 9

BCD SPCM ............................................ . 6

Total cases reviewed .......................................... . 2, 0

GCM .................................................. . 1,2

BCD SPCM............................................. . 7

Total cases pending at close of fiscal year 1977................... . 3

18 
y

Total petitions granted ....................................... . 

Decrease over fiscal year 1976 ............................. . 

Petitions granted of total cases reviewed by ACMR.............. . 

Decrease over number of cases reviewed during fiscal year 1976 ... . 

g. 	Applications for relief, art. 69: 

Pending at beginning of fiscal year 1977 ........................ . 

Received during fiscal year 1977 ............................... . 

Disposed of ................................................. . 

Granted ................................................ . 

Denied ................................................. . 

No jurisdiction .......................................... . 

Withdrawn .............................................. . 

Total pending at end of F Bcal year 1977 ......................... . 

h. 	Organization of trial courts: 

Trials by military judge alone: 

GCM ..........................·........................ . 

BCD SPCM .............. , ............................. . 

Trials by military judge with members: 

GCM ................................................... . 

BCD SPCM ............................................ . 

i. 	 Complaints under art. 138 received by OTJAG .................. . 

j. 	 Army average active duty strength, fiscal year 1977 .............. . 779

k. 	Nonjudicial punishment (art. 15): 

Number cases where nonjudicial punishment imposed ............ . 166

Rate per 1,000 average strength ............................... . 21

Increase over fiscal year 1976 .................................. . 10

The U.S. Army Judiciary 

The U.S. Army .Judiciary is an element of the U.S. Army Le

Services Agency. It consists of the U.S. Army Court of Military R

view, the Clerk of Court, the Examinations and N"ew Trials Divisi

and the Trial.Judiciary. 

The Agency also includes the G~)Vernment Appellate Division, 

Defense Appellate Division, and the Contract Appeals Division. T

latter division has no function related to the U.S. Army Judiciary a

its court-martial mission. 

The last of the 14 military magistrates assigned in 1976 were pha

out during the year and their functions, including' pretrial confi

ment reviews, were assumed by military judges assigned to the U

Army Judiciary. 
(py y 

staff. 

Automated Military Justice Information System 

Coordination began with the U.S. Army Management Systems Su

port Agency (USAMSSA) to automate court-martial and nonju

tial punishment data being stored on punchcards at the U.S. Arm

Legal Services Agency (USALSA). The project goal was to facilit

retrieval of military justice data at USALSA, where the sole me

of retrieving information from punchcards ,vas by electric sort

Once information had been retrieved by punchcard, it then was 

corded by hand. This archaic process was not responsive to the nee

of management and was wastdul of personnel resources. ,York beg

to transfer the data base from the punchcards to computer disk-pac

for the USAMSSA computer. Analysis of proposed computer p

grams was initiated with a view tow'ard full utilization of the d

base, as well as the computer's capability of analyzing large amou

of data. 

Change to Military Justice Regulation 

Change 17, Army Regulation 27-10, :M:ilitary Justice, was prepar

in fiscal year 1977 with an effective date of 1 November 1977. T

change incorporated all outstanding message changes to AR 27

and introduced several new procedures not previously covered. So

of the significant changes included changing distribution of DA Fo

2627, Record of Proceedings under Article 15, UGMJ, to replace arti

15 orders formerly required; remoYing the restriction against su

mary courts-martial adjudging confinement unless the accused is r

resented by legal counsel; establishing procedures for detailing co

sel when pretrial confinement is imposed; clarifying when article 

punishments involving deprivation of liberty are stayed pending 

peal; incorporating the extended military magistrate program, 

cluding authority for military judges to perform magisterial duti

and establishing policy prohibiting multiple representation by m

taryattorneys. 

20 
of 97.2 percent in the previous reporting period. 

LITIGATION 

Litigation involving the Army during fiscal year 1977 had o

limited impact upon military justice matters. 

A number of cadets at the U.S. Military Academy brought s

various Federal courts attacking their separation from the Aca

for cheating. In Williamson v. United State8, the U.S. District 

for the District of Rhode Island granted summary judgment f

Government, upholding the use of internal review panels to in

gate charges of honor code violations. In D'Arcangelo v. Berr

U.S. District Court for the Southern District of Kew York hel

plaintiff cadet had no standing to challenge the authority o

Secretary of the Army to promulgate U.S. )filitary Academy re

tion 1-6. This regulation permitted cadets charged with honor 

yiolations to resign from the Military Academy on the condition 

could reapply the following year. The court concluded that th

ercise of this action by a cadet was voluntary and that no i

was suffered by cadets choosing to leave the Academy in this ma

The U.S. Court of Appeals for the Second Circuit affirmed the 

sion of the District Court in Ringgold v. United State8, holdin

the separation of cadets for violating the honor code was with

statutory authority of the Secretary of the Army. 

In Curry v. Secretary of the Army, plaintiff challenged the 

E.titutionality of the Uniform Code of :Military Justice in the 

District Court for the District of Columbia, alleging that the co

jng authority was giyen authority which denied the accused 

process. Briefs were filed and a de~ision was pending at the end 

fiscal year. 

EDUCATION AND TRAINING 

Throughout fiscal year 1977, The Judge .A.dvocate General's S

U.S. Army, continued to playa vital role in the training and e

tion of uniformed and civilian military lawyers and selected 

manders. A total of 50 resident courses of instruction were pres

at the schoQl at Charlottesville, Va., and attended by 2,399 stud
inal la\v, 84 hours of instruction related to administrative and ci

law, 19 hours of instruction related to procurement law, and 14 ho

of instruction related to international law. In addition, 23 hours 

elective instruction were offered for officers to be assigned overse

Instruction in criminal law topics included 8 hours of practical ex

cises in trial techniques and 18 hours of practice court exercises 

signed to develop practical application of legal principles and eff

tive trial advocacy. 

