on 


MILITARY JUSTIC

INCLUDING SEPARATE REPO

of the 


U.S. COURT OF MILITARY APPE

THE JUDGE ADVOCATES GEN

OF THE U.S. ARMED FORCE

AND THE CHIEF COUNSEL 

OF THE U.S. COAST GUAR

For the Period 

October 1, 1985 to September 30, 1

PROPERTY OF U. S. ARMY 

THE JUDGE ADVOCATE GENERAL § ~

LISRARY 
SERVICES 


of the 


U.S. Senate and House of Repres

and to the 


SECRETARY OF DEFENSE, 

SECRETARY OF TRANSPORTAT

and 


SECRETARIES OF THE 


ARMY~ NAVY, AND AIR FORC

· PURSUANT TO THE 

UNIFORM CODE OF MILITARY JUS

For the Period 


October 1, 1985-September 30, 19
OF THE ARMY 

REPORT OF THE JUDGE ADVOCATE GENERAL 

OF THE NAVY 

REPORTOFTHEJUDGEADVOCATEGENERAL 

OF THE AIR FORCE 

REPORT OF THE CHIEF COUNSEL OF THE 

COAST GUARD 
October 1, 1985 to September 30, 198

The Judges of United States Court of Military App

Advocates General of the Army, Navy, and Air Fo

Counsel of the Coast Guard; the Director, Judge Adv

Headquarters, United States Marine Corps; Mary Ell

quire, and Professor A. Kenneth Pye submit their an

the operation of the Uniform Code of Military Justic

Article 67(g), Uniform Code of Military Justice, 10 U

During fiscal year 1986, the Code Committee met on 

occasions to review the administration of military jus

previous fiscal year and consistent with the expressi

Congress, all of the meetings were open to the public a

noted in the Federal Register. Indeed, various civilia

attorneys addressed the Code Committee on several 

cerning numerous issues involving the administrati

justice. As in fiscal year 1985, the members of the C

were pleased with the participation of members of th

meetings and found their comments extremely valuab

ing various issues relating to the administration of mi

the various Armed Services. 

The first meeting of the Code Committee during fi

was held on December 18, 1985. During this meetin

Everett observed that there had been a limited number 

had to be held pending the arrival of the third judge 

retirement ofJudge Fletcher in September 1985. Addi

Cox observed that his visits to the United States Arm

Facility at Fort Riley, Kansas, and the United State

Barracks at Fort Leavenworth, Kansas, were very in

further observed that his experience as a civilian tria

visits to civilian confinement facilities reflected tha

facilities were superior in security, cleanliness, space, 

tion programs. Various members of the Code Commi
April 1, 1986, numerous proposed changes to the U

Military Justice were examined and discussed. Sp

sideration and discussion occurred with respect to pr

ments to Articles 2 and 3 concerning jurisdiction over 

posed changes to Article 25 to permit oral reques

members; to Article 43 to change the statute of lim

years except for capital offenses and unauthorized a

periods of war, which would not have any limitation; 

simplify the time-limits for post-trial processing of case

to provide additional challenges to court members; 

50(a) to require an accused to prove lack of mental resp

preponderance of the evidence. The question of wheth

the United States Court of Military Appeals should b

court constituted under Article Ill, United States Co

another matter for consideration during this meeting. 

ing the appropriateness of changing the rules relating 

of offenses arising out of the same transaction w

discussed. The question of whether copies of the minu

Committee meetings should routinely be distributed to 

of the Senate and House Armed Services Comm

General Counsel of the Department of Defense and 

Transportation was also discussed during this meeting

the status and function of the Joint-Service Committ

Justice were analyzed. 

The final meeting of the Code Committee was condu

1986, wherein the status and function of the Joint-Serv

were discussed again. Additionally, members of the C

agreed that an executive summary of the minutes, r

entire minutes of the meetings of the Code Committee

vided to the Chairmen of the Senate and House A

Committees and the General Counsel of the Departm

and Department of Transportation. Finally, there wa

to whether the Court of Military Appeals should be 

2 
Associate Judge 

EUGENE R. SULLIVAN 

Associate Judge 

Major General HUGH R. OVERHOLT 

The Judge Advocate General, U.S. Army 

Rear Admiral HUGH D. CAMPBELL 

The Judge Advocate General, U.S. Navy 

Major General ROBERT W. NORRIS 

The Judge Advocate General, U.S. Air Force 

Rear Admiral JOSEPH E. VORBACH 

Chief Counsel, U.S. Coast Guard 

Brigadier General DAVID M. BRAHMS 

Director, Judge Advocate Division, 

Headquarters, U.S. Marine Corps 

MARY ELLEN HANLEY, Esquire 

Professor A. KENNETH PYE 

y j

States Senate and House of Representatives and to t

Defense, Transportation, Army, Navy, and Air For

with Article 67(g), Uniform Code of Military Ju

§867(g). 

THE BUSINESS OF THE COURT 

During the fiscal year 1986 term of the Court, 2

grant of review, certificates for review, cross-pe

reconsideration petitions, petitions for new trial, 

traordinary relief and writ appeal petitions were file

This represents only a slight increase from the num

filed with the Court during the fiscal year 1985 ter

the number of filings reflects a termination of the do

filings experienced in fiscal year 1985 and the rein

upward trend which had been experienced in fisca

1985. 

The Court reviewed and acted on 2582 petitions fo

during fiscal year 1986, granting the petitions in 267 

slightly more than 10% of the cases considered. On th

of mandatory appeals, certificates for review, and g

the Court took final action in 267 cases.1 Approxim

Court's actions on these master docket cases resulted 

whole or in part, of the decisions of the Courts of M

Although the Court operated with only two sittin

most of the fiscal year term, approximately 50% more 

were issued than during fiscal year 1985. 

1Although not a part ofthe business ofthe Court, it is noted tha

1986, the Court was notified that petitions for writ of certiorar

Supreme Court of the United States in 33 master docket cases in 

final action. 
JUDGE EUGENE R. SULLIVAN TAKES OATH OF O

On May 27, 1986, Judge Eugene R. Sullivan took the 

as a Judge of the United States Court of Military Ap

vestiture ended an almost 2-year period during wh

operated with only two judges. 

Judge Sullivan served on active duty with the Unite

from 1964 to 1969. His active service included duty i

which he was awarded the Bronze Star, Air Medal, Arm

tion Medal, Ranger and Parachutist Badges. His civil

included a clerkship with the United States Court of Ap

cuit); private practice of law with a law firm in Wash

and public service in the Office of Special Counsel to th

the United States, in the United States Department of J

Deputy General Counsel of the Department of the A

mediately prior to joining the Court, Judge Sullivan 

General Counsel of the Department of the Air Force. 

JUDICIAL VISITATIONS 

Consistent with the past practice of the Court, duri

1986 the Judges of the Court visited numerous military 

and delivered speeches to numerous professional 

Previous experience has demonstrated that such vis

better understanding of the Court's work and its effect 

administration of justice within the Armed Services. 

In fulfillment of this responsibility, Chief Judge 

Everett addressed and visited with the members of 

Government and Appellate Defense Divisions of the 

Corps Appellate Review Activity in Washington, D.C.

Army Judge Advocates Conference, Charlottesville, V

6 
grams by speaking at a banquet of military and civili

judges at McGuire Air Force Base, New Jersey, and 

military lawyers and the. members of the Riverside B

at March Air Force Base, California; to military la

Armed Services at Wheeler Air Force Base, Hawaii; a

of the 363d Tactical Fighter Wing, Shaw Air Forc

Carolina. In addition, he addressed the Military Ai

Conference, Scott Air Force Base, Illinois; the 29th M

Course, Charlottesville, Virginia; the Annual Americ

tion Meeting and Judge Advocates Association Meeti

New York; the Army's Fifth Circuit Judicial Confere

Germany; and the Sixth Circuit Air Force Area Defens

ference, Garmisch, Germany. He participated in the 

Judicial Conference of the Fourth Circuit U.S. Cour

White Sulphur Springs, West Virginia, and was a 

Seminar entitled "The U.S. Courts and National S

sored by the Center for Law and National Security

Virginia, Charlottesville, Virginia. 

Judge Walter T. Cox, III, participated in the Arm

JAG Conference in Charlottesville, Virginia, hosted by 

vocate General of the Army; visited the Naval J

Newport, Rhode Island and the Navy-Marine Corps Ap

Activity, Washington, D.C.; attended the U.S. Marin

Anniversary - Commemorative Ceremony at the U.S

Memorial, Arlington, Virginia; visited and toured m

ment facilities at Fort Riley and Fort Leavenworth, K

ticipated in the All Services Appellate Military Judg

Washington, D.C.; the U.S. Pacific Commanders' Lega

Korea; and the Seventh Annual On-Site JAG Traini

CLE Seminar in Columbia, South Carolina. He als

senior staff officials at the U.S. Air Force Academy, L

Base, and the U.S. Space Command in Colorado; atten

reception of the Phi Alpha Delta Law Fraternity 
Course at the Institute ofJudicial Administration, New 

sity. In addition, he attended the Army and Air F

Judges' Conference and the Air Force Area Defense 

ference in Germany. Judge Sullivan also visited Scott 

and the U.S. Court of Appeals (8th Circuit). 

HOMER FERGUSON CONFERENCE 

The Eleventh Annual Homer Ferguson Conference w

George Washington University Marvin Center on Ma

As in previous years, this conference was jointly sp

Court and the Military Law Institute. This year's conf

tified for credit to meet the continuing legal education 

of various State Bars and was designed to help both 

civilian practitioners maintain those professional skil

practice before trial and appellate courts. 

The speakers for this year's conference included 

Edwin H. Daniels, Chief Counsel, United States Coa

Admiral Thomas E. Flynn, The Judge Advocate G

States Navy; Professor William Van Alstyne, cons

scholar and author of "Interpretation of the First 

(1984), Duke University Law School; Dean John Jenk

Dean of External Affairs, The National Law C

Washington University; Brigadier General Emory 

(Ret.), former Judge, U.S. Court of Appeals (Fourth 

Andrew Frey, Deputy Solicitor General of the Unit

Honorable William W. Wilkins, Jr., Chairperson, 

Sentencing Commission; Dean Michael F. Noone, A

Columbus School of Law, Catholic University; Profes

Saltzburg, University of Virginia Law School; Lieu

Lee Schinasi, JAGC, U.S. Army; Professor Dav

St. Mary's Law School; Professor Norman Lefstein, C

8 
, g

Army; Lieutenant Colonel Philip A. Meek, U.S. Air Fo

Macher, M.D., U.S. Public Health Service. 

Additionally, the invocation was offered by Brigadi

P. McDonough, Deputy Chief of Chaplains, United S

The conferees were welcomed by The Honorable Robi

Chief Judge, and The Honorable Walter T. Cox, III, A

United States Court of Military Appeals, on behalf o

by Colonel Walter L. Lewis, USAF (Ret.), on behalf 

Law Institute. 

