ANNUAL REPORT

of the

CODE COMMITTEE

on

MILITARY JUSTICE

INCLUDING SEPARATE REPORTS

of the

U.S. COURT OF APPEALS FOR THE ARMED FORCES,

THE JUDGE ADVOCATES GENERAL

OF THE U.S. ARMED FORCES,

AND THE CHIEF COUNSEL

OF THE U.S. COAST GUARD

For the Period

October 1, 1996 to September 30, 1997
ANNUAL REPORT

SUBMITTED TO THE

COMMITTEE ON ARMED SERVICES

of the U.S. Senate

and the

COMMITTEE ON NATIONAL SECURITY

of the U.S. House of Representatives

and to the

SECRETARY OF DEFENSE,

SECRETARY OF TRANSPORTATION,

and

SECRETARIES OF THE

ARMY, NAVY, AND AIR FORCE

PURSUANT TO THE

UNIFORM CODE OF MILITARY JUSTICE

For the Period

October 1, 1996 to September 30, 1997
CONTENTS

Section 1: JOINT ANNUAL REPORT OF THE CODE COMMITTEE

Section 2: REPORT OF THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

Section 3: REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY

Section 4: REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

Section 5: REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE

Section 6: REPORT OF THE CHIEF COUNSEL OF THE COAST GUARD
JOINT ANNUAL REPORT OF THE

CODE COMMITTEE PURSUANT TO THE

UNIFORM CODE OF MILITARY JUSTICE

October 1, 1996 to September 30, 1997

The Judges of the United States Court of Appeals for the

Armed Forces; the Judge Advocates General of the Army, Navy,

and Air Force; the Chief Counsel of the Coast Guard; the

Director, Judge Advocate Division, Headquarters, United

States Marine Corps; Eugene R. Fidell, Esquire, and

Professor Fredric I. Lederer, Esquire, Public Members

appointed by the Secretary of Defense, submit their annual

report on the operation of the Uniform Code of Military

Justice pursuant to Article 146, Uniform Code of Military

Justice, 10 USC § 946.

The Code Committee met during fiscal year 1997 to

consider numerous matters pertaining to the administration

of the Uniform Code of Military Justice. This meeting was

open to the public and interested attendees participated in

the proceedings. Code Committee members presented reports

on pending cases and trends in court-martial activity within

their respective Armed Forces. Reports and discussions also

took place concerning various proposals to amend the Uniform

Code of Military Justice and the Manual for Courts-Martial.

The Committee considered a report from an ad hoc study

group that considered the purpose, scope, and function of
2

the Code Committee. As a result of the discussion, two

subcommittees were established: one to coordinate plans and

programs to mark the 50th Anniversary of the Uniform Code of

Military Justice, and a second to study the use of

technology in the administration of military justice. A

report on pending amendments to the Manual for CourtsMartial was presented by a representative of the Joint

Service Committee on Military Justice. Other topics

discussed by the Code Committee included attorney discipline

and digesting military justice cases.

Separate reports of the United States Court of Appeals

for the Armed Forces and the individual Armed Forces address

further items of special interest to the Committee on Armed

Services of the United States Senate and the Committee on

National Security of the United States House of

Representatives, as well as the Secretaries of Defense,

Transportation, Army, Navy, and Air Force.

WALTER T. COX III

Chief Judge

EUGENE R. SULLIVAN

Associate Judge

SUSAN J. CRAWFORD

Associate Judge

H.F. “SPARKY” GIERKE

Associate Judge

ANDREW S. EFFRON

Associate Judge
3

Major General WALTER B. HUFFMAN, USA

The Judge Advocate of General of the Army

Rear Admiral JOHN D. HUTSON, USN

The Judge Advocate of General of the Navy

Major General BRYAN G. HAWLEY, USAF

The Judge Advocate of General of the Air Force

Rear Admiral PAUL M. BLAYNEY, USCG

Chief Counsel, U.S. Coast Guard

Brigadier General THEODORE G. HESS, USMC

Director, Judge Advocate Division

Headquarters, United States Marine Corps

EUGENE R. FIDELL, Esquire

Public Member

Professor FREDRIC I. LEDERER

Public Member
REPORT OF THE

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

October 1, 1996 to September 30, 1997

The Judges of the United States Court of Appeals for the

Armed Forces submit their fiscal year 1997 report on the

administration of the Court and military justice to the

Committee on Armed Services of the United States Senate and

the Committee on National Security of the United States

House of Representatives, and to the Secretaries of Defense,

Transportation, Army, Navy, and Air Force in accordance with

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

BUSINESS OF THE COURT

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

Petition Docket at the end of fiscal year 1997 (235)

reflected a substantial reduction of 38% compared with the

same category at the end of fiscal year 1996. (See Appendix

A.) Part of this reduction resulted from a decline in the

number of petitions filed with the Court during the current

fiscal year, which consisted of a 14% decrease compared with

petition filings during the preceding fiscal year. (See

Appendix J.) However, the number of cases carried over on

the Master Docket increased from 73 cases at the end of

fiscal year 1996 to 291 cases at the end of fiscal year
2

 1997. (See Appendix B.) This increase was primarily

attributable to the large number of petitions granted by the

Court at the end of fiscal year 1997 which involved the same

issue that was granted in United States v. Gorski, 47 MJ 370

(1997). The number of oral arguments and the number of

opinions filed by the Court remained fairly constant in

comparison with these same two categories at the end of

fiscal year 1996. (See Appendices C and D.)1

The average processing time from the date of filing a

petition to the date of a grant also remained fairly

constant in comparison with the prior fiscal year. (See

Appendix E.) However, the processing time from the date of

a grant to the date of oral argument was dramatically

reduced by 24% compared with this average during the prior

fiscal year. (See Appendix F.) Furthermore, there was a

significant decrease of 16% in the average time between oral

argument and the filing of a final opinion, and a major

decrease of 22% in the overall average processing time

between the filing of a petition on the Petition Docket and

the filing of a final opinion on the Master Docket. (See

Appendices G and H.) The average processing time for the

total of all cases filed on the Petition, Master, and

Miscellaneous Dockets which were decided by the

 

1

 Although not part of the business of the Court, it is noted that

during fiscal year 1997 the Court was notified that petitions for writ

of certiorari were filed with the Supreme Court of the United States in

32 Master Docket cases in which the Court issued a final decision.
3

Court reflected a slight increase in this overall category

compared with the prior fiscal year. (See Appendix I.)

