on 


MILITARY JUSTICE 

INCLUDING SEPARATE REPORTS 


of the 


U.S. COURT OF MILITARY APPEALS 


THE JUDGE ADVOCATES GENERAL 


OF THE U.S. ARMED FORCES, 


AND THE CHIEF COUNSEL 


OF THE U.S. COAST GUARD 


for the Period 


October 1, 1992 to September 30, 1993 


PROPERTY OF U.S. ARNH 

Tt"tE JUDGE ADVOCATE GENERAL~ SCHO

LIBRARY 
COMMITTEES ON ARM

SERVICES 


of the 


U.S. Senate and House of Represent

and to the 


SECRETARY OF DEFENSE, 


SECRETARY OF TRANSPORTATIO

and SECRETARIES OF THE 


ARMY, NAVY, AND AIR FORCE 

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 


For the Period 


October 1, 1992 to September 30, 1993 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE 

NAVY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE 

AIR FORCE 

REPORT OF THE CHIEF COUNSEL OF THE COAST GUARD 
sel of the Coast Guard; the Director, Judge Advocate Di

quarters, United States Marine Corps; F. Lee Bailey, Esq

rence O'Donnell, Esquire, Public Members appointed by 

of Defense, submit their annual report on the operation o

Code ofMilitary Justice pursuant to Article 146, Uniform 

itary Justice, 10 USC § 946. 

On May 14, 1993, the Code Committee met in the Unite

ate Caucus Room, Senate Russell Office Building. This 

open to the public and numerous interested visitors atten

ticipated in the proceedings. The first order of business 

sentation ofthe United States Court ofMilitary Appeals 

lic Service Award to the Honorable Strom Thurmond, U

Senator from South Carolina. Thereafter, ChiefJudge Sulli

the two newly appointed public members ofthe Code Com

Bailey and Terrence O'Donnell. 

Each of the Armed Services committee members then 

the number and status of cases and trends concerning the a

ofmilitary justice within their respective Armed Services. 

reflected that although there was some decrease in the num

martial cases within the past year, there was a definite ri

of complexity of military criminal prosecutions, as ind

increase in court-martial motion practice and the seriou

issues within each of the Armed Services. Subsequently

Purdy, Deputy General Counsel ofthe United States Sen

mission, discussed recent experience in application of th

guidelines within the overall context of the administratio

justice throughout the United States. 

Thereafter, the Chairman of the Joint-Service Comm

tary Justice reported on the current status ofvarious propo

both the Uniform Code ofMilitary Justice and the Manu

Martial. In addition, he reported that the Joint-Service C
Separate reports ofthe United States Court ofMilitary Ap

the individual Armed Services address further items of spe

est to the Committees on Armed Services of the United Stat

and House of Representatives, as well as the Secretaries o

Transportation, Army, Navy, and Air Force. 

EUGENE R. SULLIVAN 

Chief Judge 

WALTER T. COX, III 

Associate Judge 

SUSAN J. CRAWFORD 

Associate Judge 

H.F. "SPARKY" GIERKE 

Associate Judge 

ROBERT E. WISS 

Associate Judge 

Major General MICHAEL J. NARDOTTI, USA 

The Judge Advocate General ofthe Army 

Rear Admiral HAROLD E. GRANT, USN 

The Acting Judge Advocate General ofthe Navy 

Major General NOLAN SKLUTE, USAF 

The Judge Advocate General ofthe Air Force 

2 


Senate and House ofRepresentatives and to the Secretar

Transportation, Army, Navy, and Air Force in accordanc

146, Uniform Code of Military Justice, 10 USC § 946. 

THE BUSINESS OF THE COURT 

The number of cases carried over on the Court's Peti

the end offiscal year 1993 showed a slight increase of27 

ber of cases pending at the end of fiscal year 1992. (See 

Although the number of cases on the Court's Maste

increased during the same period, a significant portion o

was attributable to the fact that 96 trailer cases related 

systemic cases were carried over at the end of fiscal y

Appendix B.) Additionally, the Court experienced a signi

of25% in the number of petitions for grant ofreview filed 

during this reporting period. (See Appendix J.) The numb

ments and final opinions released by the Court remain

stant during this fiscal year, but the number of separate 

tinued to increase over the number ofseparate opinions 

(See Appendices C and D.) This increase in the number of

ions appears to be attributable to the transition ofthe Co

to five judges during fiscal year 1992. 

The average processing time from the date of filing a 

ing the fiscal year to the date of a grant by the Court re

constant as compared with the same processing time peri

vious fiscal year. (See Appendix E.) There was some in

this fiscal year in the average processing time between 

grant and the date of oral argument by comparison with 

od during fiscal year 1992, and the average processing t

argument to final decision also increased slightly during th

the comparative period last year. (See Appendices F and 
, y , § (, 

judges of the United States Court ofAppeals for the Sixth 

al Circuits and a judge ofthe United States District Court 

trict of Columbia to sit in place ofjudges of the United Stat

Military Appeals, who had recused themselves from hearing 

ing various cases during fiscal year 1993. In addition, Senior Ju

son 0. Everett was recalled and participated in the review 

sion of several cases during this same reporting period. 

During fiscal year 1993 the Court admitted 547 attorne

tice before its Bar, bringing the cumulative total of admiss

the Bar of the Court to 29,252. 

PUBLIC AWARENESS PROJECT 

(Project Outreach) 

Consistent with its practice established in 1988, the C

uled several special sessions and heard oral arguments in se

outside its permanent Courthouse in Washington, D.C. Th

known as "Project Outreach," has developed as part of a pu

ness program to demonstrate not only the operation of a Fed

late court but also the effectiveness and quality of the crim

system ofthe Armed Services ofthe United States. The Cour

appellate hearings, without objection ofthe parties, at the Un

Marine Corps Base, Camp Pendleton, California; the United 

chant Marine Academy, Kings Point, New York; the United 

itary Academy, West Point, New York; the United States Air F

emy, Colorado Springs, Colorado; Fort Gordon, Georgia; and 

USS JOHN F. KENNEDY (CV-67) while underway during 

ations. This program has continued to promote an increased pu

ness ofthe fundamental fairness ofthe military justice syst

role ofthe Court in the overall administration ofmilitary justi

out the world. The Court hopes that those who attend thes

6 
SUPREME COURT JUSTICE VISITATION P

On October 27, 1992, Justice Anthony M. Kennedy vis

and on January 21, 1993, Justice Antonin Scalia visited 

both occasions these Associate Justices ofthe Supreme Co

ed States met with the judges and staff of the Court co

ters relating to the judicial administration of the milita

tem under the Uniform Code of Military Justice. The C

the other Article I courts had an opportunity to visit wi

on these occasions. 

THE JUDICIAL CONFERENCE 

On May 13 and 14, 1993 the Court held its annual Ju

ence in the United States Senate Caucus Room, Senate 

Building, Washington, D.C. The Judicial Conference w

credit to meet the continuing legal education requireme

State Bars throughout the United States in order to as

tary and civilian practitioners in maintaining those pro

necessary to practice before trial and appellate courts. 

The speakers for this year's conference included the Hon

C. Bryson, Deputy Solicitor General of the United Stat

able H.F. "Sparky" Gierke and the Honorable Robert E

ate Judges of the United States Court of Military Ap

Jonathan Lurie, Historian to the United States Court ofM

and Professor of History, Rutgers University. 

In addition, the Honorable Walter T. Cox, III, Associa

United States Court of Military Appeals, chaired a sem

fessional Ethics and Responsibility" with panelists V
tary Rules of Evidence Update with panelists Colonel Ma

Squires, Jr., JAGC, United States Army, Chief, Defense Appel

sion, United States Army Legal Services Agency, and Colonel 

G. Hess, United States Marine Corps, Director, Appellate Gov

Division, Navy-Marine Corps Appellate Review Activity. Majo

R. Milhizer, JAGC, United States Army, chaired a seminar o

ing and Proposed Changes to the Manual for Courts-Martial" w

elists Major Ralph H. Kohlmann, United States Marine Cor

tenant Commander Charles J. Bennardini, United States Coa

Captain Walter S. King, United States Air Force; and Lieuten

mander L. Lynn Jowers, JAGC, United States Navy, all of w

members ofthe Working Group of the Joint-Service Committe

itary Justice. 

The conference opened with welcoming remarks by the H

Eugene R. Sullivan, Chief Judge, United States Court of Military 

who also delivered an address on the "State of the Court". D

conference the Robinson 0. Everett Writing Award was pre

Major Holly M. Stone, United States Air Force. 

SIGNIFICANT DECISIONS AFFECTING THE 

ADMINISTRATION OF MILITARY JUSTICE WITHI

ARMED FORCES* 


JURISDICTION OF MILITARY JUDGES 

In United States v. Weiss, 36 MJ 224 (CMA 1992), a case 

the Supreme Court of the United States later granted certio

affirmed the Court's decision in Weiss v. United States, 114 

* This section of the Court's annual report is prepared solely as an info

tool by the staff of the Court. It is included for the convenience of the reade

in easily locating cases of particular interest during the term. The case summ

not of precedential value and should not be cited in briefs filed with the Co

8 
ion again traced the history of courts-martial within the 

and concluded that, while a new office was created whe

Boards of Review were established, the duties of such bo

were germane to the legally trained officers existing pri

ation of the Boards of Review and that, therefore, a se

appointment for appellate military judges serving on the C

itary Review was not necessary. 

In a related case the Court was presented with an issu

the appointment and service of a civilian on a Court ofMi

in United States v. Carpenter, 37 MJ 291(CMA1993). Th

therein that a retired military officer required a separate 

to serve as a civilian appellate judge on the Coast Guard 

itary Review, pursuant to the Appointments Clause of t

stitution, and that the appointment ofthis judge by the G

sel of the Department ofTransportation did not satisfy the 

requirements ofthe Appointments Clause. However, the 

concluded that the judicial acts ofthe civilian appellate j

tion were entitled to de facto validity and that, therefore

of the Court of Military Review was valid, notwithstandi

tive appointment of the civilian judge of the Court of Mi

in this case. 

CHALLENGES 

In United States v. Greene, 36 MJ 274(CMA1993), an iss

which questioned whether a peremptory challenge was pr

ed under the standard ofBatson v. Kentucky, 4 76 U.S. 79 

a trial counsel proffered an explanation for use of a pere

lenge which included both a permissible and impermissibl

Batson. After analyzing numerous cases the Court adopted 

ed analysis approach to the question involving the race 
POST-TRIAL EVIDENCE 

Distinguishing between the scope of appellate review und

66 and a petition for new trial under Article 73 ofthe Unifor

Military Justice, the Court held in United States v. Parker, 3

(CMA 1993), that the Court ofMilitary Review properly reject

davit of an individual who purported to have spoken with the 

sodomy victim approximately eleven months after trial and all

the victim had made statements inconsistent with her earl

testimony at the accused's court-martial. The Court ruled tha

tence of the post-trial affidavit did not establish an error in 

proceedings and rejected the defense claim that the affidavit 

used to order a limited hearing under United States v. DuBay, 1

147, 37 CMR 411 (1967), observing that the limited-hearing pr

never been used to retry the merits of a case, but merely to c

lateral or predicate matters. 