The conferees included numerous military and civ

well as Judges of the Courts of Military Review, leg

commentators in the field of military justice. As in 

conference was videotaped to provide a medium of edu

interested in the administration of military justice. I

tions of this year's conference were later telecast on 

SIGNIFICANT DECISIONS AFFECTING THE ADMIN

MILITARY JUSTICE WITHIN THE ARMED F

Jurisdiction 

During the fiscal year 1986 term the Court in U

Solorio, 21 M.J. 251 (C.M.A. 1986), cert. granted, 54 

(U.S. June 16, 1986XNo. 85-1581), reviewed, under t

Article 62, Uniform Code of Military Justice, 10 U.S.C

ofthe United States Coast Guard Court ofMilitary Re

military jurisdiction upon an appeal by the governm

the trial judge had concluded that there was no subje

2This section of the Court's Annual Report is prepared solely as a

by the staff ofthe Court. It is included for the convenience of the rea

ly locating cases of particular interest during the term. The case s

precedential value and should not be cited in briefs filed with the 
in view of the accused's transfer to another location w

The Court also ruled that the pendency of other simil

relevant in determining the exercise of court-mart

where the other offenses occurred on a military reser

Similarly, in United States v. Scott, 21 M.J. 345 (C.M

Court held that court-martial jurisdiction was appropri

where child sex-abuse offenses were committed off b

held that the offenses constituted the same type of c

which the accused had committed on base and involved 

who were daughters of retired military members. Ad

Court noted that the offenses were committed while th

only briefly away from his place of duty. The Court a

in Scott that the circumstances reflected that the 

adversely affect the reputation and morale of the milt

that the accused was an officer, a fact which enhanced 

impact on the military community. 

However, in United States v. Barideaux, 22 M.J. 60 

the Court held that military jurisdiction was inapprop

ed to convict the accused of distributing marijuan

distribution involved a female agent of the Army'

vestigation Division whom the accused had no reason t

soldier; such distribution occurred in a civilian commu

accused was on terminal leave from the service; an

received assistance by the intercession of a civilian. 

Public Trial 

Citing United States v. Grunden, 2 M.J. 116 (C.M

United States v. Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 

Court held in United States v. Hershey, 20 M.J. 433 

that the Sixth Amendment right to a public trial was 

able to courts-martial. The Court further observed tha

for closing a court-martial from the public are the sam

10 
stitutional violation under the circumstances, even t

judge did not follow appropriate procedures for 

question. 

Right to Counsel 

The question of when a military accused is entitle

tion by counsel was addressed by the Court in Unite

tenbarger, 21 M.J. 41 (C.M.A. 1985). The Court he

under the facts of this case, a three-month period betw

charges and appointment of counsel during which t

psychiatrically evaluated and found to be mentally in

a "critical stage" of the proceedings which required t

counsel. However, the Court refused to apply a per se 

rule but, rather, assessed the error and conclud

harmless beyond a reasonable doubt as trial counsel m

to exploit a lack of representation; the defense suffer

tage in the preparation of the case; and the accused 

judice in raising a defense of insanity during the tria

Addressing a claim by an accused of inadequacy of 

by his trial defense counsel, the Court in United Stat

M.J. 440, 442 (C.M.A. 1986), quoting from United Sta

624 F.2d 196, 208 (en bane) (D.C. Cir. 1979) (plu

adopted the standard that "the claimed inadequacy m

incompetency that falls measurably below the perform

expected of fallible lawyers." Upon examining the c

sideration, the Court held that the defense counsel wa

and that he presented evidence and cogent argument

client throughout the court-martial proceedings. 

As a result of recent legislation amending the provi

1259, Title 28, United States Code, and Article 67(h), U

Military Justice, 10 U.S.C. §867(h), allowing review 

sions of the Court by the Supreme Court of the U

historic event occurred in fiscal year 1986. The S
tionship between the events that occurred before Good

counsel and the interview which took place later that 

States v. Goodson, supra at 23. 

An issue concerning the severance of an attorney-cl

ship was addressed by the Court in United States v. Gn

l(C.M.A. 1985). Therein the Court held that as the accu

unauthorized absence effected a termination of an earlie

attorney-client relationship, the accused was not entitle

that another lawyer was assigned to represent him b

court-martial which tried some of the charges which had 

the original attorney-client relationship. 

Speedy Trial 

As in preceding fiscal years, the Court was required to 

number of speedy trial issues. Applying the factors set fo

v. Wingo, 407 U.S. 514 (1972), the Court held in Un

Grom, 21 M.J. 53 (C.M.A. 1985), that the accused had no

a speedy trial where he was held for approximately 

beyond his term of enlistment. The Court observed that 

case was delayed because the Government desired to try 

son for the purpose of obtaining his testimony against 

Although this endeavor was unsuccessful, the Court ru

Government's reason was legitimate and that any pre

accused was minimal. 

Addressing the issue of the effective date for Rule of C

(R.C.M.) 707, Manual for Courts-Martial, United State

case that was reviewed by the Court as a result of an a

United States under the provisions of Article 62, UCM

§862, the Court held in United States v. Leonard, 21 M.

1985), that the speedy trial provisions of R.C.M. 707 shou

to only those cases where the preferral of charges or the 

restraint occurred on or after August 1, 1984. In anothe

ing the proper standards for review of appeals filed b

12 
Evidence (Mil.R.Evid.) again occupied a significa

Court's calendar during fiscal year 1986. In 

Cameron, 21 M.J. 59 (C.M.A. 1985), the Court cite

as a basis for holding that the trial judge committe

by allowing a social worker to testify in effect th

witness. Pursuant to Mil.R.Evid. 401, the Court hel

v. Owens, 21 M.J. 117 (C.M.A. 1985), that it was app

counsel to ask an accused on cross-examination 

asserted or assumed as fact that the accused had bee

victed of possession of marijuana and an unlicensed 

been arrested for assault and battery. The Court 

were significant factors omitted from the accused

become a warrant officer and therefore tended to 

demonstrating a prior act of intentional falsehood. 

Court found that the military judge properly balan

worth ofthe questions against the potential for unfa

accused under the provisions of Mil.R.Evid. 403. Ho

held that the cross-examination testimony identify

the uncharged assault and battery as the accus

should not have been admitted in a court-martial f

the accused's third wife, but that, because of the 

clusive proof of guilt, the accused had not been prej

States v. Maxwell, 21 M.J. 229 (C.M.A. 1986), the 

where the trial counsel asked an accused wheth

himself a peaceful person, the accused's response di

defense offer of evidence of the accused's character a

trial counsel should not have been allowed to pre

other incidents ofthe accused's violent behavior und

of Mil.R.Evid. 404. 

Examining an issue concerning the definition of a

the Court held in United States v. Mustafa, 22 M

1986), that a witness did not have to be an outstandi

the discipline involved but only someone whose expe

ing could help the court members. Therefore, th
the identity of the person who perpetrated the sexual o

was relevant in the medical treatment. Although find

ment admissible under the facts presented in this case, 

phasized that the statements presented were clearly or

treatment and that if such statements were oriented 

testimony, such statements would not be admissible. 

Availability of Witnesses 

The question of access to witnesses and the witnesses' u

for the purpose of accepting pretrial statements during t

their in-court testimony was addressed by the Court in 

during the fiscal year 1986 term. In United States v. Hi

267 (C.M.A. 1986), a potential alibi witness had been s

the request of the defense. However, when this witnes

pear at trial, the military judge informed defense coun

was nothing he could do about granting a continuance 

appearance of the witness in question. After noting that 

comply with a subpoena to appear before a court-martia

offense which may be prosecuted in United States Distr

Court held that the Government was not powerless to pr

ian witness who refused to appear and concluded that 

conviction required reversal because the Government 

its power and authority to obtain the witness in questi

Addressing the question of what, if any, inferences m

from the absence of a witness, the Court in United Stat

21 M.J. 414 (C.M.A. 1986), held that the trial counse

argued in a manner which implied recent fabrication b

because a potential defense witness had not been produc

ruled that the accused had testified that he had been g

sion to use an automobile by a named individual and th

was not called as a witness at trial. However, the defen

unsuccessfully to introduce evidence to reflect that the 

been recently located and the failure to locate him on a

14 
appearance in the courtmartial, citing United Sta

12 M.J. 463 (C.M.A. 1982). Thus, the Court held that 

unavailable for the purpose of accepting former testim

by Article 49(d), UCMJ, 10 U.S.C. §849(d), and M

Additionally, the Court held that the witness was una

purpose of the confrontation clause of the Sixth Ame

that the Government had made a good-faith effort 

witness and that the confrontation clause did not 

location of the situs of trial from a foreign country 

Florida in view of the military exigencies involved 

court-martial. 

A contrary result was reached by the Court in Unit

dero, 22 M.J. 216 (C.M.A. 1986), because the Govern

demonstrating the unavailability of the witness, fai

the reliability of the statement which was used in th

witness. There the Court observed that the witness 

her home in the Federal Republic of Germany and ci

dicated that she would not return to the United States 

of testifying during a court-martial. However, the C

that the statement was improperly admitted becaus

ecuted under circumstances indicating a sufficient degr

Rather, the Court held that the statement was given 

under circumstances which indicated the witness m

motive to falsify the statement in question. However

cumstances the Court held that the erroneous ad

pretrial statement was harmless beyond a reason

United States v. Cokeley, 22 M.J. 225 (C.M.A. 1986), 

that the Government had failed to demonstrate that 

unavailable and that, accordingly, the acceptance in

videotaped deposition which was properly taken was r

The Court noted in this case that the military judge 

the facts and circumstances to determine ifthe witnes

and that, here, circumstances indicated that while th

have been unavailable on the date oftrial, additional 
routinely locked. As there was no reasonable expectat

the Court further held that there was no requireme

search authorization prior to opening the locker 

Therefore, the Court ruled that there was no error com

acceptance of evidence found when such locker was en

agents. A similar result was reached in United States 

21 M.J. 370 (C.M.A. 1986), where a sergeant standin

walkway observed what he believed to be a drug transa

racks room. Upon examining the facts and circumstan

concluded that the accused in question had no reasonab

of privacy in the room of a friend, that the sergeant wa

area when the activity was observed, and that, after o

activity, the sergeant acted reasonably in gaining acce

and obtaining the drugs which were secreted in a lo

knocked on the door. 

Pretrial Admission 

In United States v. Wheeler, 22 M.J. 76 (C.M.A. 19

addressed an issue ofwhether an accused's pretrial stat

missible because the agents who interviewed him 

reference to religious beliefs. In upholding the admis

statement, the Court ruled that, under the circumstanc

there was no coercive impact on the accused since he hi

brought up the subject, the interview was of a short du

peal to the accused's religious beliefs was general i

amounted to no more than an appeal to his conscience, a

voluntarily waived his rights before the subject of 

mentioned. 

Sufficiency of the Evidence 

An accused's criminal culpability for aiding in a su

dressed by the Court in United States v. Varraso, 21 M.