The Chief Justice of the United States, acting pursuant

to Article 142(f), Uniform Code of Military Justice, 10 USC

§ 942(f), designated the Honorable Janet Bond Artherton,

United States District Court for the District of

Connecticut, and the Honorable Malcolm J. Howard, United

States District Court for the Eastern District of North

Carolina, to sit with the United States Court of Appeals for

the Armed Forces during fiscal year 1997. Additionally,

Senior Judges William H. Darden and Robinson O. Everett were

recalled and participated in the review and decision of

several cases during the same reporting period.

During fiscal year 1997 the Court admitted 311 attorneys

to practice before its Bar, bringing the cumulative total of

admissions before the Bar of the Court to 30,841.

INTERNET ACCESS TO THE WORK OF THE COURT

In 1997, the Court established an Internet web site to

provide the public with prompt access to the Court’s

opinions, as well as general information about the Court.

The internet address of the web site is:

http://www.armfor.uscourts.gov
4

PUBLIC AWARENESS PROJECT

(Project Outreach)

In furtherance of a practice established in 1987, the

Court scheduled several special sessions and heard oral

arguments in selected cases outside its permanent Courthouse

in Washington, D.C. This practice, known as "Project

Outreach", was developed as part of a public awareness

program to demonstrate not only the operation of a Federal

Court of Appeals, but also the effectiveness and quality of

the criminal justice system of the Armed Forces of the

United States. The Court conducted appellate hearings

during this fiscal year, without objection of the parties,

at the Dickinson School of Law, Carlisle, Pennsylvania; the

Duke University School of Law, Durham, North Carolina; the

Howard University School of Law, Washington, D.C.; the

United States Air Force Academy, Colorado Springs, Colorado;

the United States Coast Guard Academy, New London,

Connecticut; and the United States Military Academy, West

Point, New York.

This program has continued to promote an increased

public awareness of the fundamental fairness of the military

justice system and the role of the Court in the overall

administration of military justice throughout the world.

The Court hopes that those who attend these hearings from

both military and civilian communities will realize that the

United States is a democracy that can maintain an armed
5

force instilled with the appropriate discipline to make it a

world power, while affording all its members the full

protection of the Constitution of the United States and

Federal law.

JUDICIAL VISITATIONS

During fiscal year 1997 the Judges of the Court,

consistent with past practice and their ethical

responsibility to oversee and improve the entire military

criminal justice system, participated in professional

training programs for military and civilian lawyers, spoke

to professional groups of judges and lawyers, and visited

with judge advocates and other military personnel at various

military installations throughout the world.

JUDICIAL CONFERENCE

On May 8 and 9, 1997, the Court held its Annual Judicial

Conference in The Marvin Center, George Washington

University School of Law, Washington, D.C. The Judicial

Conference Program was certified for credit to meet the

continuing legal education requirements of numerous State

Bars throughout the United States in order to assist both

military and civilian practitioners in maintaining those

professional skills necessary to practice before trial and

appellate courts. The Conference opened with welcoming

remarks by the Honorable Walter T. Cox III, Chief Judge,
6

United States Court of Appeals for the Armed Forces,

followed by speakers for this year's Conference who included

Brigadier General John S. Cooke, USA, Chief Judge, United

States Army Court of Criminal Appeals, who delivered remarks

on the subject “Military Justice - A Look Back and Ahead”;

Colonel Dennis R. Hunt, USA, Professor of Law, United States

Military Academy, who spoke on “Legal Reasoning and Military

Law”; Professor David A. Schlueter, Saint Mary's University

School of Law, who discussed “Character and Credibility

Evidence”; Dr. Jonathan Lurie, Historian to the United

States Court of Appeals for the Armed Forces and Professor

of History, Rutgers University, whose topic was “The

Unlikely Undertaking of Writing the Court’s History -- Fact?

. . . or Fiction?”; Professor Paul C. Giannelli, Case

Western University School of Law, who addressed the subject

of “Polygraphs”; Major Amy M. Frisk, USA, Professor,

Criminal Law Department, The Judge Advocate General's

School, United States Army, and Major Maurice Lescault, Jr.,

USA, Professor, Administrative and Civil Law Department, The

Judge Advocate General's School, United States Army, who

together presented a program on "Ethics"; Professor Stephen

A. Saltzburg, George Washington University National Law

Center, who reviewed recent Supreme Court cases; Vaughn E.

Taylor, Esquire, who presented a program on “Trial and

Appellate Advocacy”; Professor Fredric I. Lederer, College

of William and Mary School of Law, who spoke on

"Confrontation, Compulsory Process and Command Influence”;

and Lieutenant Commander Tammy P. Tideswell, USN, Head,
7

Trial Advocacy and Criminal Law Division, Naval Justice

School, who presented a discussion on "Computer Crimes."

The Judge Advocates Association Awards for outstanding

career attorneys in each of the Armed Services were

presented by Colonel Eileen Albertson, USMC (Ret.).

WALTER T. COX III

Chief Judge

EUGENE R. SULLIVAN

Associate Judge

SUSAN J. CRAWFORD

Associate Judge

H.F. “SPARKY” GIERKE

Associate Judge

ANDREW S. EFFRON

Associate Judge
8

USCA STATISTICAL REPORT

Fiscal Year 1997

CUMULATIVE SUMMARY

CUMULATIVE PENDING OCTOBER 1, 1996

Master Docket .............................. 73

Petition Docket ............................ 379

Miscellaneous Docket ....................... 1

TOTAL ...................................... 453

CUMULATIVE FILINGS

Master Docket .............................. 385

Petition Docket ............................1234

Miscellaneous Docket ....................... 37

TOTAL ......................................1656

CUMULATIVE TERMINATIONS

Master Docket .............................. 169

Petition Docket ............................1378

Miscellaneous Docket ....................... 31

TOTAL ......................................1578

CUMULATIVE PENDING OCTOBER 1, 1997

Master Docket .............................. 289

Petition Docket ............................ 235

Miscellaneous Docket ....................... 7

TOTAL ...................................... 531

OPINION SUMMARY

CATEGORY SIGNED PER CURIAM MEM/ORDER TOTAL

Master Docket ........... 107 6 56 169

Petition Docket ......... 0 0 1378 1378

Miscellaneous Docket .... 0 0 31 31

TOTAL ................... 107 6 1465 1578
9

FILINGS (MASTER DOCKET)