The 25th Judge Advocate Officer Advanced Class attended by 

student-officers-45 Army, 1 Navy, and 5 Marine~ommenced on 

August 1976, and graduated on 31 ~Iay 1977. The 26th Judge Adv

cate Officer Advanced Class began on 22 August 1977, attended 

57 student-officers; 48 Army, 1 Navy, 4 Marine, and 4 Allied offic

The advanced course, recognized by the American Bar Associat

as a graduate-level law program, consists of 28 semester hours of c

curriculum and 14 semester hours of elective courses. 

The resident continuing legal education courses presented by 

school during fiscal year 1977 included a qualification course for m

tary trial judges, new defense trial advocacy courses, training cour

for paralegals both in the field of criminal law and legal assistan

basic and advanced procurement attorney courses, fiscal law and c

tract costing courses, law of war instructor courses, and several cour

highlighting recent developments in the fields of administrative l

and military justice. These courses were presented to both active d

and Reserve personnel, as well as Federal civilian employees, a

ranged in length from 3ljz days to 3 weeks. The school continued 

expand the breadth of its course offerings in fiscal year 1977 by p

senting new courses in claims, government information practices, a

defense trial advocacy. 

In addition to presenting instruction to attorneys and parap

fessionals, the school also conducted six resident 'Senior Officer Le

Orientation Conrses and one nonresident course presented at the U

Army 'Var College, Carlisle Barracks, Pa. These 4ljz-day courses 

taught to senior command and staff officers and are designed to fam

iarize students with fundamental legal principles involved in the 

22 
l'esen'e component members. 

Major Projects 

The International Law Division developed a team-teaching co

for law-of-...var instructor training. Teams composed of a mil

attorney and another officer with command experience, preferab

combat, were trained together and upon graduation returned to 

home installation to continue functioning as a team in presentin

struction on the Hague and Geneva Conventions. In March 197

member of the International Law faculty served as a delegate to 

European ned Cross seminar in ",Varsaw, Poland, on disseminatio

the Geneva Conventions of 1949. 

During fiscal year 1977, the Criminal Law Division developed, 

put into use, computer-assisted instruction in the law of A "'VO

On 3 March 1977, the Kenneth J. Hodson lecture in criminal 

was presented by Dean A. Kenneth Pye, Chancellor, Duke Univer

On 25 August 1977, the Edward H. Young lecture in military 

education was presented by Professor H. H. Baxter, editor-in-c

American Journal of International Law. 

On 27 May 1977, a third honorary academic chair commemo

by an annual lecture, the Charles L. Decker Chair of Administr

and Civil Law, ,,'as dedicated by Maj. Gen. Charles L. Decker, U

(ret.). The first occupant of this honorary academic chair was Lt. 

Peter J. Kenny, chief of the school's administrative and civil law 

sion. Lt. Col. Kenny and his successors will hold the chair during 

period of their respective tenures as division chief. 

In April the school hosted the Associated Schools Command

Conference with over 35 conferees in attendance. 

Eighteen German jurists and senior prosecutors were briefed on 

operation of the school and the military legal system in May. L

in the month, the school hosted two standing committees of the Am

can Bar Association: The Committee on Lawyers in the Armed Fo

and the Committee for Military Law. 

The attorney general of the Commonwealth of Virginia condu

a conference at the school on 29 June 1977 for military attorneys 

work in Virginia. 
advocate officers representing military law centers, J AGSO deta

ments, Army Reserve commands, training divisions, garrisons, ci

affairs units and support commands attended. 

The school hosted the "Worldwide JAG Conference, 11-15 Octo

1976. Judge adyocates stationed throughout the United States a

from commands in foreign countries conferred on themes of curr

interest to the military legal community. 

The Commandant attended the midyear and the annual joint me

ings of the Association of Continuing Legal Education Administ

tors and the American Bar Association. 

PERSONNEL, PLANS, AND POLICIES 

Excluding law students, the average strength of The Judge Ad

cate General's Corps for fiscal year 1977 was 1,514. Represent

minority groups were 57 blacks, 11 Mexican-Americans, and 55 wom

The fiscal year 1977 average strength compares with an average 

1,588 in 1D76 and 197T, 1,590 in 1975, 1,571 in 1974, and 1,554 in 19

The ayerage strength of the corps has stabilized and should rem

relatively constant for the foreseeable future. The grade distribut

of the corps was: 6 general officers, 75 colonels, 153 lieutenant colon

140 majors, and 1,151 captains. There were also 58 warrant officers. 

addition, 132 officers 'were participating in either the excess leave 

fully funded education programs. 

To insure that the best qualified candidates were selected, form

boards were convened under The Judge Advocate General's writ

instructions to select candidates for initial commissions, the Jud

Advocate Officer Advanced Course, and career status. 

In February 1977, a selection board was convened to select 25 acti

duty commissioned officers to commence law school under the fund

legal education program. 

Notwithstanding the recent trends toward a larger percentage 

career judge advocates, there is still a shortage of field grade offic

On 9 February 1976 the Secretary of the Army approved, for p

poses of temporary promotion, separate judge advocate promotion c

sideration through the grade of colonel, and deeper zones of conside

tion than on the Army promotion list. This resulted in a decrease 

24 
Two officers received advanced degrees from civil schools und

fully funded graduate school program. 

In January 1977, the establishment of "Additional Skill Ide

7B-Court Reporter," for use with MOS 313A, legal adminis

technician, was announced. A 5-year test program to evaluate th

zation of warrant officer court reporters was initiated. On 14 

1977, six enlisted court reporters were selected for appointment a

rant officers. All of these warrant officer court reporters have be

pointed and are performing court reporter duties. 