1985). The evidence therein reflected that the accused

tioning a rope and noose around the victim's neck wa

16 
a psychiatrist a few hours before the homicide; the acc

of evidence immediately after the murder; there was n

bizarre or unusual conduct by the accused; and the a

record as an outstanding soldier. 

In United States v. Harper, 22 M.J. 157 (C.M.A. 198

held that laboratory results of urinalysis coupled 

testimony explaining such results constituted sufficie

find beyond a reasonable doubt that the accused use

However, the Court reserved for a future case the questi

the results of laboratory testing would be sufficient stan

sustain a conviction. 

In United States v. Jefferson, 22 M.J. 315 (C.M.A. 19

analyzed the history of the felony-murder rule and t

history of Article 118, UCMJ, 10 U.S.C. §918. After ex

history, the Court held that Congress intended to estab

law that engaging in one of the applicable felonies 

clusively presumed to be a cause of any death that occu

felony is being perpetrated or attempted. Thus, the Co

the evidence was sufficient to establish the accused's 

felony-murder because it was adequate to show that the 

participating in a robbery when the named victim wa

co-felon. 

Fraternization 

Distinguishing a contrary earlier holding in Uni

Johanns, 20 M.J. 155 (C.M.A. 1985), the Court upheld a 

wrongfully fraternizing with enlisted women in Un

Mayfield, 21 M.J. 418 (C.M.A. 1986). The Court noted 

Johanns, the accused in Mayfield had been specifically i

the alleged conduct was prohibited and that his invo

enlisted trainees was inappropriate for an officer. A s

was reached in United States v. Adames, 21 M.J. 465 (

wherein the Court upheld an officer's conviction fo

fraternizing with female soldiers where he became i
attempt to contradict the providence inquiry after tri

Concerning the adequacy of a specification to allege 

Court held in United States v. Watkins, 21 M.J. 208 

that the adequacy of a specification alleging an off

liberally construed in favor of its validity where it was 

the first time on appeal. The Court further held th

specification failed to allege "without authority" fo

unauthorized absence under Article 86, UCMJ, 10 U.

challenged for the first time on appeal, and where, as he

pleads guilty and has a pretrial agreement, such specif

be declared fatally defective. This ruling in effect ov

trary decision in United States v. Fout, 3 U.S.C.M.A. 

121 (1953). 

The Court established a procedural rule in United Sta

22 M.J. 33 (C.M.A. 1986), which requires an appellan

both to demonstrate good cause and to raise some app

prerequisites for the acceptance of a petition for g

which is sought on motion to be filed out of time with 

Consumption or Loss of Evidence 

An issue concerning the loss of evidence was address

in United States v. Kern, 22 M.J. 49 (C.M.A.1986), wher

was convicted of larceny of government property but, b

perty was returned to normal channels prior to trial, t

no access to the property in question. The Court held t

evidence was not "apparently exculpatory", the burd

accused to show some exculpatory value that was or sh

apparent to the Government and that the accused wa

tain comparable evidence by other reasonably availabl

prosecution would be barred. The Court noted in 

evidence was apparently inculpatory rather than exc

there was no bad faith on the part of the Government, 

18 
Jencks Act 

In United States v. Marsh, 21 M.J. 445 (C.M.A. 19

held that the Jencks Act, 18 U.S.C. §3500, did not re

ing of the testimony of government witnesses 

testimony during an Article 32 pretrial investigation 

recorded but such tapes had been lost or destroyed. The 

that the accused in this case was provided with 

transcript of the previous testimony and that there w

the Government had intentionally withheld or destroy

question. Similarly, in United States v. Pena, 22 M

1986), the Court held that the Government's failure 

tape recordings of investigative reports of two gove

which were transcribed substantially verbatim in

reports did not constitute a violation of the Jencks A

Appellate Rights Advice 

The question of the procedures required to advise a m

of his appellate rights during a court-martial was ad

Court in United States v. Rogers, 21 M.J. 435 (C.M

Court held in that case that a military judge could adv

of his appellate rights either orally or in written form 

visions of Rule for Courts-Martial (R.C.M.) 1010. The 

held that the trial record must demonstrate that th

been advised of such appellate rights either orally or 

if the advice had been given in writing, that he had r

the advice form; that the accused understood such righ

acknowledged that he had discussed such rights wit

Additionally, the Court held that the accused must be 

tunity in open court to request an explanation of any 

rights. The Court also ruled that, even though the re

this case failed to demonstrate the required advice pr
court-martial authorized to adjudge a punitive discha

appear as a defense character witness at the sentencin

trial to testify as to the accused's good character and t

that the convicted soldier be retained in the service. Add

Court observed that this commander's remarks were 

preted, or misinterpreted, to reflect an intent that a sub

mander, first sergeant, or other person from an accused

not give favorable presentencing testimony on behalf o

and that such interpretation may have also been extende

ings portion of the court-martial. The Court noted in thi

the United States Army Court of Military Review had t

kinds of remedial action in these cases, which include

rehearings if the record did not affirmatively show the m

not influenced; rehearings or reassessment of sentences 

failed to show why the defense counsel did not produce a

witnesses; limited rehearings to determine if the accu

deprived of character witnesses; rehearings to determine 

court members heard the convening authority's remark

aside of the findings and sentences in some cases; and n

reviews and actions by a different convening authority. 

ing the history of the issue of command influence and C

intent to eliminate such influence from the military ju

the Court concluded that the findings and sentence of a 

should not be approved unless the Court was satisfi

reasonable doubt that the command influence did n

results of such court-martial. Upon examining th

cumstances and evidenc~ pertaining to this issue, the Co

that the convening authority was not disqualified from r

ofthe cases to trial as he had no personal interest in the c

motivated solely by official concerns. Therefore, the Cou

that the commander was not an accuser within the mea

cle 1(9), UCMJ, 10 U.S.C. §801(9). The Court further obs

view of the extensive procedural safeguards within 

20 
lishing at trial that the defense access to witnesses w

by command influence to the extent that it affected t

trial. 

As to· sentencing, the Court held that if the issue 

fluence is properly raised, the burden is on the 

establish beyond a reasonable doubt that favorab

extenuation and mitigation was not curtailed by 

authority's command activities. 

Analyzing the four cases decided in United States v. 

the Court concluded that the remedial actions taken 

Military Review and the trial judges in each case had 

possible prejudice from these cases. However, the Co

that it desired to make it clear that incidents of illeg

fluence simply must not recur in other commands in 

Robinson 0. Everett 

Chief Judge 

Walter T. Cox, III 

Associate Judge 

Eugene R. Sullivan 

Associate Judge 
--

Mandatory appeals filed . . . . . . . . . . . . . . 0 

Certificates filed . . . . . . . . . . . . . . . . . . . . 10 

Reconsiderations granted . . . . . . . . . . . . . 3 

Petition Docket 


Petitions for grant filed ............... 2711 

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

Petitions for new trial filed . . . . . . . . . . . . 6 

Miscellaneous Docket . . . . . . . . . . . . . . . . . . . 33 

TOTAL ............................ 2767 

CUMULATIVE TERMINATIONS 


Master Docket . . . . . . . . . . . . . . . . . . . . . . . . . 267 

Petition Docket ........................ 2582 

Miscellaneous Docket . . . . . . . . . . . . . . . . . . . 33 

TOTAL ............................... 2882 

CUMULATIVE END PENDING 


Master Docket . . . . . . . . . . . . . . . . . . . . . . . . . 258 

Petition Docket . . . . . . . . . . . . . . . . . . . . . . . . 702 

Miscellaneous Docket . . . . . . . . . . . . . . . . . . . 3 

TOTAL ............................... 963 

OPINION SUMMARY 

CATEGORY SIGNED PERCURIAM MEM/ORDER 

Master Docket ............ 87 14 166 


Petition Docket ........... 4 0 2578 


Miscellaneous Docket ...... 0 0 33 


TOTAL ................. 91 14 2777 


22 
Assigned Opinions pending . . . . . . . . . . . . . . . 92 


Judges' conference pending. . . . . . . . . . . . . . . 0 


Oral argument pending . . . . . . . . . . . . . . . . . . 27 


Preargument conference pending . . . . . . . . . . 43 


Calendar committee pending . . . . . . . . . . . . . 78 


Final briefs pending ...................~ 

TOTAL ............................... 258 


FILINGS (PETITION DOCKET) 


Petitions for grant ofreview filed .......... 2711 


Petitions for new trial filed . . . . . . . . . . . . . . . 6 


Cross-petitions for grant filed ......... _.._.__4 


TOTAL ............................... 2721 


TERMINATIONS (PETITION DOCKET) 


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


Petitions for grant denied . _ .. _........... 2262 


Petitions for grant granted ......... _ . . . . . 267 


Petitions for grant remanded ..... _. . . . . . . 21 


Petitions for grant withdrawn _..... _ . . . . . 17 


Other .. _.. _. . . . . . . . . . . . . . . . . . . . . . . . . . 5 


TOTAL ................... _........... 2582 


PENDING (PETITION DOCKET) 


Petition briefs pending ... _.. _. . . . . . . . . . . 324 


Staff attorney action pending . _ . . . . . . . . . . . 14 7 


Court action pending ........ _......... -~ 

TOTAL ............................... 702 


Signed .

Percuria

Mem/ord

TOTAL 

3In 20 percent of these cases, the Court specified issues which were not rai
PENDING (MISCELLANEOUS DOCKET) 

Briefs pending . . . . . . . . . . . . . . . . . . . . . . . . . 0 

Action by Writs Counsel pending . . . . . . . . . . 0 

Show cause action by Court pending . . . . . . . 0 

Show cause response pending . . . . . . . . . . . . . 0 

Other final action pending .............._.__3 


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


RECONSIDERATIONS &REHEARINGS 

CATEGORY FILINGS PENDING DISPOSIT

Granted 

Master Docket ............ 9 2 0 

Petition Docket ........... 9 1 4 

Miscellaneous Docket ...... 0 0 0 

TOTAL ................. 18 3 4 

MOTIONS ACTIVITY 

BEGIN END 

CATEGORY PENDING FILINGS PENDING 

Reject

11 

6 

1 

18 

DISPO

Granted Rej

All motions ........... . 31 842 20 740 1

24 
draft changes to the Manual for Courts-Martial an

Code of Military Justice. 