 Remanded from Supreme Court ............... 0

 Returned from Court of Criminal Appeals.... 4

 Mandatory appeals filed ................... 1

 Certificates filed ........................ 6

 Reconsideration granted ................... 1

 Petitions granted (from Petition Docket)... 373

 TOTAL ..................................... 385

TERMINATIONS (MASTER DOCKET)

 Findings & sentence affirmed .............. 122

 Reversed in whole or in part .............. 35 Signed .... 107

 Granted petitions vacated ................. 1 Per curiam . . 6

 Other disposition directed ................ 11 Mem/order .. 156

 TOTAL ..................................... 169 TOTAL ...... 169

PENDING (MASTER DOCKET)

 Awaiting briefs ........................... 49

 Awaiting oral argument .................... 39

 Awaiting lead case decision (trailer cases) 189

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

 TOTAL ..................................... 289

FILINGS (PETITION DOCKET)

 Petitions for grant of review filed .......1230

 Petitions for new trial filed ............. 2

 Cross-petitions for grant filed ........... 1

 Petitions for reconsideration granted ..... 1

 Returned from Court of Criminal Appeals ... 0

 TOTAL .....................................1234

TERMINATIONS (PETITION DOCKET)

 Petitions for grant dismissed ............. 6

 Petitions for grant denied ................ 981

 Petitions for grant granted ............... 373

 Petitions for grant remanded .............. 8 Signed ...... 0

 Petitions for grant withdrawn ............. 8 Per curiam .. 0

 Other ..................................... 2 Mem/order..1378

 TOTAL .....................................1378 TOTAL .... 1378
10

PENDING (PETITION DOCKET)

 Awaiting briefs ........................... 85

 Awaiting Central Legal Staff review ....... 35

 Awaiting final action ..................... 115

 TOTAL ..................................... 235

FILINGS (MISCELLANEOUS DOCKET)

 Writs of error coram nobis sought ........... 3

 Writs of habeas corpus sought ............... 1

 Writs of mandamus/prohibition sought ........ 7

 Other extraordinary relief sought ........... 4

 Writ appeals sought ......................... 22

 TOTAL ....................................... 37

TERMINATIONS (MISCELLANEOUS DOCKET)

 Petitions withdrawn ......................... 0

 Petitions remanded .......................... 0

 Petitions granted ........................... 1

 Petitions denied ............................ 29 Signed .... 0

 Petitions dismissed ......................... 1 Per curiam. 0

 Other ....................................... 0 Mem/order.. 31

 TOTAL ....................................... 31 TOTAL ..... 31

PENDING (MISCELLANEOUS DOCKET)

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

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

 Awaiting final action ....................... 5

 TOTAL ....................................... 7

RECONSIDERATIONS & REHEARINGS

 BEGIN END DISPOSITIONS

CATEGORY PENDING FILINGS PENDING Granted Denied Total

Master Docket .... 3 9 1 1 10 11

Petition Docket .. 0 6 0 1 5 6

Misc. Docket ..... 0 2 0 0 2 2

TOTAL ............ 3 17 1 2 17 19

MOTIONS ACTIVITY

 BEGIN END DISPOSITIONS

CATEGORY PENDING FILINGS PENDING Granted Denied Other Total

All motions ..... 19 761 23 688 69 0 757
Petition Docket Year En

563

702

442

273 260

199 212

326 353

29

0

100200300400500600700800

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY9

 APPENDIX A
Master Docket Year End 

245

258

177

65

48

72 69

95

152

1

0

50

100150200250300

 APPENDIX B FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY

1/ This figure does not include 16 trailer cases to United States v. Watson, No. 68206/MC, and 8 

Weiss, No. 67869/MC.

2/ This figure does not include 87 trailer cases to United States v. Mitchell, No. 93-1044/NA, and 

Rexroat, No. 93-5007/AR.

3/ This figure does not include 133 trailer cases to United States v. Gorski, No. 97-0034/AF.

1/

2/
Oral Arguments Per Year

102

82

112

86 89

100

112

124 122

144

112 1

0

255075

100125150

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY

 APPENDIX C
Total Opinions Per 

21

76

23

105

48

134

79

130

56

120

65

105

64

125

95

129

112

129

101

14

0

255075

100125150

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY9

TOTAL SEPARATE OPINIONS (CONCUR, CONCUR IN THE TOTAL COURT OPINIONS

 APPENDIX D
Days from Petition Filing 

143 141

181

142

113 117

96

114 113 10

0

255075

100125150175200

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY9

 APPENDIX E
Days from Petition Grant

 to Oral Argument

426

330 335

176

158

131 143 151

188

244

276

2

0

75

150225300375450

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY

 APPENDIX F
Days from Oral Argument

 to Final Decision

116

220

236

261

185

148 141 151 159 166 169

1

0

50

100150200250300

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY

 APPENDIX G
Days from Petition Filin

to Final Decision

66

352

63

501

80

549

63

537

55

387

57

269

57

324

69

347

90

258

92

312

90

473

75

0

50

100150200250300350400450500550

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 F

PETITION DOCKET (DENIAL/DISMISSAL/WITHDRAWALMASTER DOCKET (GRANTED/CERTIFIED/DEATH CASES

 APPENDIX H
Days from Filing to

Final Decision in All Cas

93

109

127

108

76 75 82

108

145

178

138

1

0

20406080

100120140160180

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY

 APPENDIX I
Total Petitions Filed Per 

2706 2721 2719

2195

2383

2160

1813

1291

1610 1514

1251

1

0

250500750

100012501500175020002250250027503000

FY85 FY86 FY87 FY88 FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY

 APPENDIX J
APPENDIX K

SELECTED DECISIONS AFFECTING THE

ADMINISTRATION OF MILITARY JUSTICE

WITHIN THE ARMED FORCES 1

COMMAND INFLUENCE

The Court addressed an issue in United States v.