Effective 1 April 1977, The Judge Advocate General adopted a 

of deferring the certification of judge advocates as defense c

until they had acquired at least four months of military justice e

ence and receive a favorable recommendation from their staff 

advocate and the military judges before whom they have practi

'VILTON B. PERSONS, Jr., 

111ajor General, U.S.A., 

The Judge Advocate Gen

United States Army 
THE JUDGE ADVOCATE GENERAL OF THE NAVY 

pursuant to 

THE UNIFORM CODE OF MILITARY JUSTICE 

for the period 

FISCAL YEAR 1977 

Supervi8ion of the admini8tration of military jU8tice.-Complyin

with the requirements of article 6 (a) , Uniform Code of .:\Iilitar

Justice, the Judge Advocate General and the Deputy Judge Advoca

General continued to visit commands within the United States, Europ

and the Far East in the supervision of the administration of militar

justice. 

Court-martial 1.oorkload.-a. There has been a decrease in the tot

number of courts-martial during fiscal year 1977. (See exhibit A a

tached to this report.) 

b. During fiscal year 1977, the Navy Court of .:\Iilitary Review re

ceived for review 295 general courts-martial and 1,84:0 special court

martial, as compared with 632 general courts-martial and 3,4:4:6 spe

cial courts-martial during fiscal year 1976 and fiscal year 197T. O

2,135 cases received by the Navy Court of Military Review, 1,479 ac

cused requested counsel (69 percent) . 

Navy-Marine Corp8 Trial Judiciary.-The Navy-Marine C{)rp

Trial Judiciary provided military judges for 482 general courts-mar

tial during fiscal year 1977, a decrease of 138 cases from the 1976 leve

of 620 general courts-martial. In 1977, 60 percent of the general courts

martial were tried by courts constituted with military judge alone

This is 2 percent less than general courts-martial tried by court

constituted without members during 1976. 

The Navy-Marine Corps Trial Judiciary supplied military judge

for 4,777 special court-martial trials during fiscal year 1977, a decreas

of 414: cases from the 1976 level of 5,191. In addition, circuit militar

judges of the Navy-~Iarine Corps Trial Judiciary nominated ad ho

26 
ning level at the close of fiscal year 1976. Sixteen special courtm

military judges are assigned to the Navy-)fal'ine Corps Trial Ju

ary, a decrease of three from the manning level at the close of 

year 1976. 

Military judges and clerks of court of the Navy-Marine Corps 

Judiciary attended a variety of professional meetings and sem

during fiscal year 1977. Some 15 military judges attended the a

Judge Advocate General's Conference held in ·Washington, 

18-22 October 1976. One general court-martial military judge atte

a regular 3-week trial judge's. course at the National Colle

the State Judiciary, Reno, Nev., during the period 11-29 Oc

1976; one attended a I-week evidence specialty course at the Na

College of the State Judiciary; one participated in the America

Association National Institute on exclusionary rules functioning 

in the fourth, fifth and sixth amendments at New York, N.Y.

one participated in the 1977 military justice seminar west coas

sion sponsored by the Federal Bar Association. One special 

martial military judge also attended the I-week evidence spe

course at the K ational College of the State Judiciary and an

attended a I-week military judges seminar at the Air Force J

Advocate General's School, )faxwell Air Force Base, Ala. One 

legalman attended a 3-clay workshop sponsored by the Na

Association'of Legal Assistants at San Francisco; another atte

a 4-day Bureau of Naval Personnel Discipline Command semin

Newport, R.I. One sergeant attended an advance legal services c

sponsored by the Commandant of the Marine Corps at Camp Pe

ton, Calif., from 19-30 September 1977. 

Naval Legal Service.-The Naval Legal Service (NLS) now 

sists of 18 naval legal service offices and 16 subordinate branch 

located throughout the world. The- total manpower strength autho

tion for the NLS includes 281 judge advocates, 183 legalmen

166 civilian employees. Navy judge advocates in the NLS com

approximately one-third of the Navy's total judge advocate stre

The NLS, under the direction of the Judge Ad,·ocate Gene

his capacity as Director, Naval Legal Service, through consolid

of availa.ble legal resources at locations with a high concentrati

naval commands, has been able to provide timely response to req
qy 

Article 69 petitions.-The number of petitions filed under artic

69, Uniform Code of Military Justice, pursuant to which the Judg

Advocate General may vacate or modify the findings or sentence o

courts-martial which have been finally reviewed under article 76, bu

have not been reviewed by the Navy Court of Military Review, ha

remained relatively constant. 

In fiscal year 1977, 76 petitions were received by the Judge Advoca

General. Seventy-two petitions, including 23 from fiscal year 197

and fiscal year 197T, were reviewed during fiscal year 1977 and reli

was granted, in whole or in part, in 21 of the petitions. Pending revie

at the close of fiscal year 1977 were 45 petitions. The following di

position was made of this total of 117 petitions: (a) 51 petitions we

denied, of which 15 were from fiscal year 1976 and fiscal year 197T

(b) 21 petitions were granted in whole or in part; (c) 19 petitions, o

of which was from fiscal year 1977, are being held pending decision b

the U.S. Court of Military Appeals in the case of United States 

Redmond, 32,049; (d) 26 petitions, all of which are from fiscal ye

1977, are still pending review. 