RIGHT TO COUNSEL 

The Court resolved several issues in United States v. Kend

291(CMA1993), which involved allegations that the accused

counsel underArticle 31, Uniform Code of Military Justice, and 

and Sixth Amendments to the United States Constitution w

ed. The facts revealed that the military accused charged wit

a false official statement had earlier made a complaint of p

conduct. The Court held that Article 31 did not apply when 

interviewed concerning her police-misconduct complaint sinc

not a suspect at that time. The Court further held that the Fift

ment was not violated during a post-polygraph examinati

accused because this accused had never indicated a desire to 

the police agents through counsel. In addition, the Court rule

10 
inadmissible his subsequent incriminating statement at hi

martial because such quoted statement was an ambiguo

to counsel which required clarification. As the investigator 

stopped the questioning and obtained a clarification from 

that he did not want a lawyer, and then allowed the accu

break to allow him to consider his situation, the Court affir

itary judge's ruling that such accused did not invoke his r

sel at the interrogation. 

In United States v. Pittman, 36 MJ 404 (CMA 1993), 

raised concerning the admissibility of a statement made b

after he was interviewed by police agents and exercised his 

sel by declining to make a statement and requesting a law

dence reflected that the accused was immediately release

tody of his company commander and his supervisor, Ser

was detailed as his primary escort. Thereafter, this sup

was also a close friend of the accused but did not know 

the accused was suspected of committing-asked the accu

going on or what happened. The Court held that the ensu

nating statement made by the accused to Sergeant Davis 

pressible under Edwards v. Arizona, 451U.S.477 (1981), 

v. Mississippi, 498 U.S. 146 (1990), because conversation 

did not constitute custodial interrogation. Additionally, th

that the supervisor's question and the accused's incrimina

did not violate Article 31(b), UCMJ, because the record s

military judge's finding that the statement in question w

product ofinterrogation nor a request for a statement from 

or suspect within the meaning ofArticle 31(b). 

In United States v. Smith, 36 MJ 455 (CMA 1993), th

that it did not have sufficient facts to resolve an issue conc

ported conflict of interest in trial defense counsel's repre

the accused on the basis that he had previously represen
violated since charges had not yet been preferred against her. 

also rejected an argument that the accused's Fifth Amendm

to counsel had been violated by holding that the accused ha

ed the conversations in question. Finally, the Court rejected 

ment that Article 31(b), UCMJ, precluded the admission of 

ments in question by ruling that the circumstances in this c

not have created a perception by the accused that the inqui

an individual acting in an official capacity or as a law enforce

cial to obtain such statements. 

A statement by a suspect that "I think I want a lawyer" a

questioned by police agents was addressed by the Court in Un

v. McLaren, 38 MJ 112 (CMA 1993). Therein the Court ruled 

a statement required the police agents to either terminate 

view or conduct limited questioning to clarify the accused's 

ifthe statement was deemed to be equivocal. However, the ag

neither ofthese actions but rather, told the accused they could 

him to stay in the interviewing room and that he needed to de

he wanted to do. Because the agents conducted no further qu

and, after a brief pause, the accused answered the question 

been asked before he had mentioned the lawyer, the Court u

military judge's ruling that the accused had voluntarily reini

conversation and had therefore waived his previously invoke

counsel. 

WITNESSES 

The application of Military Rule of Evidence 301(0(2) concer

cise by a witness on cross-examination of the privilege against s

ination was addressed by the Court in United States v. Moo

329(CMA1993), where a defense witness invoked such privil

the Fifth Amendment. Although the defense witness claimed 

12 
erred by rejecting a defense request to immunize a defense 

solely upon the judge's determination that such witness' t

not worthy of belief. The Court rather held that additiona

required to determine whether such immunity would jeop

templated future prosecution of the witness in question 

the testimony, if believed, would not have been ambiguo

have been clearly exculpatory in the accused's case. 

The Court rejected the Government's argument in Un

Armstrong, 36 MJ 311 (CMA 1993), that the pretrial sta

child victim of sexual offenses were admissible against t

this court-martial. The Court noted that such statemen

during an interview with both a psychologist and trial c

former's office and were made by the victim to trial coun

ration for the accused's trial rather than to a doctor for m

ment. Additionally, the Court held that the fact that suc

were repeated some days later to the psychologist alone d

the character of the statements because the child did no

in anticipation of being healed or cured of a disease or m

lem as required by Military Rule of Evidence 803( 4). 

The use of pretrial statements by a trial counsel to qu

ness who subsequently recanted those statements was held 

to be reversible error in United States v. Pollard, 38 MJ 41

After noting that the military judge had earlier ruled th

al statements in question were not admissible as residua

Court held that it was improper for the trial counsel to 

ness and, after having her declared to be a hostile witn

impeach her by repeatedly reading substantial portions 

al statements under the guise ofimpeachment where the 

pose was to place the statements before court members. 
EXPERT TESTIMONY 

The Court resolved an issue in United States v. Houser, 

(CMA 1993), which questioned the admissibility ofexpert testim

rape trauma syndrome. The Court held that the witness i

was properly qualified as an expert under Military Rule o

702 and that such testimony relating to rape trauma synd

be admissible to assist the trier of fact to understand the evi

Court also cited Military Rule of Evidence 703 in ruling that su

testimony may be based on personal knowledge, assumed f

ments supplied by other experts, or even listening to the te

trial, and that there was no requirement that the witness int

victim before testifying as to the symptoms of typical rape 

Noting that certain behavioral patterns, such as a failure t

delay in reporting rape, could be confusing to fact finders, 

concluded that expert testimony relating to rape trauma syn

relevant and that the testimony in question was not substan

weighed by the danger of unfair prejudice, confusion of the 

misleading the members under Military Rule ofEvidence 403. 

noted that the testimony in question was offered in rebutta

behavioral conduct of the victim was raised as an issue, an

expert witness was careful not to confuse or mislead the c

bers and did not violate the prohibition against an expert w

tifying about the credibility of the victim. 

Concerning the availability of a defense expert requested at 

late level, the Court held in United States v. Tharpe, 38 M

1993), that the Court of Military Review properly rejected 

from an appellate defense counsel for such an expert. The 

cerned a claim by the accused on appeal that an expert was 

evaluate the performance of his trial defense counsel and the C

14 
condition. 

Another aspect of intoxication was addressed by the C

ed States v. Morgan, 37 MJ 407(CMA1993), wherein an is

as to whether voluntary intoxication could be used by 

negate the specific intent required to convict such accused 

itated murder. The Court determined that there was no r

rule its long-standing decisions which had consistently 

untary intoxication would not in military law negate 

criminal intent for the commission of unpremeditated m

MULTIPLICITY 

Noting the virtual identity in language ofArticle 79, UC

eral Rule of Criminal Procedure 31(c), the Court in United S

37 MJ 370 (CMA 1993), expressly rejected its earlier an

arate military-law doctrine which defined multiplicious 

in United States v. Baker, 14 MJ 361(CMA1983), and ad

set forth in Schmuck v. United States, 489 U.S. 705 (198

ited the analysis of multiplicity to consideration of the 

ments ofthe involved crimes. Thus, in deciding that the 

in could properly be convicted of both forgery and larce

narrowed the question to one of double jeopardy and held 

intended such accused at a single court-martial to be s

viction of both of these crimes since there was no show

gress had specifically prohibited conviction of both larcen

under Articles 121 and 123, respectively, of the Uniform 

tary Justice. 

PETITION FOR NEW TRIAL 

The Court held in United States v. Williams, 37 MJ 35

that a military judge abused his discretion in denying a d
affidavit signed by two of the three doctors who conducted the m

sanity board in which they specifically criticized the method

conclusions of an earlier pretrial sanity board, the Court conc

it was very probable that the accused suffered from a men

at the time of the alleged offenses and thus lacked menta

bility. The Court also ruled that the appropriate standard fo

ing such question on appeal is whether the appellate court is 

beyond a reasonable doubt that reasonable factfinders wou

reasonable doubt that the accused did not suffer from a sev

disease or defect such as to lack the substantial capacity eithe

ciate the criminality of his conduct or to conform his cond

requirements of the law. 

APPELLATE PROCEDURE 

In United States v. Schoof, 37 MJ 96(CMA1993), the accus

thatArticle 67(a)(2), UCMJ, by which the Judge Advocate Ge

certify a question of law to the Court, was applied in viola

equal protection and due process rights on the basis that 

cation process is normally used only for an appeal by the G

and is not similarly available to the accused. The Court he

accused's separately filed petition for grant review had bee

on an unrelated issue and, since he had not requested that 

be certified on his behalf by the Judge Advocate General, he lac

ing to raise this equal protection and due process issue in 

Addressing an issue which questioned the authorization o

defense counsel to examine an exhibit which was ordered sea

trial judge in the accused's court-martial, the Court held in Un

v. Brano{{, 38 MJ 98 (CMA 1993), that the Court of Milita

had improperly denied the request of appellate defense counse

to the sealed appellate exhibit which was attached to the r

16 
military installation in Korea. Concerning the accused's c

gate inspection process was not authorized by the comm

military installation in question, the Court unanimously h

there had not been a particularized defense objection a

effect, the issue of command authorization had been waiv

itary Rules of Evidence 31l(d)(2) and 103(a)(l). In addit

ty ofthe Court further held that the entry gate was the fun

alent of a border for Fourth Amendment purposes; that t

a written command policy regarding searches conducte

inspection system did not render such searches per se u

that Military Rule of Evidence 314 did not require writt

tion for such gate inspections; and that the discretion acc

guards to stop and search any person attempting to lea

lation with high value items had been considerably rest

commander's oral authorization to conduct such searche

AWARDS AND DECORATIONS 

Noting the traditional importance of awards and deco

integrity of the military sentencing process, the Court h

States v. Demerse, 37 MJ 488 (CMA 1993), that the staf

cate's failure to note the accused's awards and decoratio

of service in Vietnam constituted plain error and required 

to be set aside. Citing United States v. Rowe, 18 USCMA 

54 (1968), the Court reiterated in Demerse "that Vietnam 

to be forgotten." 

TRIAL IN ABSENTIA 

In United States v. Sharp, 38 MJ 33(CMA1993), the Co

its ruling long ago in United States v. Houghtaling, 2 U

CMR 30 (1953), that an accused who absented himself 
the standard of admissibility set forth in United States v. G

MJ 246 (CMA 1987). Observing that the polygraph report d

ferentiate between questions relating to criminal conduct and 

conduct as to the indication of deception, that there was a 

from the normal examination procedures because no post-in

interview with the accused examinee was held in this case

the report contained an error as to the accused's response to 

question, the Court held the reliability of the examination an

to be seriously flawed. 

SPEEDY TRIAL 

In United States v. Kossman, 38 MJ 258(CMA1993), the C

presented with an issue which questioned the continued vali

presumption of a denial of a speedy trial right by an Article 1

violation when an accused is confined for more than 90 day

trial and the defense does not a request a continuance. Noting 

presumption was established by United States v. Burton, 2

112, 44 CMR 166 (1971), and United States v. Driver, 23 US

49 CMR 376 (1974), in a "procedural vacuum," the Court held 

sequent to these decisions, several key changes had been ins

the military justice system, such as the military magistrate 

requirement that an accused be given credit for pretrial con

and the adoption of the speedy trial requirements of RCM 7

ual for Courts-Martial, 1984. Accordingly, the Court overrule

ton-Driver presumption by ruling that it merely aggravated a

complicated subject and adopted a "reasonable diligence" sta

determining whether Article 10, UCMJ, had been violated. 