Bartley, 47 MJ 182 (1997), which involved a defense

allegation that the trial defense counsel had entered into

a sub rosa agreement with the Government that the defense

would not make a motion based on unlawful command influence

in exchange for a favorable pretrial agreement. After

earlier remanding the case for further fact-finding on this

issue (43 MJ 426-27), the Court upon further review

examined the evidence relating to the issue and concluded

that it was not convinced beyond a reasonable doubt, based

on the full record, that the command influence issue did

not induce the guilty plea. Thus, the Court set aside the

findings and sentence and authorized a rehearing.

 

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

informational tool by the staff of the Court. It is included for the

convenience of the reader to assist in easily locating cases of

interest during the term. The case summaries are not of precedential

value and should not be cited in briefs filed with the Court. It is

further noted that some of these decisions were not unanimous.
2

COURTS OF CRIMINAL APPEALS

Noting the authority of the Courts of Criminal Appeals

under Article 66(c), UCMJ, concerning the scope of their

fact-finding powers, the Court held in United States v. Ginn,

47 MJ 236 (1997), that Congress intended such courts to act

as fact-finder in an appellate-review capacity and not in the

first instance as a trial court. Thus, the Court also ruled

that it was inappropriate for a Court of Criminal Appeals to

exercise its fact-finding authority to resolve a post-trial

claim of ineffective assistance of counsel predicated, in

part, on the submission of conflicting post-trial affidavits.

However, the Court further noted that an evidentiary hearing

was not required in all cases to resolve such collateral

claims. In resolving a guilty-plea case when an ineffective

assistance of counsel claim was made by an accused, the Court

held that an evidentiary hearing need not be ordered if an

appellate court can conclude that the motion and the files

and records of the case conclusively show that an appellant

is entitled to no relief, citing United States v. Giardino,

797 F.2d 30, 32 (1st Cir. 1986). Although the Court found

that, under the circumstances presented in Ginn, the Court of

Criminal Appeals had erroneously exercised its fact-finding

powers, it nevertheless held that the appellant had not been

harmed because he had not shown that he would not have

pleaded guilty but for counsel’s alleged deficient

representation.
3

PROCEDURE

Examining the requirements of Batson v. Kentucky, 476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986), as earlier

applied in United States v. Moore, 28 MJ 366 (CMA 1989),

concerning government peremptory challenges of court

members of a military accused’s own race, the Court noted

in United States v. Tulloch, 47 MJ 283 (1997), that it had

relied on differences between the military justice system

and the civilian system in reaching its decision in Moore.

In reliance on those differences in Moore, the Court

further noted that it had rejected a requirement that the

defense establish a prima facie case of discrimination.

Addressing the issue of the Government’s burden to justify

a peremptory challenge in Tulloch, the Court held that once

the convening authority has designated a servicemember as

“best qualified” to serve on a court-martial panel, trial

counsel may not strike that person on the basis of a

proffered reason, under Batson and Moore, that is

unreasonable, implausible, or that otherwise makes no

sense. Thus, under the circumstances in Tulloch, the Court

upheld the ruling of the Court of Criminal Appeals that the

trial judge had erred in allowing the trial counsel to

peremptorily challenge a court member.

Addressing the standard of review on appeal of an issue

relating to the providency of pleas of guilty, the Court

held in United States v. Peterson, 47 MJ 231 (1997), that
4

once a military judge has accepted a plea and entered

findings of guilty thereon, an appellate court will not

disturb the findings and plea unless it finds a substantial

conflict between the plea and the accused’s statements or

other evidence of record, quoting United States v. Garcia,

44 MJ 496, 498 (1996).

SUBSTANTIVE LAW

In United States v. Solis, 46 MJ 31 (1997), the Court

rejected a defense argument that there should be an

“exculpatory no” exception in the military justice system

to the offense of making a false official statement in

violation of Article 107, UCMJ. After observing that there

was a conflict among the federal circuit courts of appeals

as to the application of an “exculpatory no” exception to

18 USC § 1001, the Court held that Article 107 differed

from 18 USC § 1001 and that there were important reasons

for such differences relative to the military mission of

the armed forces. The Court held in this regard that the

purpose of military criminal law was to maintain morale,

good order, and discipline within the armed forces, an

objective which had no parallel in civilian criminal law.2

 

2

 Subsequent to the Court’s decision in United States v. Solis, 46 MJ 31

(1997), the Supreme Court of the United States rejected the defense’s

interpretation of 18 USC § 1001 in Brogan v. United States, 66 LW 4111

(S. Ct. June 26, 1998).
5

Citing its prior case law, the Court in United States

v. Bygrave, 46 MJ 491 (1997), affirmed an accused’s

conviction of assault with a means likely to cause death or

grievous bodily harm in violation of Article 128, UCMJ,

where the charged misconduct consisted of the accused

engaging in unprotected sex with a victim whom he

previously informed as to his own HIV-positive condition.

The Court ruled that since a form of aggravated assault was

involved, the victim could not consent to an act that was

likely to result in grievous injury or death.

EVIDENCE

In United States v. Miller, 46 MJ 63 (1997), the Court

held that the military judge did not abuse his discretion

by admitting evidence of the accused’s prior molestation of

another child to show intent, plan or scheme, or motive to

molest the present victim under the provisions of Military

Rule of Evidence 404(b), citing United States v. Hicks, 24

MJ 3 (CMA 1987). The Court also ruled that the accused’s

acquittal of the prior offense was not dispositive since

the proper focus of the admissibility of such evidence was

whether it was relevant and whether its probative value

outweighed its prejudicial impact under the provisions of

Military Rules of Evidence 401 and 403.
6

EVIDENCE OF RETIREMENT BENEFITS

In United States v. Greaves, 46 MJ 133 (1997), the

Court held that a military judge erred in his response to

questions from court members concerning the impact of a

punitive discharge on the accused’s eligibility for

retirement by instructing the members that such matters

constituted collateral consequences which they should not

consider. Noting that the accused was very close to

becoming retirement eligible, the Court held that its prior

decision concerning a similar issue in United States v.

Henderson, 29 MJ 221 (CMA 1989), was easily distinguishable

from the present case, that each case must be examined on

its facts and circumstances, and that the military judge in

this case erred by rejecting evidence pertaining to the

accused’s potential monetary loss of retirement benefits.