New trial petitions.-In fiscal year 1977, 12 petitions for new tria

were submitted pursuant to article 73, Uniform Code of Military Ju

tice. Three petitions, received in fiscal year 197T ~nd pending at th

conclusion of fiscal year 197T, were acted upon by the Office of th

.rudge Advocate General in fiscal year 1977, one of which was referr

to the U.S. Court of Military Appeals. One petition, received in fisc

year 1976, pending at the conclusion of fiscal year 1976, was partial

granted within the Office of the Judge Advocate General in fiscal ye

1976. The following disposition was made of these 16 petitions: (

One petition from fiscal year 1976 was partially granted; (b) two pe

tions from fiscal year 197T were denied; (c) three petitions, one 

which was from fiscal year 197T, were forwarded to either the Na

Court of Military Review or the U.S. Court of Military Appeals, 

cases still pending review; (d) six petitions were denied; and (e) fo

petitions were pending as of 30 September 1977. 

Annual Judge Advocate General's Oonference.-a. A conference 

judge advocates from all major Navy and Marine Corps commands w

28 
advocates. Additional seminars addressed ethics, Freedom of I

mation and Privacy Acts, environmental law, tort claims, labor 

tions, personnel claims, foreign criminal jurisdiction, internat

law, investigations, admiralty, administrative discharge proced

legal assistance and taxation, and the ~Iy Lai affairs. 

b. This annual conference of judge advocates has once again de

strated the tremendous benefit which can be derived when judg

vocates from all over the world have the opportunity to particip

seminars concerning areas of mutual concern which have arisen d

the past year. Plans are already underway for a similar conferen

October 1977. 

Naval JU8tice School.-Courses of instruction in military law 

related administrative matters were presented by the Naval Ju

School during fiscal year 1977 to 1,998 officers and enlisted pers

of the Armed Forces. 

A total of 994 Navy, Marine Corps, and Coast Guard office

ceived instruction designed for commanding/executive officers. 

prior years, this command-level instruction was presented both 

school and at locations of fleet concentration. 

Three hundred forty-six Navy, Marine Corps, and Coast Guard 

lawyer junior officers received traini.ng for duty as unit legal offic

One hundred ninety Navy and Marine Corps lawyers were tr

for service as judge advocates. 

One hundred thirty-one lawyer reservists of the Navy and M

Corps were provided basic or refresher training in military law

Fifteen Navy and Marine Corps judge advocates newly assign

duty in the Navy-Marine Corps Trial Judiciary attended a c

presented for military judges. 

Two hundred two Army, Navy, and Coast Guard enlisted pers

were trained to perform legal clerk duties and 121 to perform 

reporting duties. 

In addition to its formal courses of instmction, the Naval J

School presented instruction on search and seizure, right to co

and administrative proceedings to 3,108 officers at other Navy s

in Newport, R.I., and New London, Conn. 
Joint-Service Oommittee on Military Justice.-The primary fun

tion of the Joint-Service Committee on Military Justice is the prep

ration and evaluation of proposed amendments and changes to t

Uniform Code of Military Justice and the "Manual for Courts-Ma

tial, United States, 1969 (rev.)." It also serves as a forum for the e

change of ideas relating to military justice matters among the service

In the past, the committee has mainly considered proposals and ide

generated within the services. In 1976 it was given responsibility f

commenting on matters that came from outside the services as well. 

The proposed legislation on improving the efficiency of the milita

justice system, noted in last year's report, continued on its way 

Capitol Hill. During the period of this report, the draft bill was r

ferred by the Department of Defense to the Office of Management a

Budget for review and clearance by other executive departments a

fected. It is expected that the draft bil1 will be submitted by the D

partment of Defense as part of its legislative program for the seco

session of the 95th Congress. 

At the request of the Office of the General Counsel of the Depa

ment of Defense, the Joint-Service Committee commented on a bill 

amend the Uniform Code of Military Justice prepared by the Com

mittee on Military Justice and Military Affairs of the Association 

the Bar of the City of Kew York. The committee's comments we

delivered in February 1977. 

During the period of this report, the Joint-Service Committee co

tinued its study of the concept of legislative changes to create cour

martial exercising continuous jurisdiction. The working group of t

committee will continue its work on this proposal in the coming ye

with a view to drafting legislative proposals embracing the continui

jurisdiction concept. 

The working group of the Joint-Service Committee is also unde

taking a thorough review of the rules of evidence contained in t

"Manual for Courts-)fartial, United States, 1969 (rev.)," in light 

the experience of the Federal courts with the Federal rules of evidenc

It is anticipated that changes designed to more closely align milita

and civilian practice in this area will be recommended. 

30 
Assistant Judge Advocate General (Military Law); the Assi

Judge Advocate General (Military Personnel and Managemen

representative of the Commandant of the Marine Corps; and the 

ecutive Assistant to the Judge Advocate General who acts as reco

Appropriate action was taken under the provisions of section 014

the "Manual of the Judge Advocate General" in five cases broug

the attention of the Judge Advocate General. 

Ci'i'illitigation.-During the period of this report, the Judge A

cate General worked closely with the Justice Department in se

civil litigation cases having potential impact on the military ju

system. Assistance was provided to the Department and to va

U.S. attorneys, including preparation of legal memorandums and 

gation reports; preparation of briefs and motions in conjunction 

a U.S. attorney; and preparation of U.S. attorneys for oral argum

before Federal courts. A few of the more significant cases and i

involved are set forth below: 

a. Allison v. Saxbe.-This case considered the proper scope of re

for court-martial convictions in federal habeas corpus proceed

The petitioner was a Navy seaman convicted by court-martial of a

in a $7.5 million fire aboard USS Forrestal. After his escape 

Portsmouth Naval Disciplinary Command, the petitioner was at 

for 6 months before he surrendered to military authorities in Oc

1974 at San Francisco. Promptly thereafter, he filed a petitio

habeas corpus in the U.S. District Court for the Northern Distri

California. The district court denied Allison's petition in a m

randum opinion of 5 September 1975. His appeal of the district co

action is currently pending before the U.S. Court of Appeals fo

Ninth Circuit. 