PRETRIAL CONFINEMENT 

In United States v. Rexroat, 38 MJ 292 (CMA 1993), the C

that the 48-hour limit set forth in County ofRiverside v. Mc

18 
SUSAN J. CRAWFORD 

Associate Judge 

H.F. "SPARKY" GIERKE 

Associate Judge 

ROBERT E. WISS 

Associate Judge 
Miscellaneous Docket ...................................................................___

TOTAL ......................................................................................... 22

CUMULATIVE TERMINATIONS 


Master Docket ... . .. .. . ... . .. ... . .. ... ... . .. .. . . .. .. ... . . . . .. ... ... . . . . .. ... ... . . . .. ... ... . . 4

Petition Docket ............................................................................. 15

Miscellaneous Docket ................................................................... ___

TOTAL ......................................................................................... 20

CUMULATIVE PENDING OCTOBER 1, 1993 


Master Docket ................................................................................ 2

Petition Docket ............................................................................... 3

Miscellaneous Docket ..................................................................... _

TOTAL ........................................................................................... 6

OPINION SUMMARY 

PER MEM/ 

CATEGORY SIGNED CURIAM ORDER T

Master Docket 120 7 354 

Petition Docket 0 0 1,583 

Miscellaneous 


Docket 1 0 33 

TOTAL 121 7 1970 

20 
TOTAL ...................................................... .481 


PENDING (MASTER DOCKET) 


Awaiting briefs ............................................ 61 


Awaiting oral argument .............................. 102 


Awaiting lead case decision 


(trailer cases) ............................................... 84 


Awaiting final action ................................... _1 


TOTAL ....................................................... 248 


FILINGS (PETITION DOCKET) 


Petitions for grant of review filed ............ 1601 


Petitions for new trial filed ....................... 3 


Cross-petitions for grant filed ................... . 4 


Petitions for reconsideration granted ....... 2 


Returned from Court of Military Review.... _Q 


TOTAL ..................................................... 1610 


TERMINATIONS (PETITION DOCKET) 


Petitions for grant dismissed .................... 10 


Petitions for grant denied .......................... 962 


Petitions for grant granted ........................ 580 


Petitions for grant remanded ..................... 15 


Petitions for grant withdrawn ................... 10 


Other ...........................................................-----6 


TOTAL ..................................................... 1583 


PENDING (PETITION DOCKET) 


Awaiting briefs ............................................ 183 


Awaiting Central Legal Staff review ......... 158 


Awaiting final action ...................................--12. 


TOTAL ...................................................... 353 


TOTAL ......... .

Signed ......... 

Per curiam .. 

Mem/order ... 1

TOTAL ........ 1
Q 

TOTAL ......................................................... 34 TOTAL ............ 34 


PENDING (MISCELLANEOUS DOCKET) 

Awaiting briefs ................................................ 2 

Awaiting Writs Counsel review ...................... 0 

Awaiting final action ....... .................... ............. 1 

TOTAL ......... ... ... .. .. .. .. ...... ... .... ... .................... 3 


RECONSIDERATIONS & REHEARINGS 

CATEGORY 

BEGIN 

PENDING FILINGS 

END 

PENDING Granted 

DISPOSITION

Denied 

Master Docket 

Petition Docket 

Misc. Docket 

0 

0 

0 

6 

7 

0 

0 

1 

0 

0 

2 

0 

6 

4 

0 

TOTAL 0 13 2 10 

MOTIONS ACTIVITY 

BEGIN END DISPOSITIONS 

CATEGORY PENDING FILINGS PENDING Granted Denied Other 

All motions 11 1031 8 949 77 9 

22 
Petition Docket Year E

" 702 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 9

I\) 

w 
I\) 

~ 

Master Docket Year En

245 258 -ms:=::l- I I I 

~}t'" 

I 

72 

.,~:! 48 	 

'-'R1" 	 

FY 85 FY 86 FY 87 FY 88 FY 89 FY9

_!/•This figure does not include 16 trailer cases to United States v. Watson, 

68206/MC, and 8 trailer cases to United States v. Weiss, No. 67869/MC. 

_y 	This figure does not indude 87 trailer cases to United States v. Mitchell, 

93-1044/NA, and 9 trailer cases to United States v. Rexroat, No. 93-5007
Oral Arguments Per Yea

FY 85 FY 86 FY 87 FY 88 FY 89 FY 90 

I\) 

<.n 
I\) 

O'J Total Opinions Per Year 

134 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 90 

Cl 	Separate Opinions 

(Concur, Concur In the Result, and Dissent) 
Days from Petition Filin

181 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 90 

N 

"-I 
CX> 

"' 	 Days from Petition Gran

to Oral Arguments 

426 

---+--

131 

~ 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 90 
Days from Oral Argume

to Final Decision 

261 

;'%~: 

185 ----'--

I I ~I 

148 

~ 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 90 

l"V 

<.O 
(..) 

0 Days from Petition Filin

to Final Decision 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 9

Cl 	Petition Docket fIJ Master D

(Denial/Dismissal/Withdrawal) (Granted
Days from Filing to Fina

Decision in All Cases ---------~-.-~-,.-~~-----.~--.--~

108 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 9

(.V 

_. 
w 

I\) 

Total Petitions Filed Pe

---.- 2383---l-

2195 5, -t.,21 so 

FY 85 FY 86 FY 87 FY 88 FY 89 FY 9
Code of Military Justice (UCMJ ). Through its Fiel

Agencies, OTJAG provided judicial and appellate serv

assistance, and professional education to ensure the ord

cient administration of military justice. 

MILITARY JUSTICE STATISTICS 


AND U.S. ARMY JUDICIAL ACTIVITIE

Average Army strength declined from 659,204 in FY 9

in FY 93. As Army strength declined 12 percent in FY 93

of nonjudicial punishments declined almost proportiona

However, trials by court-martial dropped 33 percent, cont

eral-year decline in the rates of trial per 1,000 soldiers. S

special courts-martial declined an aggregate of 43 perc

court-martial trials declined 21.5 percent. 

Downsizing and the reduction in military justice ca

accompanied by personnel reductions in the U.S. Army T

Service, the U.S. Army Trial Judiciary, the Defens

Division, and the Government Appellate Division. The 

Court of Military Review (ACMR) was reduced from fo

three, with three judges each. 

The Clerk of Court received 20 percent fewer record

review by the ACMR, although the number of cases receiv

ination pursuant to Article 69(a) declined only 3 percen

cases in the pipeline, cases briefed to ACMR did not dec

cantly in FY 93. 

ACMR heard more oral arguments and published a 

centage of its decisions than in any recent year, withou

increasing its decision time. 
(pp) 

U.S. ARMY LEGAL SERVICES AGENCY 

The U.S. Army Legal Services Agency, a field operating 

OT JAG, includes the following organizations involved in the 

tration of military justice: the U.S. Army Judiciary, the Go

Appellate Division, the Defense Appellate Division, the Tria

Service, and the Trial Counsel Assistance Program. 

U.S. ARMY JUDICIARY 

The U.S. Army Judiciary consists ofACMR, the Clerk of C

Examination and New Trials Division, and the Trial Judicia

U.S. ARMY TRIAL DEFENSE SERVICE 

During FY 93, The United States Army Trial Defens

(USATDS) continued to provide professional defense servic

diers throughout the Army. USATDS counsel represent

clients at proceedings conducted under Article 32, UCMJ; 9

at general courts-martial; 412 clients at special courts-ma

783 soldiers at administrative boards. USATDS counse

36,273 clients regarding nonjudicial punishment, and 20,3

regarding a variety of adverse administrative actions. 

USATDS supported the Multi-National Force in the S

troops in Southwest Asia, Macedonia, and Somalia. While a

a drawdown of TDS counsel, USATDS continued to man 

offices world-wide. At specified locations, USATDS maintai

service agreements to provide mutual support along with ju

cates of other services. 

34 
court-martial. TCAP also provided instruction for trial co

ing the U.S. Army Europe (USAREUR) Criminal Law 

the Criminal Law New Developments Course and C

Advocacy Courses at The Judge Advocate General's 

Army. 

SIGNIFICANT MILITARY JUSTICE ACTI

Criminal Law Division, OTJAG, advised The Jud

General (TJAG) on military justice policy, legislation, 

related criminal law actions. Specific responsibilities i

mulgating military justice regulations and reviewing 

tions for legal sufficiency; military corrections; the Arm

ing program; federal felony and magistrate court prose

opinions for the Army Staff; statistical analysis and ev

Congressional inquiries. 

During FY 93, the Criminal Law Division responded 

House inquiries; 92 Congressional inquiries; 11 requ

opinions from the Army Board for Correction of Military 

letters written to the Secretary of Defense, Secretary 

Chief of Staff of the Army, and The Judge Advocate Ge

miscellaneous inquiries. The office also processed three c

tions under Article 74, UCMJ, 16 officer dismissal cases 

of the Army approval, and 22 Freedom of Information A

requests. 

During FY 93, the Criminal Law Division participa

and State Department counsel in drafting procedural an

rules for the United Nations' International Tribunal on 

former Yugoslavia; represented TJAG on a DoD/DOJ tas

ing the Federal Crime Victim and Witness Assistance P
ments to the UCMJ and MCM, while serving as a forum for 

ing military justice information. 

During FY 93, the JSC completed its ninth annual revi

MCM. This review was submitted for public comment. Th

will be evaluated by the DoD General Counsel and sub

Change 8 to the MCM, 1984. At the close of FY 93, Change 6 

annual review) was in the Office of Executive Counsel, OM

ing signature by the President following delays and revision

tated by the change of administrations in January 1993. 

(the 1991 and 1992 annual reviews) was completed and re

transmittal once Change 6 is signed. Reprinting of the MCM 

in abeyance pending Presidential action on Change 6. T

serves as the executive agent ofthe JSC for printing the MC

tracking the progress of MCM changes and other legislati

tives of the JSC. 

Several MCM amendments were approved by the JSC 

warded for adoption. These provided that: the sentencing 

upon rehearing or new trial, may adjudge any lawful sent

convening authority action is limited to the sentence 

approved; members may not reconsider any finding anno

open court; confinement on bread and water or on diminishe

is no longer an authorized court-martial punishment; the 

inform the convening authority of a recommendation for 

made by the sentencing authority; court-martial sentences 

consecutively with sentences adjudged by civilian or foreign 

tions; and that the convening authority may correct minor 

actions detected before records are forwarded for appellate r

Additional amendments will: establish criteria for determ

appropriateness of fines and provide a fine enforcement 

clarify standards for review of search authorizations based 

36 
ofthe Army, through the International and Operational L

OTJAG, maintains information concerning the exercis

criminal jurisdiction over U.S. personnel. 

From December 1, 1991 to November 30, 1992, foreig

charged United States citizens with 10,766 offenses subj

ry or exclusive jurisdiction offoreign tribunals. Ofthese, 

es involved military personnel. Foreign authorities releas

828 exclusive jurisdiction cases to U.S. military authorit

sition. The remaining 7,783 foreign jurisdiction cases wer

rent jurisdiction offenses. Because they involved violat

U.S. military law and foreign laws, the foreign countries 

ty to assert primary jurisdiction. However, U.S. militar

were able to obtain waivers of foreign jurisdiction in 7

incidents. Overall, waivers were obtained in 91.7 percen

or concurrent foreign jurisdiction cases. · 

Foreign authorities reserved jurisdiction over 1,0

allegedly committed by military personnel. Of these, 789 

or other minor offenses. 