CHALLENGES FOR CAUSE

In United States v. Minyard, 46 MJ 229 (1997), the

Court held that a military judge erred by rejecting a

defense challenge for cause against a court member who was

married to an agent involved in the investigation of this

case. The Court distinguished between actual bias and

implied bias by noting that a challenge for cause based on

actual bias is essentially one of credibility where the

military judge’s ruling is accorded great deference,

whereas a challenge based on implied bias is reviewed under

an objective standard (reasonable member of the public)
7

which, in turn, requires an examination under Rule for

Courts-Martial 912(f)(1)(N) to determine if there is

substantial doubt as to legality, fairness, and

impartiality of the court-martial.

ARTICLE 31 RIGHTS

In United States v. Payne, 47 MJ 37 (1997), the Court

addressed a question concerning whether a civilian

polygraph examiner was required to inform a military person

of his Article 31, UCMJ, rights as part of a security

clearance investigation in order for his confession to a

rape offense to be admissible in his subsequent courtmartial. The Court held that where the military accused

requested revalidation of his security clearance and a

polygraph examination was conducted as part of such

security clearance investigation, the person performing the

examination was not required to give Article 31 warnings as

a prerequisite to the admissibility of the accused’s rape

confession to the examiner at the subsequent court-martial

on this charged offense. In reaching its decision the

Court observed that the examiner was a civilian employed by

the Defense Investigation Service, the examiner was outside

the accused’s branch of service, there was no ongoing

criminal investigation of the accused, and the accused

initiated the security investigation.
8

PRETRIAL CONFINEMENT

Addressing a defense claim of unlawful pretrial

punishment in United States v. McCarthy, 47 MJ 162 (1997),

the Court held that the mere fact that an accused

complained to authorities about the conditions of his

pretrial confinement did not support the conclusion that he

was improperly subjected to punishment prior to trial in

violation of Article 13, UCMJ. The Court further held that

the question of unlawful pretrial punishment under Article

13 was a mixed question of law and fact that required a de

novo review, but that the question of whether there was a

purpose or intent to punish an accused before trial

involved basic, primary, or historical facts. Thus, the

Court ruled that a military judge’s finding of fact on the

purpose or intent alleged in the case would be reversed

only for a clear abuse of discretion. After examining the

evidence of record in this case, the Court held that the

military judge did not err by rejecting the accused’s claim

of unlawful pretrial punishment.

ELECTRONIC CRIME

The Court examined the constitutional protection of an

individual’s receipt and transmission of electronic data in

the context of the transmission of child pornography in

United States v. Maxwell, 45 MJ 406 (1996). Therein the

Court observed that a person has a limited expectation of

privacy in e-mail messages received on a computer
9

subscription service and that law enforcement officials

must establish probable cause to enter into a personal and

private computer. However, the Court noted that, after an

electronic message is transmitted, the Fourth Amendment

expectation of privacy diminished and that, after a message

is transmitted and received by another person, the

transmitter no longer controls its destiny. The Court

further distinguished between an electronic message which

had been transmitted via a network service such as America

Online (AOL) and direct “real time” transmissions, noting

that in the former the transmission is stored in a

centralized computer. The Court also distinguished between

information provided by an individual after he received it

through normal channels, noting the loss of the expectation

of privacy after its transmission, and the search of the

computer files of AOL where there was a greater expectation

of privacy which required a warrant. After examining the

information provided for the search warrant of the computer

files of AOL in this case, the Court held that the search

was valid in part and invalid in part. Specifically,

noting that AOL allowed users to select various screen

names, as the warrant was issued in terms of a specific

screen name, the Court held that the conversion of the

screen name to a user name by AOL resulting in the search

of all screen names of the user was overly broad. Rather,

the Court held that the search pertaining to the screen

name provided in the warrant, after viewing a mistake in
10

spelling to be inconsequential, was valid but that the

search under another screen name utilized by the same

accused was invalid.

PRIOR PUNISHMENT

Analyzing the concept of prior punishment in United

States v. Zamberlan, 45 MJ 491 (1997), the Court held that

the military judge did not err by rejecting a defense

requested instruction on prior punishment where the accused

had a nonjudicial punishment previously imposed under

Article 15, UCMJ, which was suspended but subsequently

imposed due to a vacation of the suspension for later

misconduct. Distinguishing its earlier decision in United

States v. Pierce, 27 MJ 367 (CMA 1989), which involved a

prior nonjudicial punishment for the same misconduct

involved in the later court-martial, the Court held that,

in this case, the misconduct giving rise to the courtmartial was not the same misconduct as resulted in the

Article 15 punishment, but was only utilized to vacate the

suspended punishment of that prior proceeding.

CAPITAL PUNISHMENT

The Court previously affirmed a sentence of death in

United States v. Curtis, 44 MJ 106 (1996). Thereafter, the

Court granted a defense petition for reconsideration in

this case, 46 MJ 129 (1997), and held that the accused had

been denied effective assistance of counsel during the
11

sentencing hearing. Accordingly, the Court reversed the

decision of the United States Navy-Marine Corps Court of

Military Review (now the Court of Criminal Appeals) as to

the sentence and remanded the case with directions to

either affirm a sentence of life imprisonment with

accessory penalties or conduct a rehearing on the sentence.

Another death sentence was reviewed by the Court in

United States v. Thomas, 46 MJ 311 (1997). Therein the

Court held that the military judge had erred by instructing

the members to vote on a sentence to death before voting on

a less severe sentence. The Court ruled that the military

judge’s erroneous instructions undermined confidence in the

reliability of this sentence because they created an

intolerable risk that this ultimate sanction was

erroneously imposed. Thus, the Court reversed the decision

of the United States Navy-Marine Corps Court of Criminal

Appeals as to sentence and remanded the record with

direction that a rehearing on sentence may be ordered.

JURISDICTION

Noting the literal language of Article 3(b), UCMJ, the

Court affirmed the decision of the United States Army Court

of Criminal Appeals in United States v. Reid, 46 MJ 236

(1997), which held that an accused must be tried and

convicted on a charge of fraudulent discharge before he can

be tried for misconduct which occurred prior to such
12

discharge. The Court held that a fraudulent discharge is

merely voidable, not void, and that a court-martial

provided an appropriate forum for adjudicating such matter.