b. Priest v. Secretar1J of the Navy.-This case assessed the sco

freedom of the press under the first amendment available to mem

of the military services. The U.S. District Court for the Distri

Columbia granted the Government's motion for summary judgm

The plaintiff appealed to the U.S. Court of Appeals for the Distri

Columbia Circuit, where oral argument ,vas heard in March 

c. Williamson v. Secretary of the Na'i'y.-This case raised issu

federal court jurisdiction to review courts-martial, and an al
32 
PART 5 - APPELLATE COUNSEL REQUESTS BEFORE NAVY !COURT OF 

MILITARY REVIEW 

PART 6 - U. S. COURT OF MILITARY APPEALS ACTIONS 

PERCENTAGE OF COMR REVIEWED CASES FORWARDED TO USCMA 30% 

PERCENTAGE OF INCREASE/DECREASE OVER PREVIOUS 

REPORTING PERIOD 5% ~~~/DECR

PERCENTAGE OF TOTAL PETITIONS GRANTED 13% 

PERCENTAGE OF INCREASE/DECREASE OVER PREVIOUS 

REPORTING PERIOD 12% ~/DECR

PERCENTAGE 0 F PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMR 4% 

-'nterlm figures based on difference between 197T estimated figures and last quarter actual figures less 5 Field Commands. 


NOTE: Rate of Increase/Decrease and Per~ntages of Increase/Decrease are based on comparison of Fiscal Year 1976 (1 July 197

1976, with Fiscal Year 1911. Whole numbers reflect actual difference between reporting periods and percentages reflect percenta

Increase or decrease. 

PART 9 - COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 127 

PART 10 ­ STRENGTH 

-'nterlm figures based on difference between 191Testlmated flgures and last quarter actual figures less 5 Fleld Commands. 

NOTE: Rate of Inerease,rDecrease and Percentages of Increase/Decrease are based on comparison 01 Fiscal Year 1976 (l July 1975 ·30 

1976) with Fiscal Year 1911. Whole numbers reflect actual dltterence between reporting periods and percentages refleet percentage of 

Increase or decrease. 

34 
October 1, 1976 to September 30, 1977 

Maj. Gen. "Walter D. Reed, the Assistant Judge Advocate Gen

was named the Judge Advocate General on October 1, 1977, succee

Maj. Gen. Harold R. Vague, who retired. Brig. Gen. James Ta

,Jr., Director of Ciyil Law, was named the Assistant Judge Advo

General. 

In compliance with the requirements of article 6 (a), Uniform 

of Military J"ustice (UG.MJ), Generals Vague, Reed, and Taylor m

official staff visits to legal offices in the United States and oversea

addition, they att€nded yarious meetings of professional civil 

military organizations. 

The fourth and final session of the Diplomatic Conference on 

Reaffilmation and Development of International Law Applicab

Armed Conflict conyened in Geneva, Switzerland, on March 17 

closed on June 10, 1977, after 4 years and four sessions (previou

sions were held in 1974, 1975, and 1976). These diplomatic confere

ha,'e been convened by the Swiss Government for the purpose of 

plementing the 19-19 Geneva Convent-ions with new protocols. The 

delegation included military la\"yers assigned by the ,Judge Advo

General of each service. There were 109 nations participating, 

numerous observers and national liberation movements. Two new 

tocols for armed conflict were adopted. The first protocol strengt

protection for combatants by insuring wider application of pris

of war status for both regular and irregular forces. 

Of special interest to the Air Force under protocol I are: 

(1) Protection of medical aircraft; 

(2) Prohibition of use of enemy uniforms, insignia, or emblem

shield or protect military operations; 

(3) Protection for descending airmen; 

(4) Limitation on attacks by bombardment of populated areas 

taining separate and distinct military objectives, and; 

(5) Codification of existing customary rule that civilian casua

and damages to civilian property are not unlawful-provided 

losses are incidental to an attack on a legitimate military objective

those civilian losses are not excessive to the military advantage sou
During 1977, the judiciary directorate of the Office of the Jud

Advocate General processed in excess of 1,515 actions involving m

tary justice. The directorate has the overall responsibility of sup

vising the administration of military justice throughout the U.S. A

Force from the trial level through the appellate review process, p

suant to the provisions of the "Manual for Courts-Martial, 1

(Rev.)," and the UCMJ. In addition, the directorate had the s

responsibility for the Office of the Judge Advocate General in all A

Force military justice matters which arise in connection \vith p

grams, special projects, studies, and inquiries generated by the A

Staff; Headquarters USAF; the Secretaries, Departments of Defen

Army, Navy, and Air Force; Members of Congress; and abher in

ested Federal, State, and civil agencies. Some of the directora

activities are discussed below: 

a. Three Air Force Court of Military Review decisions were ce

fied by the Judge Advocate General to the Court of Military Appe

during calendar year 1977. Opinions were requested on a number 

important subjects including whether the action of the military ju

in showing the sentence worksheet to the trial defense counsel con

t.uted an announcement of the prepared sentence which precluded f

reconsideration by the court members; clarification of the stand

for evaluaJtin,'S whether clemency should be extended to an accus

and the definition of "official conduct" in relation to article 31 

search and se.izure. 

b. The judiciary directorate also serves as the action agency for 

review of applications submitted to the Board for Correction of M

tary Records. There were 317 formal opinions provided to the Sec

tary of the Air Force concerning those applications. 

c. The directorate also received 430 inquiries in specific cases requ

ing either formal written replies or telephonic replies to senior exe

tive officials, including the President or to Members of Congress. 