A total of 2,155 civilian employees and dependents w

with offenses subject to foreign jurisdiction. As civilians 

ject to trial by courts-martial in peacetime, the U.S. has 

jurisdiction over these offenses. Nonetheless, foreign 

released 807 of these offenses, or 37.4 percent of the total

itary authorities for administrative or other disposition. 

Foreign authorities tried a total of 1, 815 cases; 15 trial

cent, resulted in acquittals, and 1,656, or 91.2 percent, res

tences to fines or reprimands. The remainder included 

sentences to confinement and 115 suspended sentence

ment. 
dar year basis. During the past year, professional conduct 

initiated into alleged violations of the Army Rules decreas

percent compared to the average for the previous five yea

than two-thirds of the inquiries resulted in findings of no 

and two-thirds of the remainder were determined to be mino

cal violations. Half of all inquiries concerned the conduct o

defense counsel. 

LITIGATION 

Civil litigation against the Department ofthe Army and it

ees continued to increase during FY 93. Suits requiring th

courts to interpret the UCMJ, and the validity of actions ta

suant to it, constitute a small but significant portion of the l

A majority of these cases seek collateral review of court-ma

ceedings. Most remaining cases present challenges to the gen

ditions of confinement, specific actions taken by confineme

personnel, or parole and clemency proceedings. 

EDUCATION AND TRAINING 

During FY 93, The Judge Advocate General's School, U

(TJAGSA), located in Charlottesville, Virginia, provided leg

tion to lawyers, commanders, and other officers, enlisted p

and civilians of the military services and other federal agenc

A total of 3,648 students attended forty-five resident c

TJAGSA. Students included 1,461 Active Army, 468 U

Reserve, 189 Army National Guard, and 302 Army civilians

dents came from other segments of the DoD: 433 Air F

Marine, 252 Navy, and 160 DoD civilians. Also attending cla

38 
received TJAGSA's LL.M. in Military Law. In additio

judge advocates, the class consisted of 10 Marine, 5 Nav

2 Army National Guard, and 3 international military 

42d Graduate Class, which began on August 2, 1993

active Army, 10 Marine, 5 Navy, 5 Air Force, 1 Army R

international military students. 

Three Basic Course classes, the 129th, 130th, and 13

a total of 170 students: 161 Active Army, 1 US Army Re

National Guard, and 3 International Military students

A Methods of Instruction Course was offered duri

week ofJuly 1993. The School's 25 new staff and facult

three-day course. 

During FY 93, TJAGSA continued to provide senio

legal orientations prior to their assumption of comma

officers attended General Officer Legal Orientation Co

battalion and brigade command designees attended 6 

Legal Orientation Courses. A special version of the G

Legal Orientation was presented to 8 congressional s

TJAGSA also provided instructional materials for the 

courses attended, at Fort Leavenworth, Kansas, by all 

brigade command designees. 

The Criminal Law Division presented five resident co

education (CLE) courses during FY 93. The Criminal T

Course was presented twice, in November and F

Procurement Fraud Course in November, the Military J

in May-June, and the Criminal Law New Developme

August. Additionally, the Division conducted an on-sit

CLE program for judge advocates assigned to USARE

1992. The Criminal Law Division also provided CLE ins

judge advocates at eleven on-site training locations. 
deployments. The Division sent two instructors to Germany t

the USAREUR Operational Law Course and one instruct

USAREUR Operational Law Conference. 

Additional instruction was provided by the International 

ulty throughout the year to Army Reserve and National Gu

neys at eight on-site training locations throughout the natio

All instruction provided by the International Law Divi

ported the goal of ensuring that military lawyers are know

in all aspects of OPLAW, a body of law which includes the la

and ensuring that they are able to participate effectively as 

of the commander's operations team. Lessons learned from O

Just Cause in Panama, Operation Urgent Fury in 

Operations Desert Shield and Desert Storm, and from train

cises in Latin America, Europe, and the Middle East have be

porated into CLE instruction. Instruction was also provid

Army War College, TRADOC, and the Naval War College. 

The International Law Division also helped design a prog

used in training the Peruvian Military on the law appl

wartime and on the general international law of human rig

program will serve as a model for similar programs for ot

tries. In FY 93 Peru, with the assistance of TJAGSA, will b

important training. 

Established by the Secretary of the Army in 1988, The C

Law and Military Operations (CLAMO) is administered 

International Law Division and conducts symposia, publishe

and provides resource material on operational law. Sympo

been held recently on the Gulf War, the disaster relief eff

Hurricanes Andrew and Iniki, and the Somalia relief effort

tion, CLAMO hosted the 10th Joint Chiefs of Staff 

Operations and Law Symposium. Sponsored by the Chairm

40 
administrative support for both courses. Also during FY 9

Advocate Guard and Reserve Affairs Division hoste

National Guard State Area Command (STARC) W

TJAGSA. This workshop was attended by judge advoc

STARC headquarters. 

The Judge Advocate General's Reserve Component C

Program was hosted at TJAGSA in April 1993 by the Ju

Guard and Reserve Affairs Department. This unique p

again brought together senior RC and Active JAs to discu

legal and military issues facing the Total Army. 

On December 1, 1992, Dean Nancy L. Schultz, Assist

Director of Legal Writing, George Washington Univer

Law Center, presented the Twenty-first Colonel Edwa

Lecture in Legal Education. 

On March 25, 1993, the Twenty-Second Kenneth J. Ho

in Criminal Law was presented by Professor Roger C. Pa

of Law, University of Minnesota Law School. Professor P

was entitled, "Evidence of Uncharged Misconduct in Se

Cases." 

The School continues to edit and publish articles relat

law and legal practice in the Military Law Review an

Lawyer. The Military Law Review, the quarterly leg

TJAGSA, concentrates on scholarly articles that cont

development ofthe body ofmilitary law. In 1993, it publis

materials of over thirty authors, including judge advoc

practitioners, foreign attorneys, law school professors, 

dents. The Military Law Review publishes over 1,000 pa

script annually, with a distribution of over 30,000 copie

Lawyer is a monthly periodical that could best be charact

bar journal of the Army JAG Corps. It principally publ
188 lieutenant colonels, 331 majors, 957 captains, and 42 f

tenants. Sixty-one warrant officers, 299 civilian attorneys, a

enlisted soldiers supported legal operations worldwide. 

To ensure selection of the best qualified candidates for ini

mission, career status, and service schools, TJAG convened 

boards several times during the year. Newly accessed offic

commissioned as first lieutenants. In December 1992, a 

board recommended that TJAG select nine active duty comm

officers to begin law school under the Funded Legal E

Program. 

Two hundred and forty-three Judge Advocate officers comp

following service schools: 

U.S. Army War College .....................................................................................

National War College ........................................................................................

Industrial College of the Armed Forces ...........................................................

Department ofJustice Fellowship ....................................................................

U.S. Army Command and General Staff College ............................................

The Judge Advocate Officer Graduate Course ................................................

The Judge Advocate Officer Basic Course .......................................................

During FY 93, four officers completed fully funded study f

degrees in specialized fields of law. 

As a separate competitive category under the DoD 

Personnel Management Act, officers of the Corps compet

themselves for promotion. During FY 93, the Secretary of t

convened four selection boards to recommend Judge Advocat

for promotion to higher grades. 

Michael J. Nardotti, Jr. 

Major General, USA 

The Judge Advocate General 

42 
FOR EXAMINATION UNDER ARTICLE 159 ·GENERAL COURTS-MARTIAL 12 

PART4-WORKLOADOFTHE U.S. ARMY COURTOFMILITARYREVIE

TOTAL ON HANO SEC INNING OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COUFITS·MARTIAL 

REFERRED FOR REVIEW 

GENERAL COURTS·MARTIAL 

BCD SPECIAL COUF\TS·MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS·MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS·MAFl:TIAL 

BCD SPECIAL COURTS-MARTIAL 

AATE OF INCREASE (+)/DECREASE C-) OVER NUMBER OF CASES 


REVIEWED CURING LAST REPORTING PERICO -9.5% 


PART 5-APPELLATE COUNSEL REQUESTS BEFORE U.S. ARMY COU

REVIEW 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO VSCMA 

PERCENTAGE OF INCREASE (+)/DECREASE(-} OVER PREVIOUS REPORTING PERICO 

PERCENTAGE OF TOTAL PETITIONS GRANTED r Tl 

PERCENTAGE OF INCREASE (+)/DECREASE(-) OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

flATE OF INCREASE (+)/DECREASE(-) OVER THE NUMBER OF CASES REVIEWED DURING 

LAST REPORTING PERIOD 

/'ACE I OF 2 
PART10-STRENGTH 

..VE RAGE ACTIVE OUTY STRENGTH 586, 149 (K) 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBEFI OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 

RATE PEA 1,000 

RATE OF INCREASE {+)/DECREASE(-) OVEA PFi.EVIOUS PERIOD 

44,207 

75.4 

+.2/1000 [M) 

PAGE20F2 

EXPUINA'roRY NaI'ES 

[AJ 

[BJ 

[CJ 

ln;;lu:ies only original trials; oot reheari.rgs, new trials, oth

In;;lu:ies all cases terminated for any reason withcut CXlllVictio

Cases convened by GCM oonvenirq authority in whim Arrrry SPQI'. sp

errpa.iered to inpcse a BCD. 

[DJ Based on recx>rds of trial received during report period (PAR!' 

tried (PAR!' 1). In addition to ODs, 25 dismissals of officers were 

[EJ Does oot incll.Xie cases in whim ai:pellate review was waived (1 

in FY 93). 

[FJ ln;;lu:ies only cases briefed am at issue before the Ccmt. At 

additiooal cases were awaiting the filing of briefs. 

[GJ Cases pen:ling before USArnR, whim inclW.e govenurent aweals a

for'extraord.inary relief, are oot routinely acooonted for by type o

martial. 

[HJ ln;;lu:ies 10 cases with:irawn fran awellate review before decis

(I) Represents total ai:pellants represented by coonsel. Of that nu

represented by civilian coonsel in addition to, or in lieu of, assig

coonsel. 

[JJ Based on petitions acted upon, oot those filed, during the rep

[KJ Average of ncnthly stren;Jths shCM1 in report DCSPER-46. 

[LJ ln;;lu:ies 220 cases presenting issue as to constitutionality of 

designating military trial am awellate jlXiges. 

[MJ Olarge in rate per l,ooo is based on corrected rate (75.2) for 

stren:Jth 665,800). 

44 
pq

Military Justice, the Acting Judge Advocate General mad

oflegal offices in supervision of the administration of mil

ARTICLE 69(a), UCMJ, EXAMINATION

Eighty-four general court-martial records of trial, no

eligible for automatic review by the Navy-Marine Co

Military Review, were forwarded for examination in the 

Judge Advocate General in fiscal year 1993. Five cases 

rective action by the Judge Advocate General. Eight cases 

review. 

ARTICLE 69(b), UCMJ, APPLICATION

In fiscal year 1993, 34 applications under Article 69

Code of Military Justice, were received for review. Of the

cations were denied on the merits, while relief was gran

or in part in 6 cases. Seven cases are pending review. 