Rejecting the Government’s argument of efficiency and

effectiveness as to allowing all charges to be tried by one

court-martial, the Court ruled that this was a matter of

policy to be addressed to Congress, not the Court.

The Court held in United States v. Edwards, 46 MJ 41

(1997), that it had no jurisdiction to directly review

nonjudicial proceedings under the provisions of Article 15,

UCMJ, but held it may review the question of the

admissibility of a record of an Article 15 proceeding at a

court-martial. Thus, the Court addressed the issue of

whether the operational status of a Navy vessel was

relevant to the “vessel exception” of Article 15(a)

concerning a servicemember’s right to demand trial by

court-martial. Citing United States v. Yatchak, 35 MJ 379

(CMA 1992), which construed the term “attached to or

embarked in a vessel” as used in Article 15(b)(2)(A)

concerning the punishment of confinement on bread and

water, the Court held that the limitation should be defined

in the same manner as the term was used in Article 15(a).

As Yatchak held that the operational status of a vessel was

relevant, the Court remanded Edwards for further

proceedings.
REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY

OCTOBER 1, 1996, TO SEPTEMBER 30, 1997

During fiscal year 1997 (FY 97), the Office of The Judge Advocate

General (OTJAG) continued to monitor courts-martial, review and prepare

military publications and regulations, and develop and draft changes to

the Manual for Courts-Martial (MCM) and the Uniform Code of Military

Justice (UCMJ). Through its Field Operating Agencies, OTJAG provided

judicial and appellate services, advice, assistance, and professional

education to ensure the orderly and efficient administration of military

justice. Numbers in this report are based on military end strength of

487,812 in FY 97 and 493,700 in FY 96.

MILITARY JUSTICE STATISTICS

STATISTICAL SUMMARY: FY 97

(See table insert, attached)

U.S. ARMY LEGAL SERVICES AGENCY

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

OTJAG, includes the following organizations involved in the

administration of military justice: the U.S. Army Judiciary, the

Government Appellate Division, the Defense Appellate Division, the Trial

Defense Service, and the Trial Counsel Assistance Program.

U.S. ARMY JUDICIARY

The U.S. Army Judiciary consists of the U.S. Army Court of Criminal

Appeals, the Clerk of Court, the Examination and New Trials Division,

and the Trial Judiciary.

U.S. ARMY TRIAL DEFENSE SERVICE

During FY 97, the United States Army Trial Defense Service (USATDS)

continued to provide high quality, professional defense counsel services

to soldiers throughout the Army. USATDS workload data for FYs 96 and 97

is displayed below.

 FY96 FY97

General Courts-Martial 789 796

Special Courts-Martial 357 344

Administrative Boards 778 564

Nonjudicial Punishment 32,053 33,185

Consultations 33,364 30,026

 ̋

USATDS provided support to the Multi-National Force in the Sinai,

and to troops in Southwest Asia, Macedonia, Haiti, Kuwait, Hungary, and

Bosnia. USATDS counsel manned 56 offices worldwide. At certain

locations, USATDS maintained inter-service agreements to provide mutual
2

support along with Judge Advocates of other services. At Aberdeen

Proving Grounds and other training installations around the world,

USATDS defended soldiers accused of fraternization, rape, and other

consensual or nonconsensual sexual offenses involving trainees.

Pursuant to support agreements, TDS has also undertaken support of

soldiers in Physical Evaluation Boards (PEB) at three selected

locations.

TRIAL COUNSEL ASSISTANCE PROGRAM

During FY 97, the U.S. Army's Trial Counsel Assistance Program

(TCAP) fulfilled its mission of providing information, advice, training,

and trial assistance to military prosecutors world-wide. In addition to

services provided to Army attorneys, TCAP had an expanded constituency

among prosecutors in the Air Force, Navy, Marine Corps, and Coast Guard.

TCAP provided four basic categories of services during FY 1997: (1)

telephone/e-mail inquiry assistance; (2) advocacy training courses; (3)

the TCAP Memo; and (4) trial assistance.

During FY 97, TCAP personnel (three Army judge advocates supported

by a civilian paralegal) accomplished the following: responded to 732

telephonic requests for assistance; 159 e-mail requests for assistance;

sent out materials 245 times in response to calls; provided three

complete sets of TCAP Memos on disk; conducted eleven three-day advocacy

training courses in the continental United States, Panama, Korea,

Hawaii, and Germany, providing 288 hours of continuing legal education

to 206 judge advocates from all services at a cost of $12,705.06 or

$61.68 per judge advocate trained; held a video teleconference which was

transmitted to or later provided to every installation; published and

distributed four editions of the TCAP Memo to approximately 360

subscribers; provided technical and trial assistance in two courtsmartial; and performed press liaison duties for The Judge Advocate

General in one court-martial. On one occasion, TCAP provided

instructional assistance at The Judge Advocate General's School. This

presentation was to the Criminal Law New Developments Course.

Beyond this extensive support to trial counsel, TCAP attorneys

prepared fourteen Answers and Returns to Habeas Corpus petitions filed

with the Office of the U.S. Attorney for the District of Kansas or the

United States Court of Appeals for the Tenth Circuit. They reviewed,

monitored, and responded to twenty Extraordinary Writs filed in either

the Army Court of Criminal Appeals or the Court of Appeals for the Armed

Forces and handled two Government Appeals. Finally, they prepared

briefs and presented oral argument twice before the Army Court of

Criminal Appeals and twice before the Court of Appeals for the Armed

Forces.

SIGNIFICANT MILITARY JUSTICE ACTIONS

Criminal Law Division, OTJAG, advises The Judge Advocate General on

military justice policy, legislation, opinions, and related criminal law

actions. Specific responsibilities include: promulgating military
3

justice regulations and reviewing Army regulations for legal

sufficiency, military corrections, the Army's drug testing program,

federal felony and magistrate court prosecutions, legal opinions for the

Army Staff, statistical analysis and evaluation, and Congressional

inquiries.

Criminal Law Division workload data for the last two fiscal years

is displayed below:

FY96 FY97

White house inquiries 573 139

Congressional inquiries 151 132

Secretary of Defense, Secretary of the Army 349 173

Chief of Staff of the Army, and The Judge

Advocate General inquiries

Miscellaneous inquiries 14 5

Clemency Petitions, Article 74, UCMJ 19 11

Officer Dismissals 18 15

Freedom of Information Act/Privacy Act 24 21

JOINT SERVICE COMMITTEE ON MILITARY JUSTICE

The Chief, Criminal Law Division, OTJAG, serves as the Army

representative to the Joint Service Committee on Military Justice (JSC).