MILITARY JUSTICE STATISTICS AND U.S. ARMY JUDIC

During fiscal year 1986, the court-martial rates show 

decrease in the number of courts-martial. The total n

sons tried by all types of courts-martial in fiscal year 19

than for 1985. This overall decrease reflects primarily 

special courts-martial (i.e., a 4% decrease in special 

empowered to adjudge a bad-conduct discharge, a 25% 

BCD special courts-martial). There was a 1 % increase 

of general courts-martial, and a 5% increase in the n

mary courts-martial. The overall conviction rate for fi

was 93.4%, which represents a slight increase from the 

tion rate for the previous fiscal year. Although the 

martial rate decreased, the U.S. Army Court of Milita

38 more cases referred for its review and had a 10% i

number of cases reviewed (from 2401 to 2631) during fi

STATISTICAL SUMMARY: FISCAL YEAR 198

(See Appendix A, pp. 36-37) 

U.S. ARMY LEGAL SERVICES AGENCY 

The U.S. Army Legal Service Agency includes th

Judiciary, the Government Appellate Division, the D

late Division, the Trial Defense Service, the Trial Coun

Program, the Contract Appeals Division, the Regulato

Patents, Copyrights and Trademarks Division, and th
The U.S. Army Judiciary consists of the U.S. A

Military Review, the Clerk of Court, the Examina

Trials Division, and the Trial Judiciary. 

U.S. ARMY TRIAL DEFENSE SERVICE 

During fiscal year 1986 the United States Army Tria

ice (USATDS) continued to provide effective defense c

for soldier-clientrs. USATDS counsel represented 

2,030 clients at Article 32 proceedings, 1,429 clie

courts-martial, and 1,515 clients at special courts-m

tion, USATDS counsel advised an estimated 62,165 cl

nonjudicial punishment, and 40,444 clients facing 

separation. 

USATDS continued to develop its deployment capa

were sent to the Sinai in support of the Multi-National 

tion, counsel actively participated in various com

exercises. 

TRIAL COUNSEL ASSISTANCE PROGRAM 

During fiscal year 1986, the U.S. Army Trial Coun

Program served as a source of information, advice, a

U.S. Army prosecutors world-wide. The program respo

1,300 request for assistance, participated in three ma

secutions, and provided written guidance on all areas o

advocacy. The program conducted training seminars 

in the United States, Federal Republic of Germany, 

deskbook designated to provide Army prosecutors 

guidelines as to trial advocacy and evidentiary matters 

26 
monitoring the administration of military justice, incl

of on-going major projects (e.g., military corrections, A

program, professional responsibility of attorneys, and 

tion over reservists); rendering opinions for the Arm

ing various aspects of criminal cases for action 

Secretariat and Staff; developing proposed ethical r

practicing under the disciplinary authority of The 

General; and responding to White House, Congressio

quiries relating to military justice. 

CHANGE OF MILITARY JUSTICE REGULAT

Army Regulation 27-10, Military Justice, was 

October 1, 1986. Revised provisions: provide addit

filing guidance; require an additional copy of a recor

Army Clemency Board purposes; implement Army C

Review Rule 21d., time for government appeals; c

Forces Agreement confinement review procedure

witness liaisons to arrange witness interviews, wit

arranging civilian travel overseas; incorporate Ar

350-212, Military Justice Training, and 27-14, Co

Article 138, UCMJ. Revisions are also planned 

October 1987, to keep the regulation current with c

policies, the Manual for Courts-Martial, 1984, ap

legislation and judicial decisions. 

JOINT-SERVICE COMMITTEE ON MILITARY J

The Judge Advocates General and General Couns

ment of Transportation established the Joint-Servic

Military Justice on August 17, 1972. The Army, N
faith and inevitable discovery exceptions to the excl

Another amendment required unanimous findings of gu

cases before the court members were allowed to cons

penalty. Other amendments are designed to correct dra

cies in the 1984 Manual and to revise unnecessary pro

1984 Manual. 

The second annual review of the Manual was com

1986. Most of the amendments to the Manual recomm

review made technical corrections, but the amendmen

provisions allowing clinical psychologists to be mem

boards, a correction to the law of self-defense, and a pro

evidence of refusal of a lawful order to produce body 

testing to be used as substantive evidence. The Execu

not been forwarded by the end of FY 86 for signat

because of pending, related amendments to the Uni

Military Justice <UCMJ). UCMJ amendments pending 

FY 86, concerned the defense of insanity, jurisdiction o

on inactive-duty training, the statute of limitations, or

enlisted court members, and simplification of post-tria

ing. The legislation was awaiting enactment at the en

year. 

FOREIGN CRIMINAL JURISDICTION 

As executive agent for the Department of Defense, th

of Army, through International Affairs Division, Office 

Advocate General, maintains information concerning t

foreign criminal jurisdiction over U.S. personnel. 

During the reporting period, December 1, 1984, throu

30, 1985, a total of 143,773 United States personnel, 

civilian, were charged with offenses subject to the prima

jurisdiction of foreign tribunals. A total of 130,915 of 

28 
Foreign authorities reserved for their disposition a t

offenses allegedly committed by military personne

109,582 of these offenses were relatively minor. 109,0

99.5 percent, involved traffic violations. 

A total of 12,858 civilian employees and dependents 

with offenses subject to foreign jurisdiction. As civilia

ject to trial by courts-martial in peacetime, the United 

effective jurisdiction over these offenses. Noneth

authorities released 231 of these offenses, or 1.8 perce

to United States military authorities for administr

appropriate disposition. 

There were 117,036 final results of trial (i.e., final 

final convictions). Of this number, 387, or .28 perce

results, were acquittals. The vast majority of United St

who were convicted - 116,478 (i.e., 96.7 percent) - r

sentence to fine or reprimand. The remainder of the 

trial consisted of 126 suspended sentences to confinem

suspended sentences to confinement. 

LITIGATION 

On 14 Nov, a three judge panel of the Ninth United 

Court of Appeals reversed a district court's grant of s

ment in Atkinson v. United States, a case in which a 

sued under the Federal Tort Claims Act for alleged me

tice incident to pre-natal care received at Tripler 

Center. In its opinion, the court held that the underlyi

Feres is maintenance of military discipline and that th

baby by a female soldier involves discipline "only in 

sense." The court further ruled that the circumstanc

simply "do not involve the sort of close military judgm

the Feres doctrine was designed to insulate from jud

Appeal of this decision to the Supreme Court is expec
States v. 

ebevoise, N. 8558 (Sp. 8, 986), __

1986), and United States v. Mariea, 795 F.2d 1094 (1st C

concern last year was that if service member drunk 

were not heard by U.S. Magistrates, then there would 

in the number of drunk driving cases processed a

punishments of courts-martial. This is no longer a con

EDUCATION AND TRAINING 

During fiscal year 1986, The Judge Advocate Gen

located in Charlottesville, Virginia, provided legal 

lawyers of the military services and other federal agenc

resident courses were conducted with 2,811 students 

Courses were attended by 1,786 Army, 55 Navy, 71M

Force, 17 Coast Guard, 158 Army Reserve, 76 Army N

481 civilian, and 22 foreign students. Three Basic Clas

109th, and llOth were conducted. A total of 281 Army 

graduated from Basic Courses. 

The 34th Graduate Course, with an enrollment o

graduated on 16 May 1986. In addition to 57 Army ju

the class consisted of five Marines, one Navy, and th

ficers. The 35th Graduate Course began on 1 August 

Army, five Marines, one Navy, and four foreign office

During fiscal year 1986, the School continued to p

officers with legal orientations prior to their assumptio

Twelve general officers attended General Officer Leg

Courses, and 280 battalion and brigade command desig

one of five resident Senior Officer Legal Orientation C

tionally, instructors from the School participated in 

Command Courses conducted at Fort Leavenworth, K

talion and brigade command designees. 

The Criminal Law Division sponsored three reside

legal education courses in fiscal year 1986. In January 

30 
The International Law Division sponsored two one we

the Law of War and a one week Judge Advocate and M

tions Seminar, which concentrated on operational law. 

the Division provided instructor support for a one week 

Federal Republic of Germany on Law of War sponsored 

Europe. All courses were designed for and attended by 

vocates and operational staff officers. In keeping wit

tionalization of interational law", the major focus of th

on practical, hands-on training, rather than on lectur

struction was presented to both active and reserve for

that they were prepared to provide timely, accurate le

military operations. 

Instruction provided by the Contract Law Division i

meet the training needs of all attorneys involved i

acquistion process, both the novice and the experienced 

Courses address contract law as practiced at military 

and at commands devoted to research, development and 

weapons and major end items. In fiscal year 1986, the 

Division sponsored eight continuing legal education 

cluding the two-week Contract Attorneys Course whic

four times, with eighty four students in each course. 

also presented two Fiscal Law Courses, the Contra

Workshop, and the annual week-long Government C

Symposium, attended by 180 attorneys from throughou

ment of Defense. For the first time, the Division p

Advanced Acquisition Course, a two-week course provi

instruction in weapon system and major end item acqu

tionally, personnel of the Contract Law Division prese

law instruction at Reserve Component Technical Traini

continuing legal education course in Europe to militar

personnel stationed there. Fiscal law courses were pres

other than Charlottesville for a number of Army co

activities, including the Corps of Engineers and the U.S
p

The Administrative and Civil Law Division conducte

nuing legal education courses, including two presen

Legal Assistance Course, the Federal Labor Relation

Administrative Law for Military Installations Course

Office Management Course. In addition, instructors pre

at the Tax and Legal Assistance Conferences in Europe

tor presented a week of instruction at the Noncommis

Advanced Course at Fort Benjamin Harrison, Indiana

instructor instructed installation commanders during s

Army Installation Management Courses at Fort Lee. 

The Legal Assistance Branch of the Adminstrative 

Division produced the first edition of a new publicatio

tive Law Series, which comprises a set of 31 consume

handouts ready for duplication and use in local preve

grams. These materials can also serve as the nucleus 

command newspapers. Additionally, the All States 

Divorce Guide, Garnishment Guide, and Consumer La

revised, updated, and substantially expanded to inclu

resources materials. A third consumer protection video

ing issues unde the Fair Credit Billing Act, was produ

special short course was coordinated and conducted a

legal assistance attorneys and survival assistance offi

involved with the victims of the Gander aircraft disas

The Judge Advocate Guard amd Reserve Affairs Dep

sored two resident courses for Reserve Component Jud

in fiscal year 1986. Approximately 214 Army Reserve 

Guard judge advocates attended Triennial Training in 

between 16 and 27 June 1986. Phase II of the Judge Ad

Advanced Course was attended by 140 students dur

period. The attendance by Army National Guards at Tr

ing reflects the Guard's continued strong participation 

grams. The 1036th U.S. Army Reserve Forces School in 

sylvania, provided administrative support for both 

32 
MAJOR PROJECTS 

On April 15, 1986, the Third Waldemar A. Solf Lec

tional Law was presented by Ambassador Louis G. Fie

tation, "Contemporary Terrorism and the Rule of L

received. 

The Tenth Charles L. Decker Lecture was given on 

by Mr. Robert M. O'Neil, President ofthe University o

analyzed the case of Goldman v. Weinberger and its 

On March 27, 1986, the 15th Annual Kenneth J. Ho

Criminal Law was presented by Professor James E. B

Wake Forest University School of Law (now Dean of th

Puget Sound School of Law). The lecture, entitled "A C

System Divided Against Itself," was particularly we

was published in the Summer 1986 Military Law Rev

Solf and Decker Lectures. 