ARTICLE 73, UCMJ, PETITIONS 

In fiscal year 1993, two petitions for new trial were re

Office of the Judge Advocate General, and both are pend

APPELLATE GOVERNMENT DIVISION 

Appellate Representation. The 10 Navy and 5 Marine 

cates assigned to the Appellate Government Division fi

2435 pleadings last year; 2007 with the Navy-Marine Co

Military Review and 428 with the U.S. Court of Milit

These numbers exclude cases which were submitted t

without specific assignments of error, but represent 
publication of Electronic ViewPoint, and a computer bulleti

Through these proactive and effective methods, there has bee

increase in assistance calls over last year. 

Presentations. Government counsel also participated in t

Judicial Conference of the United States Court of Military Ap

Washington, D.C., and made presentations at the Army 

Advocate General's School's Graduate Course and the Arm

Reserve Conference in Minneapolis, Minnesota. 

Reserves. The Appellate Government Division continued to 

training and support to 12 Navy Reservists and 3 Marin

Reservists assigned to the Division. The Reservists assigned 

substantial contribution to the successful completion of the D

mission including the preparation ofthe Government's appell

in a very sensitive and high-visibility Government appeal. 

APPELLATE DEFENSE DIVISION 

Appellate Defense Practices. A total of 2451 cases were r

during fiscal year 1993 by the 20 judge advocates, Navy and 

and their reserve counterparts assigned to the Appellate 

Division as appellate advocates. Of that number, 597 we

briefed to the Navy-Marine Corps Court of Military Review a

were summarily assigned. Five hundred and two cases we

tioned to the U.S. Court ofMilitaryAppeals (CMA). While the 

of cases forwarded to Appellate Defense continued to decreas

ly from previous years, the cases received continued to 

increasingly complex common law offenses and more soph

issues. In addition, the division submitted 10 writs of certio

one amicus brief to the U.S. Supreme Court. The Suprem

granted certiorari in two cases during the year. They were 

46 
provides centralized training, equipping, and use of rese

advocates shoulder to shoulder with their active count

Division. The reserves reviewed approximately 25% of 

cases, identified issues, and submitted pleadings and b

issues. The Division continued to use reservists to not on

brief cases, but to actually argue those cases before NM

NAVY-MARINE CORPS TRIAL JUDICIA

The Navy-Marine Corps Trial Judiciary (NMCTJ) p

tary judges for 734 general courts-martial and 3051 s

martial during fiscal year 1993. These numbers represe

of 156 general courts-martial (-17.5%) and a decrease 

courts-martial (-20.7%) from fiscal year 1992. The num

duty military judges declined from 42 to 39 by 30 Sep

while the number of in-court hours in fiscal year 1992 

decrease of 14.4% from 1992. Total travel time was 4,

1290 cases. Cases were tried worldwide, including su

Somalia, Guantanamo, Bahrain, Panama, and Iceland, 

sea. The NMCTJ is composed of 14 circuits with a tota

offices. 

Military judges received continuing legal education at 

West Coast NMCTJ Military Judges' Meetings, the 

Meetings, the Air Force-sponsored Interservice Mil

Seminar, the National Judicial College, the American 

Judicial Education, and the Military Judges a

Developments in Criminal Law courses at the Army 

Military judges served as lecturers or seminar le

Navy/Marine Corps Senior Officer Short Courses in M

offered by the Naval Justice School at 21 locations worl

as for various in-service courses. 
relieved Colonel Michael C. Wholley, USMC, as Chief Judg

Navy Marine Corps Trial Judiciary. Captain Grant became 

enth Chief Judge to serve in this office. Colonel Wholley was 

ed to Brigadier General and now serves as StaffJudge Advoca

Commandant of the Marine Corps. 

NAVAL LEGAL SERVICE COMMAND 

Naval Legal Service Command (NAVLEGSVCCOM) pr

wide range of legal services to afloat and ashore command

duty naval personnel, dependents, and retirees from 44 offic

wide. Specific functions include the provision of counsel fo

martial and administrative boards, counsel to commands, cla

cessing and adjudication, counsel at physical evaluation boa

legal assistance. In addition, the command also includes th

Justice School at Newport, Rhode Island, charged with trai

service judge advocates, and paralegals/court reporters for 

vices, as well as foreign military and civilian defense p

through the Expanded International Military Education and 

Program. 

In fiscal year 1993, NAVLEGSVCCOM completed the first 

three year reorganization plan. When completed, NAVLEGS

will consist of 12 naval legal service offices (down from 20 at th

ning of fiscal year 1993) and 28 detachments and branch o

the end of the fiscal year, NAVLEGSVCCOM stood at 16 na

service offices and 28 detachments and branch offices. NAVL

COM is commanded by the Deputy Judge Advocate Gener

Navy and includes 323 officers, 190 enlisted and 176 civilian 

nel. The command constitutes about 40% of the Navy's to

advocate strength. 

48 
Phase I of this program, delivery of a personal comp

member of the command, was completed in fiscal year 1

site preparation ofLocal Area Network (LAN) cable plan

was completed at 30 NAVLEGSVCCOM activities in fisc

these activities are now operational in LAN and Wide A

(WAN) environments (each person assigned to each site 

nicate from their work station directly to the work sta

other person at each ofthe 30 COMNAVLEGSVCCOM s

the Office of the Judge Advocate General, Navy-M

Appellate Review Activity, and Navy-Marine Corps Cou

Review. The remaining 14 NAVLEGSVCCOM activities 

to be fully operational by the end of fiscal year 1994, c

NAVLAWSS project. 

Finally, NAVLEGSVCCOM continues to explore way

personnel more productive through the use of innovat

technology. Seven new electronic infobases were distr

field in fiscal year 1993: Office of Government Ethics - 

Conduct Manual; Naval Operations Law Manual (NWP-

Naval Personnel Manual; Naval Justice School Civi

Guide; Naval Justice School Criminal Law Study G

Justice School Procedures Study Guide; and Naval J

Evidence Study Guide. When loaded on a notebook comp

five earlier products, these infobases furnish the sea 

advocate a compact and thorough research library, all

her to practice effectively in even the most remo

Additional manuals are being considered for conversio

formats, as well as the use ofCD.ROM technology to inc

the amount of resource material which can be delivere

the judge advocate's desktop, wherever that may be. 
y pg g

fiscal year the Joint Chiefs of Staff directed a thorough revi

feasibility and cost effectiveness of consolidating/collocating 

service JAG/Legal training. They tasked the Interservice 

Review Organization (ITRO) with conducting this review. F

ITRO's direction, the JAG schools have thoroughly reviewed 

cer and enlisted legal training programs and have found litt

duplication. This result was not surprising- the JAG School

had a standing committee in place to conduct similar review

established an Interservice Legal Education Review C

(ISLERC) in 1977. This committee, which has the command

JAG Schools as its members, meets annually to review curr

training programs, thereby avoiding unnecessary duplica

maximizing information sharing. The ITRO process is still 

and more briefings are expected in the near future. 

New Developments: During fiscal year 1993, NJS boug

courses on line: (1) Naval Legal Service Office (NLSO) Man

Course; and (2) mid-career Legalman course. The NLSO man

course was designed to prepare prospective and recently 

NLSO Commanding Officers and Executive Officers for 

NLSOs. This course emphasizes leadership and manageme

fitness report and evaluation writing, the budget process, 

dling civilian personnel matters. Twenty students atten

extremely successful first-time offering. The Mid-Career L

course was taught twice, once at NJS and once at our Det

Designed to prepare mid-career E-5s and E-6s for advan

duties at Naval Legal Service Offices and Staff Judge A

offices, this course included substantive legal lectures, sm

seminars, practical exercises and hands-on computer traini

students benefited from this training. 

An update of school courses follows: 

50 
pgp 

Navy and 4 Marine Corps judge advocates attended this 

Senior Legalman Course. The annual course focuses 

and other management skills required of senior enlis

supervisors. Twenty senior enlisted personnel (22 Navy 

attended this course in fiscal year 1993. 

Basic Lawyer Course. Offered 4 times during fisc

course trains newly-accessioned judge advocates to perf

Navy, Marine Corps and Coast Guard judge advocates

basic training in military justice, legal assistance, 

administrative and civil law. The Naval Justice School h

a practice-referenced curricula for this course. We provi

of lecture, and over 120 hours of practical exercises/sma

inars designed to enhance advocacy skills, including 4 m

lutions and 1 mock administrative discharge board. Dur

year, we trained 96 Navy, 71 Marine and 13 Coast Guar

Legal Officer Course. The Naval Justice School train

junior officers and senior independent duty paralegals to 

duties with ships, aircraft squadrons, small stations, or o

units with no judge advocates/law specialists. We provide

classroom instruction and 41 hours of practical exe

Attendees at NJS this fiscal year included 194 Navy offi

enlisted, 15 Marine Corps officers, and 1 Coast G

Additionally, we trained 209 Navy officers, 36 Marine C

and 1 civilian at our San Diego Detachment. 

Expanded International Military Education and T

Naval Justice School has had the lead in developing and 

highly publicized, highly visible international train

worldwide to foreign military and civilian defense pe

three-phase program tailors the instruction in (among 

human rights, civilian control of the military in a democ
yy

Hueneme on West Coast, these courses trained over 200 st

advanced and basic environmental law. 

Military Law Update Workshops. These workshops are 

two-day courses taught by the school to inactive-duty 

throughout the country to complement drill weekends and 

reserve annual training requirements. Topics include recen

ments in military justice, administrative law, and internatio

ational law. In 1992, Naval Justice School taught these c

New Orleans, Louisiana; Virginia Beach, Virginia; and S

California, to approximately 650 Navy and Marine Corps re

Senior Officer Course. This one-week course, sponsored by 

of Naval Operations, prepares commanding officers, execu

cers, and officers-in-charge to handle their command legal 

bilities. Two sessions were held at the Naval Justice Scho

offerings were held at the following world-wide locations: Jac

and Pensacola, Florida; Charleston (twice) and Parris Islan

Carolina; Norfolk (twice), Oceana and Quantico (twice), 

Groton (twice), Connecticut; Camp Lejeune, North Caro

Diego (twice), San Francisco, and Camp Pendleton, C

Bangor, Washington; Great Lakes, Illinois; Washington, D

Spain; Pearl Harbor, Hawaii; Guam; Okinawa and Yokosuk

The 1,266 students attending these classes included: 

USN: ...................................................................................................................

USMC: ....................................................................... ........................................

USCG: .................................................................................................................

USA: ....................................................................................................................

USAF: .................................................................................................................

CN: .....................................................................................................................

52 
dents took this course. 

Legal Clerk Course. This two-week course was taught 

times at our San Diego Detachment. It trains non-lega

dents to perform basic legal support duties, particul

small ships, with aircraft squadrons, and at small isolat

In fiscal year 1993, 289 sailors, 3 Marines, and 2 civi

course in Newport and at our San Diego Detachment. 

Reserve Courses. NJS teaches 2 resident courses for R

officers and a 3-phase conversion legalman course. The R

es are designed to prepare inactive-duty reserves of t

Marine Corps to perform the duties of their active duty 

During fiscal year 1993, 106 reserve students complete

courses held at NJS. 

Specialized Briefings and Presentations. In addition 

courses listed above, NJS continued its extensive sup

Education and Training Center Schools (Naval War Co

Warfare Officers School, Naval Chaplains Sch

Indoctrination School, Officer Candidate School, an

Enlisted Academy), giving expert instruction on court-

dures, search and seizure, 5th Amendment issues, law 

flict, law of the sea, rules of engagement, sexual haras

nization, standards of conduct, and other timely lega

extension program trained over 3,500 service members. 