AMJAMS 

Analysis of the operation of the Automated Military Justice Ana

sis and Management System (AMJAMS), implemented Air For

36 
offices both within and outside the Department of Defense. Thes

cial reports include a study on Air Force members tried in ov

locations conducted by the General Accounting Office, a stu

A1VOL and desertion rates for the ~\'ir Foree posture statem

study on percentage of cases ending in acquittal, and a study to 

mine the accuracy of military justice information in the officer 

system at the Air Foree Military Personnel Center. 

Trial Judiciary 

The Air Force Trial Judiciary began its year with 32 trial j

located at 18 different locations throughout the world. In ord

better manage its personnel resources, the trial judiciary has 

reducing the number of its districts and consolidating them 

circuit offices. During the year, the Eglin Air Force Base and 

Air Foree Base districts were closed and consolidated with the S

Circuit Office at Maxwell Air Force Base. The 1Vright-Patterso

Force Base, Ohio, and the Luke Air Force Base, Ariz., offices 

closed. By the end of the year, the number of trial judges were re

to 29, stationed at 12 different locations. 
FOR REVIEW UNDER ARTICLE 66 - BCD SPECIAL COURTS-MARTIAL 

PERCENTAGE OF COMR REVIEWED CASES FORWARDED TO USCMA 

PERCENTAGE OF INCREASE/DECREASE OVER PREVIOUS 9.6% 


REPORTING PERIOD 


PERCENTAGE OF TOTAL PETITIONS GRANTED 


PERCENTAGE OF INCREASE/DECREASE OVER PREVIOUS 
 23% REPORTING PERIOD 

PERCENTAGE 0 F PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMR 

INCREASE/DECREASE 

36.2% 

INCREASE/DECREASE 

33.8% 

38 
WITH MEMBERS 

PART 9 - COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 66 
convening authority will determine only whether the case should 

referred to trial and/or whether clemency is warranted rather th

being required to make legal determinations relating to the sufficie

of the evidence before and after trial; (c) the Judge Advocate Gene

is given the power to modify or set aside the findings or sentence i

general court-martial not subject to appeal to a court of military 

view; and (d) "videotape" is allowed for use as a trial record. 

PREVENTIVE LAW PROGRAM 

The preventive law program established in 1974 continued to m

its primary objective of improving the accomplishment of the A

Force mission through enhancement of discipline and morale throu

education and information and its secondary objectives of educat

and informin,'S Air Force members in such a way that the objecti

of the law may be achieved largely by self-discipline; persuading A

Force people to seek professional legal guidance in learning and ex

cising their legal rights and obligations; and providing command

and Air Force members a broad channel of communication on the s

ject of avoiding problems. 

ESTABLISHMENT OF THE USAF CENTRAL LABOR LAW OFFICE 

During 1977, seven attorney and four administrative positions w

committed to establish the USAF Central Labor Law Office (CLLO

located in San Antonio, Tex. This office is expected to be fully mann

and operational in 1978. 

The principal duties of the eLLO include providing direct rep

sentation in administrative third-party proceedings under E.O. 114

concerrling unfair labor practices and representation cases; provid

representation, upon request, in other administrative t!hird-party p

ceedings involving impasses, arbitrable matters, EEO complaints a

adverse action appeals; disseminating significant labor law develo

ments to judge advocates in the field; providing legal advice and 

sistance to HQ USAF/DPC's Office of Civilian Personnel Operation

and providing, upon request, legal advice and assistance concern
The Judge Advocate General's School, Air University, :Max

AFB, Ala., taught the following resident courses: 

a. The Judge Advocate Staff Officer Oourse.-This 6-week co

provides the basic educational tools for an attorney, new to the 

Force, to practice military law. The course was conducted four t

during 1977, and 97 judge advocates completed it. 

b. The Staff Judge Advocate Oourse.-This course was prese

once during 1977, and 40 judge advocates attended the course. 

c. The lJIilitary Judges' Seminar.-This seminar was conducted 

during 1977, and 24 judge advocates "'ho are serving as military ju

palticipared. 

d. The Reserve and Air National Guarrd Refresher Oourse.-160 

serve and Air National Guard judge advocates graduated from 

course. 

e. The Legal Services AdvancedOourse.-This course was prese

once during 1977, and 40 senior NCO legal technicians attended 

course. Note: The department's enlisted personnel receive their b

legal training at a special legal techniciffn's school at Keesler .A

Miss. Eight courses were held in 1977, and 98 students were gradua

Professional Military Training 

During 1977, five judb>'8 advccat~ attended the Air Command 

Staff College, and three attended the .Air 'Val' College at Max

AFB, Ala. Two officers attended the Armed Forces S~aff College, 

one attended the National 'Var College. 

Short Courses at Civilian Universities 

a. Prosecuting attorney's course at NO1,th1.Qestern University

judge advocates attended this 5-day course in 1977. 

h. Deferuse attorney's course at Northwestern University.-20 ju

advocat~s attended this 5-day course in 1977. 

c. Tl'ia.l advocacy co'urse at Oreighton University.-56 judge ad

cates attended the 5-day course in 1977. 

d. National Oollege of State Trial Judges at the University of 

'vada.-16 judge advocates and 1 senior NCO, the chief court adm

istrator, attended courses at the National College. 
CONTINUING LEGAL EDUCATION SEMINARS USING VIDEOTAP

PRESENTATIONS AS A TEACHING AID 

During 1977, the Judge Advocate General's department develo

several new films and textbooks which were made available to the f

Seminar courses provide a current course of study on subjects of 

cial interest to the department. Most, if not all, Air Force judge ad

cates participated in at least two seminars conducted at Air Fo

bases around the world. Reserve ~\'ir Force judge advocates, and ju

advocates of the Army and Navy have also participated in severa

the seminars. Programs presently in the inventory are as follows

a. The Law of Federal Labor-MalWgement Relations.-A 65-h

course (50 hours of independent reading and 15 seminar hours inc

ing a l%-hour videotape overview of the law of Federallabor-m

agement relations under Executive Order 11491, as amended). ·Wri

materials and an examination accompany the program. 