The JSC was established by the Judge Advocates General and the Secretary

of Transportation (Coast Guard) on August 17, 1972. It conducts an

annual review of the MCM as required by Executive Order 12473 and DOD

Directive 5500.17. The JSC proposes and evaluates amendments to the

UCMJ, MCM, and serves as a forum for exchanging military justice

information among the services.

The Army acts as Executive Agent for the JSC on a permanent basis.

In addition, through FY 98, the Army representative is the Chairman of

the Joint Service Committee.

During FY 97, the JSC completed its thirteenth annual review of the

MCM. This review was published in the Federal Register for public

comment and a public meeting was held to receive comments from

interested parties. Highlights of the annual review's proposed changes

include: creating a psychotherapist-patient rule of privilege applicable

to proceedings under the UCMJ; allowing reserve component judges to

conduct trials during periods of inactive duty for training and inactive

duty training travel; procedures to allow a child witness to testify out

of the presence of the accused after appropriate findings by the

military judge; allowing evidence during sentencing that an offense was

a "hate crime"; deleting "loss of numbers" as a punishment; adding the

youth of the victim as an aggravating factor in capital cases; and

recognizing the offense of reckless endangerment. As the result of the
4

public comments, some of the proposed changes have been revised. The

revised changes should be forwarded to the DoD General Counsel in early

FY 98.

At the request of the Secretary of Defense, the Committee conducted

a substantial study and analysis of the offense of adultery. As the

result of that review, the Committee recommended adding language

providing further guidance on the offense. Those recommendations were

forwarded to a Senior Review Panel, which was established to review the

Committee's recommendations. The Senior Review Panel has reviewed the

JSC's work and is considering additional changes.

 The JSC also initiated a review of the new DoD policy on hazing and

how to best make punitive any violations of that policy. Upon

completion of its review, the JSC will report back to the DoD General

Counsel.

FOREIGN CRIMINAL JURISDICTION

As Executive Agent for the Department of Defense, the Department of

the Army, through the International and Operational Law Division, OTJAG,

compiles information concerning the exercise of foreign criminal

jurisdiction over U.S. personnel.

The data below, while not drawn from precisely the same reporting

period used in other parts of this Report, does provide an accurate

picture of the exercise of foreign criminal jurisdiction during this

reporting period:

 1 Dec 1994 1 Dec 1995

 to to

 30 Nov 1995 30 Nov 1996

Foreign Offense Citations 5,796 4,611

Total Civilian 1,428 1,336

Total Military 4,368 3,275

 Exclusive Foreign Jurisdiction 984 152

 Concurrent Jurisdiction 3,384 3,123

 Traffic/Other Minor Offenses 341 331

 1,125 901

There was a significant decrease in the Exclusive Foreign

Jurisdiction category. Last year's reported figure (984) for 1 Dec 1994

to 30 Nov 1995 was an anomaly when compared to the prior year (from 1

Dec 93 - 30 Nov 94) and this year's figures (182 and 152 respectively).

The anomaly is the result of large changes in the Navy's numbers for

those years. Apart from this noticeable change, all reported categories

have decreased proportionally. This correlates directly with the

decreased number of serious offenses, such as manslaughter, robbery,

larceny, simple assault, and drug offenses, committed overseas by

servicemembers against foreign nationals.
5

This year, foreign authorities released 11 of the 152 exclusive

foreign jurisdiction cases involving military personnel to U.S.

authorities, for disposition. In concurrent jurisdiction cases in which

the foreign countries had the authority to assert primary jurisdiction,

U.S. military authorities were able to obtain waivers of the exercise of

this jurisdiction in 2,363 cases. Overall, the U.S. obtained waivers in

75.6 percent of all exclusive and concurrent jurisdiction cases. This

figure reflects a decrease in such waivers from 1994-1995, when the

figure was 90.3 percent.

The 75.6 percent waiver rate includes a very low 9.2 percent waiver rate

for Panama. Panama's waiver rate is reported artificially low because

of the DoD mandated reporting format. That format is geared exclusively

towards those countries with an arrangement for the automatic waiver of

jurisdiction. Waivers of Panamanian jurisdiction are not automatic and

must be requested by U.S. authorities. The DoD report format does not

permit the reporting of the number of cases in which waiver had been

requested. Upon further inquiry, United States Army South (USARS0)

reported that 100 percent of the waivers requested were granted for

1996. If this figure were factored into the 76 percent waiver rate

noted above, the resulting overall waiver percentage would be close to

that of the last reporting period. Future reports will take these

factors into consideration.

During the previous reporting period, civilian employees and

dependents were involved in 1,428 offenses. Foreign authorities

released 326 of these cases (22.8 percent of this total) to U.S.

military authorities for administrative action or some other form of

disposition. This year, civilian employees and dependents were involved

in 1,336 offenses. The foreign authorities only released 192 of these

cases (14.4 percent of the current total).

Foreign authorities tried a total of 1,083 cases. Eighteen trials

(1.7 percent) resulted in acquittals. This is an increase from last

year when only 6 trials (.4 percent of that year's trials) ended in

acquittals. Those convicted were sentenced as follows: 25 cases with

executed confinement; 55 cases with suspended confinement; and 985 cases

(91 percent of the total trials) with only fines or reprimands.

PROFESSIONAL RESPONSIBILITY

The Professional Responsibility Branch, Standards of Conduct

Office, was created in August 1991. It is charged with managing TJAG's

professional responsibility program, previously a responsibility of the

OTJAG Criminal Law Division.

In 1987 the Army promulgated AR 27-26, Rules of Professional

Conduct for Army Lawyers (Army Rules). These rules, which closely

parallel the ABA's Rules of Professional Conduct for Lawyers, apply to

all active and reserve component judge advocates, all Department of the

Army civilian attorneys, and non-government attorneys who practice

before courts-martial. The Army Rules were revised in 1992.
6

The Professional Conduct Branch maintains its records on a calendar

year basis. During 1996, 33 professional conduct inquiries were closed,

a 14% increase over 1995's 29 cases. Based on the 1997 closed cases

through October, there will be a decrease in closed professional conduct

inquiries. Of the cases closed in 1996, 70% of the allegations of

attorney ethical violations were, after a full inquiry, determined to be

unfounded. Of founded cases, 30% were minor or inadvertent violations

of attorney ethics rules. On average, 30% of all attorney ethics

inquiries concern the conduct of trial or defense counsel. Each year

since 1987, we have conducted an average of one ethics inquiry per year

into allegations concerning a military judge.