The Third Gilbert A. Cuneo Lecture in Contract Law 

by Eleanor R. Spector, Deputy Assistant Secretary of 

curement, on January 13, 1986. 

The School hosted the 1985 Judge Advocate Gener

and Annual Continuing Legal Education Program 

2-5, 1985. Over 160 senior judge advocates from posts 

world conferred on areas ofinterest and discussed recen

in all areas of military law. Guest speakers included 

well R. Thurman, Vice Chiefof Staff ofthe Army; LTG

Ulmer; and Mr. Louis Tice, Pacific Institute. 

New editions of DA Pam 27-153, Legal Services-Co

Pam 27-174, Legal Services-Jurisdiction; FM 27-14, 

Soldiers; and TC 27-2, Military Justice-Enlisted P

ing, for which the School is responsible, were publish

year 1986. The revisions of AR 27-5, Legal Servi

Library Service; AR 10-73, Organization and Functi

Advocate General's School, U.S. Army; and FM 27-1, 
, g, ppy 

be fielded soon. The base offices for the Chief Military 

Chief Defense Counsel are also on this document. Th

TAACOM staffjudge advocate office has been submit

by TRADOC and DA. The Combat Developments Offi

a new Table of Organization and Equipment which, i

convert Table of Distribution and Allowance defen

military judge positions dedicated to supporting the 

Table of Organization and Equipment assets. New Tab

tion and Equipment designs based upon Army ofExce

are being prepared for Judge Advocate General Ser

tions in the Reserve Component force. Combat D

actively involved in acquiring microcomputers 

communications equipment for all legal assets in th

structure. 

The Judge Advocate Guard and Reserve Affairs D

lished a new edition of A Career in the Reserve Comp

PERSONNEL, PLANS AND POLICIES 

With the inclusion of law students participating 

Legal Education Program, the strength of the Ju

General's Corps at the end of fiscal year 1986 was 182

minority groups were 96 blacks, 29 Hispanics, 18 As

Americans, and 201 women. The fiscal year 1986 end 

pares with an end strength of 1824 in fiscal year 1985

year 1984, and 1821 in fiscal year 1983. The grade dis

Corps at the end of the fiscal year was 6 general office

231 lieutenant colonels, 372 majors, 1047 captain

lieutenants. There were 43 officers (38 captains 

lieutenants) participating in the Funded Legal Educ

There were also 7 4 warrant officers. 

34 
U.S. Army Command & General StaffCollege. . . . . 

Armed Forces StaffCollege . . . . . . . . . . . . . . . . . . . . 

The Judge Advocate Officer Graduate Course . . . . . 

During fiscal year 1986 seven officers completed f

for LL.M. degrees in specialized fields oflaw. As a res

Officer Personnel Management Act (DOPMA), newly 

advocates accessed for the fiscal year were comm

lieutenants. The Judge Advocate General's Corps i

petitive category, and selects and promotes its office

Advocate General's Corps grade vacancies as they 

Hugh R. Overholt 

Major General, USA 

The Judge Advocate General 
----

OVERALi.. RATE OF INCREASE ()/DECREASE() OVER J,.AST REPORT 

PART 2 ·DISCHARGES APPROVED 

GENERAL COURTS-'lllAATIAL !CA LEVEL.) 

NUMBER OF O:~HONORABLE DISCHARGES 

NUM6E:.R OF BAD CONDUCT DISCHARGES 

SPECIAL COURTS MART!AL (SA LEVEL) 

NUMBER OF BAD CONOiJCT DISCHARGES ~= ..-.·.··· ----. ,. ·~· ····-~~~.-····· -~-~=--~·

FOR REVIEW UNDER ~R71CLE 66 ·GENERAL COURTS-MARTIAL 

FOR REVIEW UNDER ARTICLE 66 - BCD SPECIAL COURTS-MARTIAL 

F0:": ,,..., /' .._,.!'\' '\""H")N l '"'!)'!A AAT!r'"t c ,ir;:9. (;CfVF. RAI t""OtJRT~-~itARTlh.t. 

====­ ~·~- -· 

PART 4 ·WORKLOAD OF THE U.S. ARMY 

TOTAL ON HAND 8 E:i INNI NG_;;Oc_F..;P.::Ec;Rc;IO:.;O:__-+...._.=~==== 

GENERAL COUR";S-'VIAi::tTIAL NA 

BCD SPEC•AL COURTS·MARTIAL NA 

REFERRED FOR REVIEW 

GENERAL COURTS-MARTIAL NA 

BCD SPECIAL COL:RTS-~ARTIAL NA 

TOTAL CASES i::tEVtEWE::) 

GENERAL COURTS-M.4.'-'R'-'T-"IA-"L=-----+---NA_____ 

BCD SPECIAL COURIS-MARTIAL NA 

GENERAL COURTS·~1ARTIAL 

BCD SPECIAL COURTS·MARTIAL NA 

RATE OF INCREASE !+)/DECREASE l-) OVER NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD +10% 

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE u. s. ARMY CO

REVIEW 

;~RM::N~AGE I. !~i l::}f• tt?••••tt•<······•••???tt······••i••

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 

PERCENTAGE OF INCREASE {+)/DECREASE C-1 OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF TOTAL PETITIONS GRANTED 

PERCENTAGE OF INCREASE {+)!DECREASE{-) OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

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

LAST REPORTING PERIOD 

PAGE I OF2 

N'.11E A. Does not include 4 cases in which revi""' was waived. 

B. Includes 9 Miscellaneous Dxket cases of which 2 were QJvernnent appe

c. Does not include 7 cases withdrawn by the accused. Does not include 

36 
TOTAL PENDING AT ENO OF PERIOD 

PART 8 - ORGANIZATION OF COURT 

PART 9 - COMPLAINTS UNDER ARTICLE 138 

[:::::;:;::::::,:,.,::- -:-· ...·.·.

NUMBER OF COMPLAINTS I Lf( 

PART 10 - STRENGTH 

AVERA{';E ACTIVE DUTY STRENGTH 783,343 I~:}::::::;:·:;:.:.·-·.·.·· 

PART 11 - NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 11,750 

RATE PER 1,000 144 

RATE OF INCREASE (+)/DECREASE 1-1 OVER PREVIOUS PERIOD -10 

PAGE20F2 

NJIE D. Includes 1 application returned for curative action by field author

·filed oot of time with DO good cause shown. 

for 


FISCAL YEAR 1986 


SUPERVISION OF THE ADMINISTRATION OF MILIT

In compliance with the requirement of Article 6(a), 

Military Justice, the Judge Advocate General and t

Advocate General continued to visit commands w

States, Europe, and the Far East in furtherance of t

the administration of military justice. 

ABA OUTSTANDING YOUNG MILITARY LAWYER 

Lieutenant Patricia Battin-Pfeiffer, Judge Adv

Corps (JAGC), U.S. Naval Reserve, and Captain T

Marine Corps, were the recipients of the 1986 A

Young Military Lawyer award. 

ADVANCED EDUCATION 

During the fiscal year, 14 Navy JAGC officer

degrees from various law schools, one JAGC officer a

course at The Judge Advocate General's School, U.S

tesville, Virginia, and three JAGC officers attended 

College, Newport, Rhode Island, as part of the Nav

education program. 
tried (including summary court-martial) in the Naval S

fiscal year 1986. 

ARTICLE 69(a), UCMJ, EXAMINATIONS 

Ninety-five general courts-martial, which were not sta

ble for automatic review by the Navy-Marine Corps Cou

Review were examined in the Office of the Judge Advoc

fiscal year 1986. Of those, four required corrective 

Judge Advocate General. 

ARTICLE 69(b), UCMJ, APPLICATIONS 

Ninety-one applications were reviewed in fiscal year 1

to Article 69(b), Uniform Code of Military Justice, und

Judge Advocate General may vacate or modify the findin

of courts-martial which have become final in the sense 

but have not been reviewed by the Navy-Marine Corps 

tary Review. Eighty-one applications were denied o

while relief was granted, in whole or in part, in ten ca

ARTICLE 73, UCMJ, PETITIONS 

In fiscal year 1986, nine petitions for new trial were 

the Office of the Judge Advocate General. Eight petition

and one was granted. 

40 
Supreme Court Practice: With passage of the Militar

1983, the Division has submitted seven petitions for w

to the United States Supreme Court and one amicus 

support of a granted petition in the U.S. Coast Guard 

v. United States. 

Trial Defense Services: This Division has establish

section which provides substantive and procedural as

defense counsel in the field. Approximataly 75 calls 

received. Additionally, the Division occasionally diss

mation from a defense perspective on significant issu

well as on practice and procedure, to trial defense co

APPELLATE GOVERNMENT DIVISION 

The Appellate Government Division filed 1207 plea

Navy-Marine Corps Court of Military Review and th

Military Appeals. This excludes cases which were su

courts without specific assignments of error. 

The Trial Counsel Assistance Program (TCAP) is a 

oped within the Appellate Government Division, Nav

Appellate Review Activity, to provide a central point 

and focus to assist trial counsel in the effective prosec

martial. Four appellate counsel have been detailed to 

program which provides assistance through field call

and digests. Field calls totalled 338 for the year, an av

month. 

Presentations 

a. April 86 - Director, Appellate Government Di

attorneys participated in seminar for trial counsel at 

the Army TCAP team. 
ypy p

for 1,070 general courts-martial during fiscal year 1

1,070) of these general courts-martial were tried by 

alone. 

There were 6,675 special courts-martial conducte

year 1986, an increase of 33 special courts-martial 

cases during fiscal year 1985. In fiscal year 1986, 92% 

of these special courts-martial were tried by military 

Military Judges Attending Continuing Legal Education/Semin

Meatings/Conferences 

a. East Coast Military Judges' Meeting of Those 

Navy-Marine Corps Trial Judiciary 

- Fleet Combat Training Center, Atlanti

Virginia Beach, VA 

- 2-4 October 1985 

- 33 active-duty Navy and Marine Corps judg

duty Reserve Navy and Marine Corps judg

b. West Coast Military Judges' Meeting of Those 

Navy-Marine Corps Trial Judiciary 

- Naval Training Center, San Diego, CA 

- 9-22 October 1985 

- 24 active-duty Navy and Marine Corps jud

duty Reserve Navy and Marine Corps judg

c. 	 Twelfth Interservice Military Judges' Seminar 


- Maxwell Air Force Base, Montgomery, Ala

- 30 March - 4 April 1986 


- 4 active-duty Navy and Marine Corps judg

d. 	Various Courses of Instruction at the National J

- National Judicial College, Reno, Nevada 

- 10 active-duty Marine Corps judges. 

e. 	 Trial Advocacy Instructor Clinic 


- Naval Justice School, Newport, RI 


42 
- 28 July - 14 August 1986 

- 12 active-duty Navy and Marine Corps Ju

duty Reserve Navy judges. 