b. ProfessiolWl Responsibility rrnd the Government Attorney.-A 

hour course (20 hours of independent reading and 8 seminar hou

The videotape presentation includes a 2-hour videotape interview 

Prof. Samuel Dash, Georgetown University Law Center, and C

Judge Albert Flekher, U.S. Court of Military Appeals. Written 

terials and an examination accompany the program. 

c. Trial Techniques.-A 16-hour course (6 hours of independent re

ing and 10 seminar hours, including a 3-hour videotape presentat

by Mr. Robert Begam, president-elect of the Association of Trial L

yers of America, and :Mr. Theodore 1. Koskoff, president, Ros

Pound American Trial Lawyers Foundation). ·Written materials 

an examination a.ccompanying the program. 

d. Supreme Court Trends in Criminal La1o.-A 15-hour course 

hours of independent reading and 5 seminar hours, including a 1-h

videotape presentation by Prof. Abraham Dash, university of Ma

land School of Law). This vide()tape was made in the room that ser

as the Supreme Court chamber, 1810-1860, and which has only 

cently been renovated and opened to the public. 'Vritten materials 

42 
qppy 

paratory reading is required. This course focuses on changes 

Federal tax law resulting from the Tax Heform Act of 1976 a

Tax Reduction and Simplification Act of 1977, with emphasis on 

changes affecting the military taxpayer. 

g. Environmental Lano.-This is a 7-hour course with a 2-hour 

tape and a minimum 20 hours of preparatory reading. This 

highlights the major Federal laws, Executive orders, and agency 

tives bearing on a judge advocate's "environmental law practic

h. OO'L'ernment Oontract Law.-This is a 32-hour course (25 ho

independent reading and 7 seminar hours). The 4-hour videotap

tion of the seminar features Prof. Ralph C. Nash, Jr.; Prof. 

Cibinic, Jr., of the George ·Washington University National Law 

tel'; and Judge Richard C. Solibakke, chairman, Armed Se

Board of Contract Appeals. 

FUNDED LEGAL EDUCATION, EXCESS LEAVE PROGRAMS 

AND LAW STUDENT TRAINING 


In 1976, selected Air Force officers participated in the Funded 

Education Program (FLEP) and the excess leave program, w

completing their la,'v school requirements and being designat

judge advocates. During the summer vacation months, these F

and excess leave program students perform actiye duty in an Air 

legal office as "legal interns". Selected individuals are given the o

tunity to perform their summer training at yarious divisions 

Office of the Judge Adyocate General, Headquarters, USAF. 

A new program which permits the training of Air Force R

graduates (commissioned officers on educational delay to atten

school) was approved in 1976. This program requires 89 days' tra

during a summer vacation at an active duty Air Force base for o

desiring a JAG commission. A test program which trained thre

cers in 1975 and five officers in 1976 proved successful for both th

dents and the base staff judge advocates. Twenty-one officer stu

participated in the 1977 summer program. 
gp

duce slip opinions and in coordinating with 'West Publishing Co. u

der the new printing arrangements. 

FEDERAL LEGAL INFORMATION THROUGH ELECTRONICS (FLlTE) 

The Office of the Judge Advocate General, USAF, continued to o

erate one of the world's largest automated legal research systems a

provide free service to users in the Department of Defense. FLIT

also produced a complete headnote digest and index on microfiche 

volumes 1-51 of the GMR's. This became a major research tool in t

military justice area. 

PERSONNEL 

On 31 December 1976, there were 1,103 judge advocates on duty 

general officers, 81 colonels, 142 lieutenant colonels, 203 majors, a

673 captains). On 31 December 197'7, there were 1,114 judge advoca

on duty (4 general officers, 85 colonels, 136 lieutenant colonels, 2

majors, and 685 captains). 

'VALTER D. REED, 

Major General, USAF, 


The Judge Advocate General, 

United States Air Force. 


44 
TRANSPORTATION (U.S. COAST GUARD) 


October 1, 1976 to September 30, 1977 

The table below shows the number of court-martial records rec

and filed at Coast Guard Headquarters during fiscal year 1977 an

4 preceding years: 

1977 1976A 1976 1975 1974 

General courts-martial ... 5 0 4 4 7 

Special courts-martial. ... 84 25 181 189 192 

Summary courts-martial .. 188 47 221 267 212 

Total ............ 277 72 406 460 411 

GENERAL/SPECIAL COURTS-MARTIAL 

All special courts-martial had lawyers for defense/trial cou

Military judges were assigned in all of the trials. Miltary judge

provided for special courts-martial by use of the two full-time ge

courts-martial judges when available, and by the use of mil

judges assigned to other primary duties. Control of the detail of ju

is centrally exercised, and all requirements have been fined in a ti

fashion. 

In 43 of the special courts-martial, trial was by military judge 

members,5 of which included enlisted members. In the remainin

cases, the defendant elected to be tried by military judge alon

five cases, the sentence included a bad conduct discharge. Four of 

were adjudged by military judge alone, and the remaining one 

adjudged by a court with members. Of the five punitive discha

four have been affirmed by the Court of Military Review, with 

pending decision. 