MARINE CORPS ACTIVITIES 

During fiscal year 1993, three Marine Corps judge ad

uated from top level schools. There are currently two ju

studying at the Naval War College, one studying Jap

Navy Post Graduate School, Monterey, one judge ad
jgy g 

Degree Completion program (ADP), at George Washington U

and University of Washington. 

Headquarters, U.S. Marine Corps, funded one hundred 

judge advocates for continuing legal education (CLE) at the 

schools: TJAGSA; Naval Justice School, Newport, Rhode Is

Air University, Maxwell Air Force, Alabama. Areas of train

federal litigation, law of war, trial advocacy, procurement and 

law, federal labor law, criminal law and evidence, and legal a

During fiscal year 1993, eighty-five Marine Corps Rese

advocates were staffed in individual mobilization augmente

ment billets Marine Corps wide. 

In conjunction with the Reserve augmentation unit, t

Defense Counsel of the Marine Corps organized and support

al three and four day intensive courses in trial advocacy at 

the east and west coasts in Hawaii, and Okinawa. Continui

are underway to provide more professional legal education 

cooperation between the reserve establishment and the Nav

School, bringing the training to the judge advocates in the f

Harold E. Grant 

Rear Admiral, USN 

The Acting Judge Advocate General ofthe Navy 

54 
FOR EXAMINATION UNDER AFtT!CLE 69 ·GENERAL COURTS-MAATIAL 84 

PART 4 ·WORKLOAD OF THE NAVY-MARINE COURT OF MILITARY REVIE

TOTAL ON HANO BEGINNING OF l'ERIOO 2079 :.::;.:

GENERAL COUATS·MAATIAL ~q7 :·:· ·..·.·. ::::: 

BCD SPECIAL COUATS·MAATIAL 1848 "'·'"""' """""' .,.,.. ....... :::;:

AATE OF INCREASE (+I/DECREASE 1-) OVEFI NUMBER OF CASES 

PtEVIEWED DURING LAST REl"OATING PEAIOO 

PART 5. APPELLATE COUNSEL REQUESTS BEFORE llAVY-MARINE COURT 

REVIEW CORPS 

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

PEACENTAGE OF COMA REVIEWED CASES FOAWAAOEO TO USCMA 

PERCENTAGE OF INCREASE (+)/DECREASE(-) OVER l"AEVIOUS REPORTING PERIOD 

l"EACENTAGE OF TOTAL PETITIONS GRANTED 

l'EACENTAGE OF INCREASE (•)/DECREASE(-> OVE" l'AEVIOUS RE~RTING PERIOD 

PERCENTAGE OF 'ETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA • 

RATE OF INCREASE (+)/DECREASE (-, OVEA THE NUMBEA OF CA.VS "EVIEWEO DUfUNG 

LAST REPORTING PERIOD 

PA.GEIOF2 
PART 10- STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 720, 700 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 

RATE PER 1,000 

fllATE OF INCREASE (+)!DECREASE(-) OVER PREVIOUS PERIOD 

PAGE 20F 2 

56 
of Military Justice (UCMJ), The Judge Advocate Genera

Judge Advocate General made official staff inspections 

offices in the United States and overseas. They also atten

ticipated in various bar association meetings and add

civil, professional, and military organizations. 

THE AIR FORCE COURT OF MILITARY R

During fiscal year 1993, the Air Force Court of Mi

experienced a drop in the number of cases referred for r

increase in the number and timeliness of cases reviewe

with the recent trends, the Court continues to see a ris

plexity of cases being reviewed, as well as an increase i

length of the records of trial. 

The Court expanded its work space and separated th

tive staff from the judges' work areas to promote enhanc

Each judge was allotted additional working space, and a 

ation room was constructed to facilitate private discus

members. The addition of a third full-time law clerk me

of the three primary working panels will have an assign

Court is making every effort to reduce its current work

time it takes to complete the appellate process for Air Fo

Court expects significant progress toward this goal in th

cal year. 

MILITARY JUSTICE STATISTICS AND U

JUDICIARY ACTIVITIES 


The Judiciary Directorate of the Air Force Legal Ser

has the overall responsibility for supervising the adm

military justice throughout the United States Air Forc

judicial proceedings to the appellate review of co
c. The Directorate provided representatives to all interser

ities involving military justice and support for the Code Co

d. The information programs office continues the devel

the Automated Military Justice Analysis and Manageme

(AMJAMS) II. Completion of an interim version to undergo 

ing is expected in August 1994. Development of the final 

AMJAMS II continues. 

LEGAL INFORMATION SERVICES 

During FY 93, the Legal Information Services Director

ferred all operations from Lowry AFB, Colorado to Max

Alabama. 

Some 1,000 new personal computers and 166 laser prin

purchased for legal offices throughout the Air Force. Seven 

computers were purchased to continue updating the mobile 

capabilities ofAir Force Judiciary personnel, and 30 laptop 

were purchased for use in emergencies and rapid deploym

tions. Some 170 additional high-speed modems were purcha

field to enhance the communications between legal offices a

port fielding of the new AMJAMS II. 

The Project Reflex portable law library software was up

distributed to the major commands for deployment conting

exercises. The Armed Forces Claims Information Ma

System (AFCIMS) software was fielded to all Air Force cla

in August and September, becoming operational on 1 Oct 9

Effective 1 September 1993, the Federal Legal In

Through Electronics (FLITE) system was relocated from a m

computer in San Antonio, Texas to Maxwell AFB, Alabama

now resides on a Sun minicomputer owned and operated by 

Information Services Directorate. As of 30 Sep 93, there w

58 
search software. They can be used on any PC with a CD-

TRIAL JUDICIARY 

The Air Force Trial Judiciary had an average of 22 act

judges, 6 reserve trial judges, 13 noncommissioned office

retaries assigned throughout 5 Trial Judiciary Circuits w

Chief Trial Judge, his military judge assistant, a court re

secretary are assigned to the Trial Judiciary headquarte

tary judges' duties include presiding over all general 

courts-martial tried in the United States Air Force, in 

serving as investigating officers under Article 32, UCM

sors at selected administrative discharge boards, and he

at public hearings held to consider draft environmental 

ments. During the year, military judges spent an averag

on temporary duty at locations, other than their bases o

to perform these functions. 

The ChiefJudge made supervisory visits to all CONUS 

the Pacific Circuit to review workload and facilities. The 

Trial Judiciary newsletter for military judges, was publi

ly. 

The Trial Judiciary's court reporter has now comple

months of a trial program converting her from closed 

reporting to stenotype/computer-assisted transcriptio

(CAT). The training program was extended to twenty-fo

match the training given Navy/Marine Corps CAT re

training was begun to determine baseline cost and feas

verting closed microphone reporters to CAT. 

The Nineteenth Interservice Military Judges' Semi

ducted by the Trial Judiciary at The Judge Advocate Gen
Brigadier General Jerry Scott, U.S. Air Force Reserve, and 

Judge, Tennessee Criminal Court of Appeals. Brigadie

Kenneth Gray, Chief Judge, U.S. Army Court of Military Re

the keynote speaker, and Mr. William Suter, Clerk, Unit

Supreme Court, was the graduation dinner speaker. Jud

Wiss of the U.S. Court of Military Appeals spoke to the Sem

cerning the Court. The Seminar also included some five 

hours devoted to practical judging problems, and two m

devoted to sentencing issues. 

Three active duty judges and one reserve judge attended 

week-long Military Judges' Course conducted by the Ar

Advocate General's School at Charlottesville, Virginia, fro

through 4 June 1993. Also in May, three trial judges attende

week-long Special Problems in Criminal Evidence Cour

National Judicial College, Reno, Nevada. One trial judge att

Forensic, Medical, and Scientific Evidence Course in July, 1

another attended the Managing Trials Effectively C

September 1993, both at the National Judicial College. 

judges attended the Navy-Marine Corps West Coast Judge

in November 1992. 

In November 1992, the judges of the Pacific Circuit co

two-day-long workshop at Osan Air Base, Korea. In Decem

the judges of the Eastern Circuit, Northern Region, also co

two-day-long judicial workshop, this one at Bolling Air Fo

District of Columbia. In January 1993, the judges of th

Circuit conducted a two-day-long workshop at Randolph 

Base, Texas, and in February 1993, the judges of the Weste

conducted a workshop at Travis AFB, California. All works

held in conjunction with trial and defense counsel worksho

respective circuits; the ChiefTrial Judge attended and parti

all the judicial workshops, except for the Central Circuit's w

60 
9, 

Throughout the Air Force, circuit trial counsel tried 

courts-martial and 39 special courts-martial. To update 

counsel on the latest developments in the law and furt

their trial skills, chief circuit trial counsel (CCTC) from all 

also attended the annual "Criminal Law New Developm

held at the Army JAG School in Charlottesville, Virginia. 

the CCTCs also participated in a CCTC workshop. W

base-level prosecutors were conducted by the circuit tria

all the judicial circuits. The workshops were timed to c

defense counsel and included joint sessions involving 

Advocate General, the Director of the Judiciary, and m

judges. 

APPELLATE GOVERNMENT COUNSE

In August 1993, several appellate defense and appel

ment counsel attended the annual New Developments 

Law Course held at the Army JAG School in Charlottesvi

The course covered the latest military cases in all signifi

criminal law. Additionally, in order to keep appellate 

counsel current in trial practice, an initiative was un

detail them as trial counsel in courts-martial whenever 

ules permitted. During fiscal year 1993, government app

sel prosecuted three general courts-martial. 

Appellate practice before the Air Force Court of Mili

(AFCMR) dropped off slightly during the year. As note

number of briefs filed with AFCMR, as well as the num

arguments before that court, decreased by approximatel

cent. However, in contrast, appellate practice before the U

Court Of Military Appeals (COMA) increased substantiall

ber of briefs filed with COMA by government counsel inc
Petition waivers Filed ......................................................... . 1 

Briefs Filed .......................................................................... . 4 

DEFENSE SERVICES 

The Defense Services Division was divided into the Tri

Division and the Appellate Defense Division, effective 1 Oc

and this has been working well. Colonel Jeffrey R. Owens w

division chief and was replaced in July 1993 by Colonel 

Purdon. The Trial Defense Division is responsible for all d

vices in the field worldwide with area defense counsel (AD

defense counsel (CDC), and chief circuit defense couns

reporting ultimately to the Chief of the Trial Defense Divis

The ADC program continues to earn high marks in 

Renewed focus on the independence of the defense functio

local command structure was one of the primary themes fo

The multimedia effort to inform military personnel abou

mission and role was accomplished through base newspap

commanders' calls, briefings, and posters. Given the import

subject, the independence of the defense counsel function w

ue to receive considerable emphasis. 

As reported last year, 76 Desktop III computers and pri

ordered for the ADC offices. These have been received and 

operation. In 1993, several state-of-the-art notebook comp

procured for the seven CCDCs. 

Training trial defense counsel has always been one of o

priorities and remained so in 1993. This included 

Orientation Courses for new ADCs and ADC-selectees; ann

level workshops in each of the circuits; Trial Advocacy and 

Trial Advocacy Courses taught at Maxwell Air Force Base

and on-the-job training conducted by CDCs and CCDCS. 