Visits by the Judiciary 

The Chief Judge presented administrative briefin

the Military Judges' Course at both Charlottesville 

The Circuit Military Judge, Peidmont Judicia

Lejeune, North Carolina, paid a working visit and p

instruction of students at the Military Judges' C

Justice School. 

Generally 

Due to a projected reduction in workload, the j

Philadelphia, Memphis, Bremerton, and Quantico w

During fiscal year 1986, total in-court hours fo

26,521 hours, 34 hours less than during fiscal ye

hours). An increase in travel hours occurred in 

(5,993) over fiscal year 1985 (5,134) hours. 

NAVAL LEGAL SERVICE COMMAND 

Naval Legal Service Command (NAVLEGSVCCO

naval legal service offices and 20 naval legal serv

ments, located in areas of naval concentration throu

NAVLEGSVCCOM also includes the Naval Justice 

Newport, Rhode Island, and the Office of Legal Co

the Naval Academy, Annapolis, Maryland. The tot

thorization for NAVLEGSVCCOM includes 421 offic

and 254 civilian employees; Navy judge advoca

NAVLEGSVCCOM comprise about 42% of the Na

advocate strength. 
the future, the planned Navy Legal Affairs World

System will refine and expand the automation of th

assistance, budgeting, and office administration fu

NAVLEGSVCCOM, enhancing its ability to perfo

Also, eight test sites will receive state of the art co

transcription equipment during the next year, which 

post-trial processing of courts-martial. Finally, greate

of available automated legal research programs, such 

The NAVLEGSVCCOM Military Construction P

targets the need for major construction in support o

naval legal service offices, will mark its first groundbr

fiscal year 1987. The $1.3 million dollar facility in 

nessee, sponsored by Chief of Naval Operations (OP-

first new NAVLEGSVCCOM facility designed and 

ground up as a dedicated legal service building. It wil

tiquated facility which could not be renovated. 

NAVAL JUSTICE SCHOOL 

During fiscal year 1986, the Naval Justice School pr

tion to 8,847 students worldwide (1,034 in resident cou

length from 3 days to 9 weeks). Additionally, the scho

dent course in trial advocacy and published its inaugu

Naval Law Review (formerly the JAG Journal), the o

nal of the Department of the Navy. Other noteworthy 

included installation of a state-of-the-art audiovisual 

(used primarily to enhance trial advocacy training) an

basic computer training for all Navy-Marine Corps law

A review of the school's courses follows: 

Law ofNaval Warfare Workshop. Offered once a year

course trains judge advocates responsible for advisin

on international law and its impact on plans and o

44 
g gy p

and other management skills required of mid-lev

naval legal service offices. Included are 61 hours of c

tion and 13 hours of workshops and seminars. Eigh

E-9 legalmen attended this course. 

Lawyer Course. The Naval Justice School conduct

the nine-week lawyer course during fiscal year 1

which provides basic training in military justice and 

trative and civil law to incoming Navy and Marine 

consists of 164 hours of classroom instruction and 

tical exercises, including two moot courts and fo

designed to enhance trial advocacy skills. The cour

by 151 Navy and 72 Marine Corps lawyers. 

Legal Officer Course. During fiscal year 1986, the 

sessions ofthis five-week course. The legal officer sy

for the nonlawyer junior officer or senior Navy lega

about to assume legal duties with a ship, aircraft squ

tion, or other military unit with no military lawyer a

in the course are 126 hours of classroom instruction 

practical exercises and seminars. Last year's atten

238 Navy officers, 17 Navy legalmen, 45 Marine Co

Coast Guard officers, and two civilian employees of 

of the Navy. 

Senior Officer Course. This one-week course, spons

of Naval Operations, prepares commanding of

officers, and officers in charge to handle appropriat

responsibilities. Six sessions of the course were h

Rhode Island, with 186 students attending. An ad

ings of the course were held at the following wor

Pensacola, Jacksonville and Mayport, Florida; C

Carolina; Norfolk, Virginia; Whidbey Island, Washi

cisco, California; San Diego, California; Camp Pend

Rota, Spain; Pearl Harbor, Hawaii; Subic Bay, Philip

Japan; Parris Island, South Carolina, Camp Lejeune
Guard, and 5 Air Force judge advocates completed th

Senior Trial Advocacy Course. In March 1986, the sc

first one-week Senior Trial Advocacy Course to prov

trial advocacy techniques to judge advocates returni

justice billets after one or two tours of duty outside 

The course utilized the highly successful method 

developed by the National Institute of Trial Advocac

judge advocates from the Navy and twelve from the 

attended this course, which we anticipate will be offe

Trial Advocacy Instructor Clinic. The Naval Justi

ducted its first trial advocacy instructor clinic in Se

This three-day course prepared experienced trial pract

duct trial advocacy training programs in the field. E

were trained in the NITA teaching method and have s

several highly successful training programs at nava

offices located at Norfolk, Virginia; Jacksonville, Flor

and San Francisco, California. Ifis anticipated that fu

clinics will be conducted annually, and that field train

will be conducted regularly throughout the Naval 

Command. 

Legalman Course. This nine-week course, offered t

fiscal year 1986, provides instruction in military law 

court reporting to Navy enlisted personnel selected fo

the legalman rating. Included are 162 hours of lecture

practice transcription, and 52 hours of seminars and 

exercises. As in past years, the Army continues to 

Justice School's legalman course to train its court repo

year 1986, 85 Navy and 22 Army students completed 

Legal Clerk Course. This two-week course is desig

members of the Navy's yeoman rating to process rout

ters at small or isolated commands. During fiscal y

school offered five sessions of this course, and it is antic

future years, the course will be offered three times each 

46 
Naval Justice School presented more than 600 hours 

on court-martial procedures, search and seizure, co

admissions, nonjudicial punishment, investigations, a

separations, and the law of armed conflict to 6,31

selected Reserve units and students at the Surface W

School, Chaplains School, Officer Indoctrination Schoo

didate School, Senior Enlisted Academy, Naval War C

Science Institute, and Naval Academy Preparato

Newport, Rhode Island. 

Publications. During fiscal year 1986, the Naval Just

tinued its expanded involvement in JAG Corps publica

35 of the Naval Law Review was edited and published 

the staff, as was a compilation of commentaries by fac

on pertinent issues of military law. Additionally

teaching modules were prepared or revised as part o

project to provide complete training packages, consistin

notes, student materials, and visual aids, for presen

Navy and Marine Corps legal offices. These programs 

ject matter from military justice and administrative la

armed conflict. 

MARINE CORPS ACTIVITIES 

During fiscal year 1986, the emphasis on Reserve s

active forces continued to accelerate. The newly cre

Deputy Director for Reserve Affairs is providing the D

Advocate Division with a Reserve colonel to assist and 

planning and execution of all Reserve matters relatin

vocates. Also, the law Mobilization Training Units wer

distinct missions directly supporting commands and 

Marine Corps staff agencies. The most significant of th

sion of the St. Louis Mobilization Training Unit to pro
mand visitations/inspections at all commands at 

counsel were assigned, making recommendations 

changes in facilities, etc. 

d. CDCMARCOR and Regional Defense Counsel 

available as individual military counsel in unusua

e.g. capital cases. 

e. Liaison has been established informally with th

Force defense service organizations and the Navy Ap

Division. 

The Marine Corps, through the auspices of the CDC

tuted trial advocacy training using NITA methods, 

NITA faculty. Training was conducted at both Camp 

Camp Lejeune, with courses approximately one week 

proximately three-month intervals. Participants inc

defense counsel. In the most recent training, participa

Navy judge advocates. 

During Fiscal Year 1986, eight Marine judge adv

year-long service schools, including the Naval W

Marine Corps Command and Staff College, Amph

School, and the U.S. Army JAG School. Four Marine 

received their Master ofLaws degrees from civilian la

Special Education Program. Two hundred and twe

judge advocates received continuing legal education 

military schools through courses funded by Hea

Marine Corps and their parent commands. Fifty-one 

Corps judge advocates served in command or st

assignments. 

In observance of Law Day, the Judge Advocate Divi

mock court-martial and presented it to a local middl

48 
tice and judicial precedent and serves as a forum fo

ideas relating to military justice matters among the 

1986, the Navy representative assumed chairmans

Service Committee. 

The first annual review by the Committee wa

February 1986 by President Reagan, as Executive O

an effective date of 1 March 1986. This change eff

new provisions for espionage, required unanimous 

for capital offenses, and adopted the "inevitable disc

faith" exceptions to the exclusionary rule. 

On 30 January 1986, the Committee completed i

review of the Manual for Courts-Martial, 1984 and 

legislation. Much of the proposed legislation was e

the National Defense Authorization Act of 1987, [Pu

___ Stat. ___, ___(1986)]. Significant chang

ing the burden of proving lack of mental responsibili

revision to the manner in which a request is made fo

nel to serve on a court-martial, extending jurisdict

component personnel for offenses committed while o

during drill periods, and increasing the statute of l

Hugh D. Campbell 

Rear Admiral, USN 

Judge Advocate General ofthe Navy 
NONBCD SPECIAL 

SUMMARY 

?l.?P. 2418 I 260 

~nn 2a1n I 67 

OVERALL RATE OF INCREASE (+)/DECREASE(-) OVER LAST REPORT I 

PART 2 - DISCHARGES APPROVED 

GENERAL COURTS-MARTIAL (CA LEVEL) 321 

'-'~-=~~~-=:-=:"-:-=~~:-=~~:~:~~~~-=~~=~~-=:..-=L-=:-=~~'~~~~:~:~:-=~-=:-=--------+----5-37---

SPECIAL COURTS-MARTIAL (SA LEVEL) 2758 

NUMBER OF BAD CONDUCT DISCHARGES 

PART 3- RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR REVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL l 022 

FOR REVIEW UNDER ARTICLE 66 ·BCD SPECIAL COURTS-MARTIAL 3 2il3 

FOR EXAMINATION UNDER ARTICLE 69 - GENERAL COURTS-MARTIAL 83 

PART 4-WORKLOAD OF THE Navy Marine COURT OF MILITARY 

TOTAL ON HAND BEGINNING OF PERIOD 681 

REFERRED FOR REVIEW 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

RATE OF INCREASE (+)/DECREASE(-) OVER NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD -278 (-

PART 5-APPELLATE COUNSEL REQUESTS BEFORE Navy/Marine 

REVIEW 

NUMBER 3649 1.:,=.:,:.:,:_:_..:_:,:_:,:_:,:._:,:_:_:_,_:,:_:,:.:,:.:,:.:_..:::::::::::::;: {{{) ;:: '{if/ .x:=::

PE RCENTAGE 8 5 % _ })})~ ·:·:-:·:·:·:·:.:·:·:·:·:·:·:·:<·>:·:·:·:·:·:·:·:·:·:·:·:

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

PERCENTAGE OF COMR REVIEWED CASES FORWARDED TO USCMA 

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

PERCENTAGE OF TOTAL PETITIONS GRANTED 

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

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

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

LAST REPORTING PERIOD 

PAGE I OF 2 

50 
PART 8 ·ORGANIZATION OF COURT 

TRIALS BY MILITARY JUDGE ALONE 869 GENERAL COURTS-MARTIAL 


SPECIAL COURTS·MARTIAL 
 5039 

TRIALS ev MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS-MARTIAL 167 

SPECIAL COURTS-MARTIAL 397 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 111 

PART10-STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 786,877 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 

RATE PER 1,000 

RATE OF INCREASE (+)/DECREASE(-) OVER PREVIOUS PERIOD 

PAGE20F2 

Military Justice, The Judge Advocate General, Majo

W. Norris, and Deputy Judge Advocate General, 

Keithe E. Nelson made official staffinspections of fie

the United States and overseas. They also attended 

in various bar association meetings and addressed m

sional and military organizations. 