In fiscal year 1976,72 of 195 convictions did not include confine

as a part of the sentence imposed. Maximum confinement of 6 mo

was imposed at special courts-martial as a punishment only 10 tim

when trial was by judge alone. In fiscal year 1977, while the total 
Violation of order or regulation________________________________________ 3

Larceny/wrongful appropriation______________________________________ 2

Dereliction of duty___________________________________________________ 

Assault _____________________________________________________________ 

~farijuana offenses___________________________________________________ 

Missing ship movemenL______________________________________________ 

Breaking restriction__________________________________________________ 

Offenses against USCG property _______________________________________ 

Communicating a threat______________________________________________ 

Willful disobedience or disrespecL_____________________________________ 

IIouscbreaking/unlawful entry________________________________________ 

Offenses involving controlled drugs___________________________________ 

False claims_________________________________________________________ 

Other offenses________________________________________________________ 2

Total _________________________________________________________ 2

The following is a breakdown of sentences awarded by the militar

judge alone in special courts-martial (39 convictions): 

Bad conduct discharge ........................ . 4 

Forfeiture of pay ............................. . 28 ($16,580 total) 

Hard labor without confinement................ . 10 

Restriction .................................. . 9 

Reduction in rate ............................. . 18 

Confinement at hard labor..................... . 22 

Sentences awarded by court with members (37 convictions) : 

Bad conduct discharge ........................ . 1 


Forfeiture of pay ............................. . 25 ($18,658 total) 


Detention of pay ............................. . I ($200X3 mo. de­


tained for 9 mo.) 

Hard labor without confinement ................ . 7 


Restriction .................................. . 7 


Reduction in rate ............................. . 25 


Confinement at hard labor..................... . 22 


Four of the general courts-martial were with members (no enliste

members). The fifth trial was by military judge alone. Four bad con

duct discharges were awarded, three by members and one by the mil

tary judge. Two have been affirmed by the Court of Military Review

one disapproved by the Court of Military Review and a rehearin

46 
SIGNIFICANT TRENDS 

'Vhile the general trend of courts-martial/nonjudicial punishm

in the Coast Guard has been downward, it is difficult to pinpoin

exact cause. The possibility does exist that two programs in partic

did have a direct impact on these figures: The first, the Command

guidelines on discharge for "marginal performers" significantly 

duced the administrative burden in separating these individuals; 

second, there was an increased use of discharges under honorable 

ditions for those personnel categorized as unsuitable of adaptin

military life. Combining the administrative discharge categorie

marginal performance, unsuitability, misconduct and abuse of dru

alcohol for the years 1975, 1976, and 1977, we find discharges ri

from 623 to 711 to 801 respectively. 

Chief Counsel Action Under Article 69, Uniform Code of Military Ju

In addition to the reviews of courts-martial conducted as a resu

a petition filed by defendants under article 69, Uniform Code of M

tary Justice, the Military Justice Division, USCG Headquarters 

ducts a gratuitous review under article 69 of all courts-martial 

required to be reviewed by the Uniform Code of Military Jus

T\velve article 69 actions were taken as a result of the gratuitous 

yiew, in addition to those reported in part 7 of appendix A, as follo

a. Findings and sentence disappro,ed . . . . . . . . . 

b. Some findings disappro,ed; sentence reassessed. . . . . . . . . 

c. Irregularities in sentencing procedures; sentence reassessed . . . . 

d. 	 Irregularities in post trial re,iew, new review ordered/findings and sen

tence disapproved . . . . . . . . 

e. Illegal confinement; sentence reassessed. . . . . . . . . . . . 

PERSONNEL AND TRAINING 

The Coast Guard has 134 law specialists serving on active d

There are 115 in legal billets, and 19 are serving in general duty bil

The junior officers serving at district· offices act as trial and def

counsels, \vhile the senior officers, some serving as district legal offi

act as military judges. 
eral Counsel of the Department of Transportation, the Chief Judge 

the U.S. Court of Military Appeals, the Chief Counsel of the Coa

Guard, and members of the Chief Counsel's staff. As in the past, info

mation was exchanged on a wide variety of legal problems encounter

by field legal offices. 

NEW PUBLICATIONS 

On 21 June 1977, the "Military Justice Manual" (CG-448) w

promulgated. The primary reason for devloping such a manual was 

incorporate, in one publication, various separately published milita

justice materials. The manual includes a large portion of the "Coa

Guard Supplement to the Manual for Courts-Martial" (GG-241). 

will serve to facilitate, through amendments and additions, expand

guidance to the field to promote uniformity. 

ADDITIONAL MILITARY JUSTICE STATISTICS 

Appendix A contains additional basic military justice statistics f

the reporting period and reflects the increase/decrease of the worklo

in various categories. 

LINDA HELLER KAMl\f, 

General Counsel, 

Department of Tran8portation. 

48 
October 1, 1976 to September 30, 1977 

PART 3 - RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR REVIEW UNDER ARTICLE 66 - GENERAL COURTS-MARTIAL 

FOR REVIEW UNDER ARTICLE 66 - BCD SPECIAL COURTS-MARTIAL 

FOR EXAMINATION UNDER ARTICLE 69 -

PART 4 - WORKLOAD OF THE 

PERCENTAGE OF INCREASE/DECREASE OVER PREVIOUS 

::R-=E.!:P~O~RT.!..!.'IN:::G':.-'=P-=E~R.:.:IOO=_______________-,--___2_8_%__-r"-N.'::"F:•.SEIJ!!<S'!W»

PERCENTAGE OF TOTAL PETITIONS GRANTEO 

PERCENTAGE of INCREASE/DECREASE OVER PREVIOUS 

REPORTING PERIOD 15% K~DECREA

PERCENTAGE 0 F PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMR 10% 

50 
UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 2 

PART 10 - STRENGTH 

31,606 

PUNISHMENT 

U. S. GOVERNMENT PRINTING OFFICE: 1979 0 - 284-323