62 
COMA 


Supplements to Petitions..................................................... 440 

Grant Briefs.......................................................................... 18 

Oral Arguments.................................................................... 27 

Other Motions....................................................................... 167 

SUPREME COURT PETITIONS.............................................. 4 

CONFINEMENT 

At the end ofthe 1993 fiscal year, a total of 600 Air Fo

were in confinement. That figure represents about a 

decrease over the number in confinement at the end 

1992, and it is well below the prisoner population totals 

the past decade. A total of 578 ofthose prisoners were in p

finement, including 275 in long-term confinement at 

States Disciplinary Barracks (USDB), Fort Leavenwo

There were two prisoners in the Return-to-Duty R

Program. The number of Air Force prisoners on parole 

fiscal year 1993 was 239, slightly more than at the end 

1992. 

The Air Force corrections facility at Lowry Air Force B

closed during 1993. To make up for the prisoner bed sp

result ofthe Lowry closure, the Air Force contracted with 

space at its state-of-the-art, 400-prisoner consolidated br

the Charleston and Miramar Naval Air Stations. Inc

Lowry closure, day-to-day management of the Air Forc

Program was transferred from the 3320th Corr

Rehabilitation Squadron to the Air Force Security P

Kirtland Air Force Base, New Mexico. 

In accordance with the DoD Corrections Consolidat

the Army has continued to accept Air Force long-term pr

costs being borne by the senior service. The service regi
into the accused's post-arrest, pretrial silence, and various e

issues. 

In last year's report, we noted the decision of the Kansa

District Court, granting a writ of habeas corpus in the case 

Lips, 22 M.J. 679 (AFCMR 1986). The court ordered Lips' 

retrial within 120 days. The Tenth Circuit Court ofAppeals 

stay of the lower court's order and, on 1 July 1993, rev

Kansas Federal District Court's finding of jurisdiction to r

issue of whether trial counsel's cross-examination into the 

post-arrest, pretrial silence violated his Fifth Amendmen

remain silent (Doyle v. Ohio, 426 U.S. 610 (1976))

Commandant, 997 F.2d 808 (10th Cir. 1993). The Ten

affirmed the lower court's conclusion that there was no juri

review Lips' challenge to the admissibility of sexually expli

als as this issue had been fully and fairly considered by the 

The Lips decision reinvigorates the "full and fair" conside

of Burns v. Wilson, 346 U.S. 137 (1953), and significantly 

from the four factor test set forth in Dodson v. Zelez, 917 

(10th Cir. 1990). In Lips, the Tenth Circuit held that, if th

courts considered and decided the issue, even if that con

were not specific to the issue later raised, that forecloses th

ity of collateral attack in the federal district courts. In a foo

Tenth Circuit noted that, even though the AFCMR did not 

ly consider the improper cross-examination issue, it was en

the AFCMR "did specifically state that it had 'examined th

ing assignments of error and resolved them against the ap

Lips, 997 F.2d at 812, n.2, quoting U.S. v. Lips, 22 M.J. a

import of this decision is that the district courts do not ex

other three Dodson factors, if they find that the military c

the issue full and fair consideration. 

64 
found in Air Force Policy Directive (AFPD) 51-5. This d

published on 27 September 1993. The implementing in

the Preventive Law, Notary and Legal Assistance Pro

Force Instruction (AFI) 51-504. This AFI is currently und

torial review; a publishing date is pending. 

When published, AFI 51-504 will authorize paralegals 

of E-5 and above to serve as notaries worldwide. This c

mitted by Title 10, United States Code, Section 1044a. C

lations only authorize paralegals serving overseas to ac

Air Force power of attorney forms will be revised to inc

suitable for use by paralegal notaries. 

EDUCATION AND TRAINING 

The Judge Advocate General's Department provided nu

tinuing legal education (CLE) opportunities to its pe

those of its sister services, during fiscal year 1993 . 

Approximately 1,270 Air Force attorneys attended co

the Air Force Judge Advocate General School, Maxwe

Base, Alabama, and the Air Force Reserve and Air Nat

Annual Survey of the Law in Denver, Colorado. 

THE AIR FORCE JUDGE ADVOCATE 

GENERAL SCHOOL 


The Air Force Judge Advocate General (AFJAG) Scho

Air University's Ira C. Eaker Center for Professional De

Maxwell Air Force Base, Alabama. The newly-constructe

Dickinson Law Center, home of the School and the Moreh

for Paralegal Studies, was dedicated on 21 May 1993. Th

Center encloses more than 56,000 square feet and includ

toriums, a 40,000-volume capacity library, two moot cour
nity for out-of-class education and training, utilizi

computers. The Hall was named for General Russell E. D

USAF Retired, a former Commander-in-Chief of the Str

Command who saw service both as a judge advocate and 

pilot during his illustrious career. 

Resident Courses 

The AFJAG School conducted 21 different courses with 2

attended by approximately 1,600 students in fiscal year 

school conducts career entry-level courses for both paral

judge advocates, as well as continuing legal education (CLE

neys and paralegals from all services. 

Courses in which issues of military justice were a prim

include the following: 

a. The Judge Advocate Staff Officer Course-In additio

ducing new Air Force judge advocates to military legal pra

course provided four weeks of intensive military justice le

seminars. In conjunction with the classroom work, the stu

ticipated as trial and defense counsel in two moot courts, o

plea judge-alone trial and the other a fully-litigated trial w

bers. 

b. Trial and Defense Advocacy Course-This course is d

provide basic trial advocacy training to judge advocates. T

will be lengthened from one week to two weeks in fiscal 

with the addition of a full week dedicated to the litigation 

al court-martial. Instruction was provided to 80 military ad

the last fiscal year. 

c. Advanced Trial and Defense Advocacy Course-This 

one-week-long course which was attended by 40 students in 

1993. It was developed primarily to train those counsel wh

66 
e. Military Judges

 SeminarThis is an interservice 

is primarily designed to ensure that military judges ar

date with recent developments, not only in military law

the most effective techniques of judicial management. 

week-long course which was offered once in fiscal year 1

attended by 44 military judges from all the military serv

f. Paralegal Advanced Law Course-This course prov

missioned officers assigned to military justice and civil la

base level with an in-depth understanding of principles 

involved in handling adverse actions. It is a one-week

offered annually. It drew 39 paralegals in fiscal year 199

g. Reserve Forces Judge Advocate Course-This cours

oped with the goal of providing our Air Force Reserve and 

Guard judge advocates with up-to-date information on 

opments in military law to ensure their ability to p

required duties in the event of mobilization. It is a o

course taught by both AFJAG School faculty and Res

National Guard judge advocates. During fiscal year 1993

attended the Reserve Forces Judge Advocate Course. In 

this course, the AFJAG School conducted the Reserve F

Advocate Annual Survey of the Law, which is held e

Denver, Colorado, for three days. The purpose of the 

update Reserve and Air National Guard attorneys b

required attendances at the Reserve Forces Judge Advo

There were 142 Air National Guard and 180 Reserve 

attendance during the last survey. The AFJAG School al

a similar course for paralegals which was attended by 

and 75 Air National Guard paralegals. 
and tort litigation, and acquisition law. During fiscal year 

video tapes were available to paralegals. 

Publications 

The AFJAG School published one edition of The Air F

Review in fiscal year 1993. That issue contained scholarl

notes and comments that addressed a variety of legal topics

The Reporter, the Air Force's quarterly legal periodical

timely, practical information on various topics of interest to 

lawyers. Each issue provided information in 15 areas: 3 in t

military justice, and at least one lead article. This year's le

topics included articles on the Merit Systems Protection B

ernment contractor bankruptcy, professional responsibility, 

and the role of the Air Force JAG in the early developmen

space. 

The AFJAG School continued to publish and distri

Military Commander and the Law, an 800-page compendiu

topics addressing the issues confronting today's Air Force 

ders. 

Finally, the School was responsible for editing and dist

wide variety of preventive law materials to field judge a

These materials serve to introduce a collection of informativ

evant information to judge advocates providing legal ass

military personnel and dependents worldwide. 

PERSONNEL 

As of 30 September 1993, there were 1,371 judge adv

active duty. This number included one major general, three 

generals, 135 colonels, 199 lieutenant colonels, 307 majors

tains, and 63 first lieutenants. In addition, there were 24

68 

FOR RfVlEW UNDER ARTICLI H .acD IP£CIA1. ~L 

PART 4 ·WORKLOAD OF THE AIR FORCE COURT OF MILITARY REVIEW 

TOTAL ON H-'ND ll(GINNINQ 0' r:vnoo ~~7 

GENER.Al COUA'TS-M.AJn'IA.L 563 

104 

ICO S~CIAL COU!n'S-MAPmo\1. 

M:FE~D P:Ollt MVlfW 674 

GENERAL COUftTS-M.MTIAL 528

ICD IPiCIAI.. COURTS-MARI.Al 11.~ 

. TOTAL CUES AEVl!Wm 638 

GENERA.L COUPfil.MNmAL 526 ·' 

ICC tl'ICiAl CO;JR'T~TLl.l 11? 

TOTAL PENDING AT Cl.O&f Of !IO:IOD 703

CIPi!ML. COUfml.MaJmAL. "'" aco a"f.caL couRT&-MA.R"TlA.L 138 

kAT! OP' tN:lltU.K l+IJDEClllEAIE H OV!RNUfi81R Of CAI& 

ftEVlfWEC DURING L.lST FEPORTING P£RlOC -.8% 

PART 6 • APPELLATE COUNSEL REQUESTS BEFORE AIR FORCE COU

MILITARY REVIEW 

NUMaER 696 .:···..,..; 

99.0% .. 

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

430/638 

NRCENTAGI OF INClltUSf I+ ll CECRU.~ 1-1 "'v.a ~IOUS RU0'"1NG ""°° 

70/410 

MTY 0, INCltEAlf l+liOeCMA.11 .. I0VP TMt NU~~ CA&e'l """l!W!O OURllll 

LAIT fllf~G POl:IOD 336/430 

70 
Cit.IP.AL COUwra.M.A."11.AL 264 

.-ECIAL COU"1'S-MA.P:'T1Al 157 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMIER OF COMPL.AINTW I 1 7 

PART 10 ·STRENGTH 

7891 

18.95% 

.9% 

~zorz 

[ A ] SPCMs in which BCD adjudged. 
COU ATS-MARTIAL 

Attorney counsel were detailed to all special cour

Military judges were detailed to all special courts-martial

cases, the presiding judge was the ChiefTrial Judge and ful

eral courts-martial judge. When the Chief Trial Judge wa

able, military judges with other primary duties were used 

courts-martial. Control of the detail ofjudges was centrally 

by the Chief Trial Judge, and all requirements were met i

fashion. 

GENERAL COURTS-MARTIAL 

Of the 14 accused tried by general courts-martial this 

seven were tried by military judge alone. One of the sev

tried by military judge alone received a dishonorable disc

two received bad conduct discharges. Five of the seven acc

by courts with members received a sentence which included 

duct discharge. Three accused elected to be tried by a c

included enlisted members. All 14 general courts-martial r

convictions. Four of the accused whose charges were refer

eral courts-martial were nonrated (pay grades E-1 through 

were petty officers (pay grades E-4 through E-6), two were 

officers (pay grade E-7) and three were junior officers (pay 

2 through 0-3). 