MILITARY JUSTICE STATISTICS AND 

US AIR FORCE JUDICIARY ACTIVITIES 

During fiscal year (FY) 1986, the Judiciary Directo

ofThe Judge Advocate General processed over 3406 a

military justice. The Directorate has the overall r

supervising the administration of military justice 

United States Air Force, from nonjudicial proceedi

review of courts-martial. Additionally, the Director

responsibility of the Office of The Judge Advocate 

military justice matters which arise in connection 

special projects, studies and inquiries generated b

Headquarters USAF, the Secretaries, Departmen

Army, Navy, and Air Force, members of Congress an

state and civil agencies. Several of the Directorate

discussed below: 

a. The Judiciary Directorate serves as the action 

review of military justice issues in applications subm

Force Board for Correction of Military Records. Form

provided to the Secretary of the Air Force concerning 

b. The Directorate received 794 inquiries in specific 

either formal written replies or telephonic replies to 

officials, including the President and members of Co

c. The Directorate provided a representative to all 

tivities involving military justice. This included th

Committee and support for the Code Committee. 
mental agencies. 

During FY 1986 the system produced approximat

reports on a monthly and quarterly basis. The system 

to answer many individual requests for particular sta

tion. These special requests were received from such 

Senate Armed Services Committee, Air Force Securit

Air Force Military Personnel Center. 

TRIAL JUDICIARY 

The Air Force Trial Judiciary had an average of 31 

duty and five reserve military trial judges, including 

Judge and his assistant, assigned to 11 locations wo

The Trial Judiciary has continued its program of 

docket management and budgeting functions by upgra

programs and initiating electronic mail between th

offices and the headquarters. Further improvements 

and completion of the data communications capabil

for 1987. 

CIRCUIT TRIAL COUNSEL PROGRAM 

The number of assigned circuit trial counsel (CTC) 

during FY 1986. The average number of days TDY pe

was 7. For the third year in a row, the percentage o

secuted by CTC increased from 26% in FY 1983; 29% i

in FY 1985; to 36% in FY 1986. The total number of 

martial tried by CTC increased markedly from 37 4 

percentage of general courts-martial tried by circuit t

from 79% in FY 1985 to 7 4% in FY 1986. This was due 

54 
Total 574 542 497 440 421 

(38%) (31%) (25%) (26%) (29%) 

In support of the urinalysis program, a training wor

ducted to continue to insure that circuit trial counsel fr

are specially trained to prosecute these complex, scie

cases. The successful prosecution of urinalysis cases co

port the important fight against drug abuse in the A

APPELLATE GOVERNMENT COUNSEL 

Direct U.S. Supreme Court review of the decisions of 

of Military Appeals dramatically impacted the Air For

During the year, ten petitions were filed on behal

members. By way of comparison, during FY 1985, only 

petition was filed. In addition, pleadings and positi

three sister service Supreme Court cases were reviewe

ing the year, up from five sister service petitions revi

before. One 1986 sister service petition, United Sta

(Coast Guard), was granted review by the Court; JAJG 

tive support in developing the government's final b

Supreme Court in that case. Under Article 62, U.C.M

ferent cases were evaluated for filing appeals from adv

military trial judges. One of those cases was formally 

appellate courts on behalf of the government. 

AREA DEFENSE COUNSEL PROGRAM 

Additional area defense counsel arrived at George A

Holloman AFB, New Mexico; Florennes AB, Belgium

AFB, Italy, with personnel scheduled next fiscal year 

tional authorized position at Minot AFB, North Dakota
whose sentences authorized review by the United 

Court of Military Review (AFCMR) and the United 

Military Appeals (USCMA). The workload was as fo

AFC MR 

ERRORS FILED . . . . . . . . . . . . . . . . . . . . . . . . . 

ORAL ARGUMENTS..................... 

OTHER MOTIONS. . . . . . . . . . . . . . . . . . . . . . . 

USC MA 

SUPPLEMENTS TO PETITIONS . . . . . . . . . . . 

BRIEFS IN SUPPORT . . . . . . . . . . . . . . . . . . . . 

GRANT BRIEFS. . . . . . . . . . . . . . . . . . . . . . . . . 

ORAL ARGUMENTS. . . . . . . . . . . . . . . . . . . . . 

OTHER MOTIONS/PETITIONS . . . . . . . . . . . . 

Counsel also filed 7 Petitions for Certiorari at th

Court. None were granted. 

CONFINEMENT FACILITIES 

Last available figures during the fiscal year showe

personnel were in confinement, 46 pretrial and 78

figure 835 represents the highest number in confinem

as far back as the Vietnam War. In addition, the late

that 147 were on parole and another 93 in excess lea

Considerable pressure was being placed on our cen

facilities. Since the end of the last fiscal year, the A

an additional 20 firm bed spaces at the United Sta

Barracks, bringing our total there to 220, with acces

56 
RTDR program in FY 1986. 

PREVENTATIVE LAW AND LEGAL ASSISTANCE PR

The Preventative Law and Legal Aid Group (JACA

cant improvements in the organization and stan

preventative law resources within all Air Force legal 

creation of the Uniform Notebook System. The notebo

store material in eight categories and will be indexed s

tion can be retrieved easily. Within the eight categorie

two notebooks, one with individual articles and the se

to hold self-contained guides. Notebooks have been esta

of the eight categories. 

Eight Shortbursts Newsletters were mailed to all 

mand legal offices. Five were general information let

focused entirely on one subject. The October/Novemb

Newsletter was devoted entirely to income taxes wi

phasis on the Tax Reform Act of 1986. 

The staff of the Preventative Law and Legal Aid Gr

and taught a joint service income tax training cours

bases. A representative from JACA taught attorneys a

visors at Yokota, Japan and Seoul, Korea. In addition t

courses, JACA ordered federal income tax forms for all 

and distributed them worldwide. Again in 1986, JACA 

distributed to all the military services the All State

Guide, a summary ofthe income tax laws of each of the 

prehensive guide was prepared and distributed to all A

offices on how to plan and conduct a comprehensive 

program. 

Legal assistance services were provided to over 4

worldwide on 1.1 million matters during the calendar y

top categories continued to be wills and estates. dome
ppp

lawyers, both military and civilian, as an extremely 

munications forum that promotes crossfeed and a 

Department. 

EDUCATION AND TRAINING 

The Judge Advocate General's Department provide

continuing legal education (CLE) opportunities to it

well as its sister services, during FY 86. 

THE AIR FORCE JUDGE ADVOCATE GENERAL S

Resident Courses 

The Air Force Judge Advocate General School, L

Management Development Center, Maxwell AFB, 

ducted the following courses affecting military justic

a. Advance Trial Advocacy Course -This 1-week 

training in advanced advocacy skills to judge advocate

ing as or selected for circuit trial or defense counsel. T

advocates attended this course. 

b. Judge Advocate Staff Officer Course - A course p

weeks of instruction on the basics of military law. T

attended by 129 judge advocates. 

c. Reserve Forces Judge Advocate Course -A 2-wee

provides Air Force Reserve personnel and National G

up-to-date information on recent developments in mi

course was offered twice in FY 1986 and was attended 

ists and Air National Guardsmen. 

d. Staff Judge Advocate Course - This 2-week c

recently assigned staff judge advocates with both a r

58 
justice were offered: 

Trial Techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

International Law-Conduct of Armed Conflict . . . . . . . . . . . . . . . . . 

Supreme Court Trends in Criminal Law . . . . . . . . . . . . . . . . . . . . . . . 

Appellate Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Impeachment under the Military Rules of Evidence . . . . . . . . . . . . . 

Character evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Advanced Advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Advanced Trial Techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Search and Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Government Lawyer and Professional Responsibility . . . . . . . . . . . . 

g. Aerospace Operational Law. This course p

advocates with training in the domestic and intern

associated with planning and execution of peacetim

military operations. 51 judge advocates attended. 

Short Courses at Civilian Universities 

Fifteen judge advocates attended courses at the Na

College at the University of Nevada during FY 1986

Masters in Law Program 

During FY 1986, one judge advocate received a 

degree in criminal law. 

U.S. Army JAG School and Naval Justice School Courses 

Four judge advocates attended the military judge'

U.S. Army JAG School, Charlottesville, Virginia. Ju

also attended the Law of War Workshop, Advance

Seminar, and Criminal Trial Advocacy Course, and 

Course at the U.S. Army JAG School. Five judge advo

the military judge's course at the Naval Justice Sc

Rhode Island. 
60 
BCD SPECIAL 368 368 

NON-BCD SPECIAL. 463 415 48 

SUMMAFIY 38 34 4 

OVEFIALL AATE OF INCREASE (+)IOECFIEASE (-)OVER LAST REPORT 

PART 2 ·DISCHARGES APPROVED 

PART 4 ·WORKLOAD OF THE AIR 

TOTAL.ON HANO BEGINNl;'\IG OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL. 

REFERRED FOR REVIEW 

GENERAL. COURTS·MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERICO 

GENERAL COURTS-f..'1A,RTIAL 

BCD SPECIAL COURTS-MARTIAL. 

NUMBEA OF DISHONORABLE OtSCHAFIGES 

NUMBER OF BAD CONDUCT DISCHARGES 

SPECIAL COURTS-MARTIAL (SA LEVEL) 

NUMBER OF BAO CONDUCT OlSCl-t.A.RGES 

148 

267 

334 

PART 3 ·RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR FIEVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL 4 76 

FOR REVIEW UNDER ARTICLE 66 · BCO SPECIAL COURTS-MARTIAL 376 

FOR EXAMlflilATJON UNDER ARTICLE 69 ·GENERAL COURTS-MARTIAL 5 5 

GENERAL COURTS-MARTIAL (CA LEVEL.) 