The following is a breakdown of the sentences adjudged 

courts-martial tried by military judge alone (seven convicti

Sentence Cas

dishonorable discharge ..............................................................................

bad conduct discharge ..............................................................................

dismissal ....................................................................................................

72 
reduction in rate .....................................................................................

partial forfeiture of pay ($900 total) ......................................................

fine ($4,500 total) ....................................................................................

The following indicates the four sentences imposed mo

al courts-martial in the past five fiscal years. 

Number of Reduction 

FY Convictions Forfeitures Confinement in Grade 

93 ................. 14 7 (50%) 13 (93%) 11 (78%) 

92 ................. 16 11 (69%) 14 (88%) 14 (88%) 

91 ................. 8 4 (50%) 7 (88%) 5 (63%) 

90 ................. 14 10 (71%) 12 (86%) 9 (64%) 

89 ................. 5 3(60%) 5 (100%) 3 (60%) 

The following table shows the distribution of the 24 7 sp

referred to general courts-martial. 

Violation of the UCMJ, Article 

80 (attempts).............................................................................

81 (conspiracy) .........................................................................

86 (unauthorized absence) .....................................................

91 (insubordinate conduct toward warrant, 

noncommissioned, or petty officer) .................................

92 (violation of order or regulation) .......................................

107 (false official statement) ....................................................

108 (sale, loss, damage, destruction, or wrongful 

disposition of military property of the U.8.) .....................

112 (drunk on duty) ..................................................................

112(a) (controlled drug offenses) ...................................................

120 (rape) ...................................................................................

121 (larceny or wrongful appropriation) ..................................
y 

elected to be tried by a court which included enlisted memb

special courts-martial resulted in acquittals and another w

a mistrial. Twelve of the accused whose charges were refer

cial courts-martial were nonrated (pay grades E-1 through 

teen were petty officers (pay grades E-4 through E-6) and 

chief petty officers (pay grade E-7). 

The following table shows the distribution of the 281 spe

referred to special courts-special. 

Violation of the UCMJ, Article N

78 (accessory after the fact) .....................................................

80 (attempts) ............................................................................

81 (conspiracy) ..........................................................................

83 (fraudulent enlistment) .......................................................

85 (desertion) ............................................................................

86 (unauthorized absence) .......................................................

87 (missing movement) ............................................................

91 (insubordinate conduct toward warrant officer, 


noncommissioned officer, or petty officer) .........................

92 (failure to obey order or regulation) ...................................

93 (cruelty and maltreatment) ................................................

107 (false official statement) .....................................................

108 (sale, loss, damage, destruction, or wrongful 


disposition of military property of the U.8.) .......................

111 (drunken or reckless driving) ..............................................

112 (drunk on duty) ...................................................................

112(a) (controlled drug offenses) ....................................................

117 (provoking speeches or gestures) .......................................

121 (larceny or wrongful appropriation) ...................................

123 (forgery) ................................................................................

123(a) (making, drawing, or uttering check, draft, or 


order without sufficient funds) ...........................................

125 (sodomy) ...............................................................................

128 (aggravated assault) ............................................................

74 
reduction in rate .........................................................................................

forfeiture of pay ($9 ,300 total) ...................................................................

fine ($5,100) ................................................................................................

restriction ....................................................................................................

reprimand ....................................................................................................

The following is a breakdown of sentences adjudge

courts-martial tried by members (ten convictions). In four 

convictions, the accused pled guilty to all charges and spe

Sentence C

bad conduct discharge ................................................................................

confinement ................................................................................................

reduction in rate .........................................................................................

forfeiture of pay ($2,983 total) ..................................................................

fine ($6,030) .................................................................................................

restriction ....................................................................................................

reprimand ....................................................................................................

The following indicates the four sentences imposed mo

courts-martial in the past five fiscal years. 

Number of Reduction 

FY Convictions Forfeitures Confinement in Grade 

93 27 8(29%) 19 (70%) 20 (74%) 

92 23 11 (48%) 18 (78%) 19 (83%) 

91 26 16 (62%) 22 (85%) 21 (81%) 

90 36 16 (44%) 18 (50%) 31 (86%) 

89 36 18 (50%) 14 (39%) 26 (73%) 

SPECIAL COURTS-MARTIAL SUMMAR

Fifty-eight percent of the accused tried by special c

were tried by military judge alone. Twenty-five perce
The Coast Guard has 172 officers designated as law 

(judge advocates) serving on active duty-122 are serving in 

lets and 45 are serving in general duty billets. Nineteen Co

officers are currently undergoing postgraduate studies in la

be certified as law specialists at the completion of their stu

Coast Guard officers who recently graduated from law sc

pleted the Navy Basic Lawyer Course in Newport, Rhode I

have been certified under Article 27(b), UCMJ. A total of 

tional training quotas were filled by attorneys, paralegal

and secretaries assigned to Coast Guard legal offices. Appr

$130,000 was spent on legal training during the fiscal year. 

U. S. COAST GUARD COURT OF MILITARY RE

During fiscal year 1993, the Court was composed of five 

military judges, all of whom are commissioned officers. Th

judges are active duty Coast Guard captains and the othe

retired officers, who are also civilian employees of the Coa

The Court is divided into six panels with the Chief Judge 

each panel as the only judge with primary duty as a judge

panel organization of the Court has enabled each judge to 

decide cases with every other judge on a panel ofthree. The C

sisted of the following judges at the close of fiscal 1993: 

Chief Judge Joseph H. Baum 

Judge Alfred F. Bridgman, Jr. 

Judge Terrance M. Edwards 

Judge John H. Fearnow 

Judge Mark A. O'Hara 

Issues challenging the status of the Court and its judges 

initially raised in fiscal 1992 continued to be asserted b

Court, the Court ofMilitary Appeals and the U.S. Supreme C

76 
Coast Guard. The Court ofMilitary Appeals held that app

the General Counsel did not satisfy the Constitution's A

Clause since he is not a department head. The Court stat

that appointment by the Secretary of Transportation w

with the Constitution, since he is head of a cabinet-lev

department and has been authorized by Congress to" 'ap

cers and employees ofthe Department ofTransportation,

Coast Guard is a part (14 USC § 1), without Senate con

USC§ 323." U.S. v. Carpenter, supra at 37 M.J. 294. Th

noted that it had been advised that the Secretary of Tr

had appointed all members of the Court of Military R

January 1993, fully complying with the Appointments C

Constitution as of that date. 

A petition for certiorari to the Supreme Court has been 

v. Carpenter and the Appointments Clause issue in U.S. 

argued to that court on 3 November 1993. Final decision 

ity of this Court's judicial appointments awaits Supreme 

in those cases. The status of four of the five judges of th

also challenged in U.S. v. Carpenter for another reason, 

part-time nature of their duty on the Court. That issue h

raised earlier, discussed at length, and found to be with

U.S. v. Kovac, 36 M.J. 521 (C.G.C.M.R. 1992). Subsequent

of Military Appeals in U.S. v. Carpenter, supra, at 37 M

held, as well, that there is no constitutional or statutory 

that appellate military judges perform only judicial dutie

serve as full-time judges. The petition for certiorari i

encompasses this issue and a challenge to the lack of fix

well as the Appointments Clause issue. 

Appendix (A) includes a statistical report of Court act

year 1993. In addition to the decisional work reflected in a
pg g, 

That training seminar was an outgrowth of the 1992 

Military Judges' Conference in Newport, Rhode Island. At 

sion of that conference, it was decided that steps should b

devise and present a specially tailored training program 

appellate military judges. To that end, an ad hoc joint tra

mittee was formed to explore alternatives and offer recomm

to the Chief Judges of the Courts of Military Review. 

After initially considering several possible training a

including a course at the Army Judge Advocate General's 

committee decided to recommend development of its own 

seminar with the help of Chief Judge Frank Nebeker of th

Veterans Appeals, to be held locally under the auspic

American Bar Association's Appellate Judges Conferen

approval of that recommendation by the Chief Judges o

Courts of Military Review, that seminar was held in Sep

Bolling Air Force Base. 

The seminar was such a success that the committee rec

holding it again in 1994 at a military installation in the 

That recommendation was approved in October by the judg

ing the two-day 1993 All Services Appellate Militar

Conference. This year's conference was hosted by the Arm

Military Review at the Army Judge Advocate Genera

Charlottesville, Virginia and all of the judges from the Co

Court attended. Chief Judge Baum, as chair of the joint tra

mittee, reported the results of the committee's work to th

bled and volunteered to continue as chair upon the conferee

hold another training seminar in 1994. 

This past year, Chief Judge Baum, in addition to his w

training committee, continued to be active in the Judiciary 

the Federal Bar Association and the Federal American In

He was Membership Chairman for the Inn this past yea

78 
Chief Counsel, U.S. Coast Guard 
fOA REVIEW UNDER ARTICLE 66. eco S"fCIAl COUAT$.f•1U,fltTIAL 

FOR ( XAMINATION UNOE A ARTICLE 69. GEN( RAL COUfllTS·MARTIAL 

PART 4 ·WORKLOAD OF THE COAST 

TOTAL ON HAND BECiilNNtf'fC OF 'EfHOO 

GENERAL COURT$-M.UHIAL 

BCD 5'EC1A.L COURTS-MAATIA.l 

REFEflllAEO FOA REVIEW 

GENEAAL COUATS-MARTIAL 

10 

TOTAL '"ENDING AT CLOSE OF '"EAIOO 

CENEAAL COURTS·MAATIAL 6 

ICO S'ECIA.l COUATS·MA"TIA.l 8 

RATE OF tNC"EASE C•)IOECflllEASE C-) OVE" NUMlf" OF CASES 


"EVlfWEO OUfllllNG LAST "£PORTING 'fRIOO -3% 


PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE COAST GUARD COURT O

REVIEW 

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

PERCENTAGE OF COMR "£VIEWED CA.SES '0RWAROEO TO USCMA 1 ~ f LL tl

PlRCENTA.CE 0' INCREASE (•)IOECR(A.SE (-I OVEflll ,.R(VIOUS "EPOfllTING '"Eflll;IQO 

Pf fill; Cf ""T AGE OF TOT AL PETITIONS GRANT( O 1 U f l ~ )

PC ACE NT ACE OF t"IC.-if A$f (•l/OECR EA.Sf f-1 OVE llli '""E VIOUS Af PQflllTl"IC Pf A10Q +J4

Pf A.:£"-"" AGE OF 'fT ITIONS GRANT£ O Of TOT AL CASES 1111( VIEWED I Y COMfilt 1 U f LL 4

"Alf OF lNCAfA.Sf f•l/0£CtllfA5f 4-1 OVf" THE NUM9Elll Of CASES Af\llfWEQ OUllllNC 

LAST"-£ PQflll'TO.,G f'ffilltOO 12

l'ACC I OF:! 

Aooendix A 

80 
PART10-STRENGTH 

AVE AA.CE ACTIVE DUTY ST RE NC TH 36864 I··.-·.·..· 

PART 11 ·NONJUDICIAL PUNISHMENT {ARTICLE 15) 

NUM8E .. OF CASES WHERE NONJUDICIAL PUNISHMENT IMl"OSEO 1093 "ATE fl"E .. 1,000 29.65 "ATE OF INC.. EASE (•)/DECREASE C-) OVE .. P"EVIOUS PERIOD -2% 

'A.GE10F1