RATE OF INCREASE (+)/DECREASE C-1 OVER NUMBER OF CASES 

REVIEWED OUFllNG LAST REPORTING PERIOD + 14.6%

PART 5. APPELLATE COUNSEL REQUESTS BEFORE AIR FOR:E CO

REVIEW 

NUMBER 8 2 2 

PERCENTAGE 96 • 4% 

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

PERCENTAGE OF COMA REVIEWED CASES FORWAROEO TO USCMA 451/879 

PERCENTAGE OF INCREASE (•)IOECREASE '-I OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF TOTAL PETITIONS GRANTED 48/451 

PERCENTAGE OF INCREASE f•llDECREA.SE !-l OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF PETtTIONS GRANTED OF TOTAL CASES REVIEWED BY CO'VIR 48 879 

RATE OF INCREASE (+)/DECREASE (-1 OVER THE NUMBER Of CASES REVIEWED DURING 

LAST REPORTING PERtOO 

PA.GE I VF-"~ 
PART 8 ·ORGANIZATION OF COURT 

TRIALS BY MILITARY JUDGE ALONE 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS·MARTIAL 

TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS-MARTIAL 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMBEA OF COMPLAINTS I 25 ( 

216 

85 

292 

446 

PART10-STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 590470 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHEAE NONJUDICIAL PUNISHMENT IMPOSED 21362 RATE PER 1,000 30.10 

RATE OF INCREASE (+)/DECREASE 1-1 OVER PREVIOUS PERIOD 10.2% 

PAGE:!OFZ 

62 
The table below shows the number of court-martial re

and filed at Coast Guard Headquarters during FY

preceding years. 

Fiscal Year 86 85 84 83 

General Courts-Martial 5 5 6 10 

Special Courts-Martial ..... 19 43 33 68 

Summary Courts-Martial ... 50 77 105 128 

Total .................... 74 125 144 206 

COU ATS-MARTIAL 

Attorney counsel were detailed to all special courts

tary judges were detailed to all special courts-martial. F

the presiding judge was the full time general courts

When he was unavailable, military judges with other 

were used for special courts-martial. Control of the d

was centrally exercised by the Chief Trial Judge, an

ments were met in a timely fashion. 

GENERAL COURTS-MARTIAL 

Of the five accuseds tried by general courts-martial t

one was tried by military judge alone. He received 

discharge. Of the four accuseds tried by courts with 

received sentences which included a bad conduct 

received a dishonorable discharge, and one was sentenc

from the U.S. Coast Guard. Twa of the accuseds whos

referred to general courts-martial were nonrated (p

through E-3), one was a petty officer (pay grade E-6), o

petty officer (pay grade E-7), and one was a chief warra
SPECIAL COURTS-MARTIAL 

Eight of the 19 accuseds tried by special courts-m

year were tried by the military judge alone. Three o

tried by members were acquitted of all charges an

Three bad conduct discharges were awarded; two to 

military judge alone, and one to an accused tried 

members. Five of the accuseds whose charges were r

courts-martial were nonrated (pay grades E-1 throug

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

cers (pay grades E-7 and E-8), two were chief warran

was a lieutenant (0-3). 

The following table shows the distribution of the 1

referred to special courts-martial. 

Violation of the UCMJ, Article 

85 and 86 (desertion and UA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

89 (disrespect toward a superior commissioned officer) . . . . . . . . . 

91(willful disobedience or disrespect) . . . . . . . . . . . . . . . . . . . . . . . 

92 (violation oforder or regulation) . . . . . . . . . . . . . . . . . . . . . . . . . 

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

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

disposition of military property ofthe U.S.) . . . . . . . . . . . . . . 

121 (larceny and wrongful appropriation) . . . . . . . . . . . . . . . . . . . . 

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

134 (general) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

l 12(a) (marijuana offenses). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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

Other offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

64 
other sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

The following is a breakdown of sentences awar

courts-martial with members (eight convictions). In tw

convictions, the accuseds pled guilty to all charges and 

Sentence 

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

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

hard labor without confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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

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

forfeiture of pay ($8,552 total) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

other sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

The following indicates the three sentences imposed 

courts-martial in the past three fiscal years. 

Number of Redu

FY Convictions Forfeitures Confinement in g

86 16 10 (63%) 7 (44%) 9 (

85 36 24 (67%) 18 (50%) 28 (

84 32 21 (66%) 18 (56%) 26 (

SUMMARY 

Forty-two percent of the accuseds tried by specia

were tried by military judge alone., Thirty-eight perce

guilty to all charges and specifications. Eighteen 

accuseds tried by special court-martial with member
The Coast Guard has 160 officers designated as 

(judge advocates) serving on active duty. One-hundr

serving in legal billets and 42 are serving in general d

specialists, other than the district legal officer and 

assistants, serving at district offices, perform most t

counsel services. Senior law specialists, most serving 

officers, are used as military judges in special court

required. Seventeen Coast Guard officers are curre

postgraduate studies in law and will be certified as la

the completion of their studies. 

The 11th Coast Guard Basic Law Specialists' Cour

nine regular officers who had just completed law sch

the Coast Guard Reserve Training Center, Yorktown

8 September to 31October1986. There were no direc

attorneys in this year's class. The 8-week course intro

cers to the many duties they will perform as Coast Gu

ists.One-half ofthe course was devoted to military jus

punishment, jurisdiction, professional responsibility a

procedures, trial/defense counsel duties, and the Arti

most frequently litigated were some of the areas cov

dent was given an opportunity to demonstrate re

knowledge and skills in moot courts. All nine studen

for Article 27(b), UCMJ, certification upon completio

CASE PENDING BEFORE THE U.S. SUPREME 

A Coast Guard case, U.S. v. Solorio [Sup. Ct. No

granted certiorari by the U.S. Supreme Court on 16 J

a 1984 amendment to Article 67, Uniform Code of M

authorizing direct appeal to the Supreme Court from 

Military Appeals decisions. Solorio, the first such gr

66 
1987. 

U.S. COAST GUARD COURT OF MILITARY 

During fiscal year 1986, the Court was composed 

military judges assigned by the General Counse

Transportation, in his capacity as Judge Advocate G

Judge and one other judge are civilians. The remai

are Coast Guard commissioned officers. On 11 Se

public installation ceremony was held at U.S. Co

quarters to swear in the most recent addition to th

Carl Josephson, USCG, replaced Captain John B. L

retired on 30 June 1986. The Court is presently cons

Chief Judge Joseph H. Baum 

Judge Alfred F. Bridgman, Jr. 

Judge Frederick F. Burgess, Jr. 

Judge Michael C. Grace 

Judge Carl Josephson 

In addition to the decisional work reflected in 

judges on the Court participated in a number of prof

and conferences during the past year. In October 

hosted a meeting at Coast Guard Headquarters of 

from all the other Courts of Military Review to discu

respect to the Rules of Practice and Procedure for th

November 1985, all the judges from the Court partic

Annual All Services Appellate Military Judges Con

by the U.S. Court of Military Appeals and the Mili

mittee of the Federal Bar Association. In May 19

Annual Homer Ferguson Conference was held with 

Court judges in attendance. During that conference

ofthe Court, along with representatives from the oth
committee. 

ADDITIONAL MILITARY JUSTICE STATISTICS 

Appendix A (pp. 69-70) contains additional basic m

statistics for the reporting period and reflects the increa

the workload in various categories. 

J.E. VORBACH 

Rear Admiral, U.S. Coast Guard 

Chief Counsel 

68 
PART 3- RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR AEVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL 

FOR REVIEW UNDER ARTICLE SS· BCD SPECIAL COURTS-MARTIAL 

FOR EXAMINATION UNDER ARTICLE 89 - GENERAL COURTS-MARTIAL 

PART 4 -WORKLOAD OF THE COAST GUARD 

TOTAL ON HAND BEGINNING OF PERIOD 

GENERAL COURTS-MAPITIAL 

BCD SPECIAL COURTS-MARTIAL 

REFERRED FOR REVIEW 

GENERAL COUPITS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

3 

8 

:-:···:··-:.:-:-:-;·:·:· 

:·:·:·:·:·:·:-::...·. 

5 

4 

4 

 47 OVERALL RATE OF INCREASE (+)/DECREASE I-) OVER LAST REPORT 

PART 2 - DISCHARGES APPROVED 

GENERAL COURTS-MARTIAL CCA LEVEL) 

NUMBER OF DISHONORABLE DISCHARGES 

NUMBER OF BAO CONDUCT DISCHARGES 

SPECIAL COURTS-MARTIAL (SA LEVEL) 

NUMBER OF BAO CONDUCT DISCHARGES 

< 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

RATE OF INCREASE (+)/DECREASE(-) OVER NUMBER OF CASES 

REVIEWED DUA ING LAST REPORTING PERIOD +83%i 

PART 5- APPELLATE COUNSEL REQUESTS BEFORE COAST GUARD C

REVIEW 

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

PEACENTAGE OF COMA REVIEWED C•SES FORWARDED TO USCMA 6112 

PEACENTAGE OF INCREASE (+)/DECREASE 1-) OVER PREVIOUS REPORTING l'EPUOO 

'EACENTAGE OF TOTAL PETITIONS GRANTED 1/4 

PERCENTAGE OF INCFllEASE (+)/DECREASE(-) OVEA l'REVIOUS AEPOATING PEAIOD 

PEACENTAGE OF PETITIONS GAANTEO OF TOTAL CASES AEVIEWEO BY COMA l/12 

RATE OF INCREASE (+)/DECREASE C-) OVER THE NUMBER OF CASES REVIEWED DUPUNG 

LAST REPORTING PERIOD 

PAGEIOF2 
PART 8- ORGANIZATION OF COURT 

TRIALS BY MILITARY JUDGE ALONE 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS-MARTIAL 

TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS-MARTIAL 11 

PART 9 - COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 4 

PART 10 - STRENGTH 


AVERAGE ACTIVE DUTY STRENGTH 36 924 f}::::: :;:::::;:::;:;:::; :::;:::;::::·>:· 

PART 11 - NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 1 693 

RATE PEA 1,000 45.9 RATE OF INCREASE (+)!DECREASE(-) OVER PREVIOUS PERIOD -30% 

.!. PAGE 20F 2 Military judges are assigned to all cases referred to sp

courts-martial. The coast Guard, therefore, considers 

courts-martial potential BCD cases. 

! Included within this total are eight cases referred to 

Article 66, UCMJ review, and one extraordinary writ rece

No Article 62, UCMJ Government Appeals were received th

opposed to one that was received and acted upon in FY 8

reversing the trial judge, U.S. v. Solorio, 21 M.J. 512 

affirmed by the u. s. Court of Military Appeals on Janu

appears at 21 M.J. 251. 

l Inciuded within this total are eleven Article 66, UCMJ 

extraordinary writ acted upon with finality, and one co

martial record remanded for a new convening authority's 

.! The 83% rate of increase over the number of cases review

reporting period has been computed based on the Article 

completed - six in 1985 and eleven in 1986. If ~he tot

reviewed/acted upon are used as a basis, there would be 

over last year, since there were 10 cases in 1985 (three 

writs and one Government Appeal under Article 62, UCMJ, 

six Articl~ 66, UCMJ reviews) as opposed tn 1~ ~·~- 'n 

70