LITIGATION

The number of civil actions against the Department of the Army and

its officials remains relatively high with 659 lawsuits filed in FY 97.

Civil actions requiring civilian courts to interpret the UCMJ constitute

a small but significant portion of this litigation. The majority of

these cases seek collateral review of courts-martial proceedings. One

noteworthy case decided in the last year upheld the propriety of

exercising court-martial jurisdiction over an enlisted soldier who

refused to wear the United Nations blue beret and other accouterments in

preparation for his unit's deployment to support peace keeping

operations in Macedonia. Another case is a class action filed on behalf

of inmates at the United States Disciplinary Barracks, Fort Leavenworth,

Kansas, which alleges that living conditions there generally violate the

eighth amendment proscription against cruel and unusual punishment.

Most of the remaining suits involve challenges to specific confinement

conditions, parole and clemency proceedings, or administrative actions

taken by confinement facility officials.

EDUCATION AND TRAINING

In Charlottesville, Virginia, the Criminal Law Department of The

Judge Advocate General's School introduced several initiatives this

year, many of them geared to lead and support the Corps-wide effort to

improve and sustain advocacy skills.

After several years' absence, contested courts-martial were

reintroduced to the curriculum beginning with the 143d Judge Advocate

Officer Basic Course in July. Each Basic Course student now will act as

sole counsel in a contested court-martial before graduation. This is in

addition to their performing as counsel in a court-martial guilty plea

and an administrative separation board. The Military Justice Managers

Course, offered for the third time in August, now includes a component

on advocacy training. The Graduate Course was offered for the first

time an elective in creation of advocacy training scenarios, enabling

the School to draw on the experience of Graduate Course students and to

spur the development of training scenarios for practitioners.
7

The most significant contribution to the advancement of advocacy

was the publication of The Advocacy Trainer, A Manual for Supervisors.

The Trainer contains numerous skill development drills in all aspects of

court-martial practice. The package of scripted and videotaped training

scenarios is designed to give supervisors - primarily chiefs of justice

and senior defense counsel - the ability to conduct "off the shelf"

training in all trial-related skills. World-wide distribution was made

and orders were received from the Air Force, Navy and Marine Corps as

well.

In response to a Department of Defense tasking, the department

offered the First National Security Crime Symposium in February 1997.

This four-day course was designed to bring together practitioners and

investigators in the national security field. Thirty-nine military and

three civilian students from all services attended the successful first

course, which was capped by an address from M.E. (Spike) Bowman,

Associate General Counsel (National Security Affairs), Federal Bureau of

Investigation. The next iteration of this course will occur in June

1998 as the National Security Crimes/ Intelligence Law Course.

The department continued to strengthen its links to the sister

services during this year, not only by sharing the Advocacy Trainer but

also by instructing at each other's courses. Major Moran taught a class

at the Air Force Trial and Defense Counsel Advocacy Course on the use of

demonstrative evidence. Major Pede gave tips on testifying to agents at

the Advanced Foreign Counter-Intelligence Training Course, Fort Meade,

Maryland, and Major Coe enlightened Navy and Marine Corps defense

counsel with a criminal law update at the Defense Counsel Workshop in

New Orleans.

Again the department was host to several distinguished guest

speakers, including Professor William R. Eleazer of Stetson (Fla.)

University Law School, who spoke to the 7th Criminal Law Advocacy Course

(CLAC) in April, and Colonel (Ret.) John Smith, who spoke to the 8th

CLAC in September. Walter Cox, III, Chief Judge of the Court of Appeals

for the Armed Forces, again opened the 40th Military Judge Course in

May, with his popular and motivational presentation on the challenges

and rewards of serving as a trial judge. Students in that course also

had the opportunity to hear Brigadier General John S. Cooke, Chief Judge

of the Army Court of Criminal Appeals, deliver his experienced

perspectives on judging. The 20th New Criminal Law Developments Course

in November 1996 featured Prof. John E.B. Myers, McGeorge School of Law,

University of the Pacific, noted authority in the field of child sexual

abuse, and Skip Webb, Chief, Polygraph Division, U.S. Army Criminal

Investigation Command, who demonstrated the new computerized polygraph

machine.

Two criminal law faculty members served on Expanded International

Military Education Training missions: Major Henley accompanied a

delegation to Bangladesh in September, and Major Coe was part of a

contingent that traveled to Uganda in April.
8

PERSONNEL, PLANS, AND POLICIES

The strength of the Judge Advocate General's Corps at the end of FY

97 was 1,523. This total includes 50 officers participating in the

Funded Legal Education Program. The diverse composition of the Judge

Advocate General's Corps included 101 African-Americans, 40 Hispanics,

38 Asians and Native Americans, and 321 women. The FY 97 end strength

of 1,523 compares with an end strength of 1,541 in FY 96, 1,561 in FY

95; 1,575 in FY 94; 1,646 in FY 93; and, 1,710 in FY 92. The grade

distribution of the Corps was 4 general officers; 129 colonels; 222

lieutenant colonels; 297 majors; 757 captains; and 68 first lieutenants.

Sixty-four warrant officers, 354 civilian attorneys, and 1,571 enlisted

soldiers supported legal operations worldwide.

To ensure selection of the best-qualified candidates for

appointment, career status, and schooling, The Judge Advocate General

convened advisory boards several times during the year. Competition for

appointment in the Corps remains keen with more than ten applicants

applying for each opening.

One hundred and ninety-eight Judge Advocate officers completed the

following resident service schools:

U.S. Army War College 2

National War College 1

Industrial College of the Armed Forces 2

Department of Justice Fellowship 1

U.S. Army Command and General Staff College 16

The Judge Advocate Officer Graduate Course 56

The Judge Advocate Officer Basic Course 120

During FY 97, eight officers completed funded study for LL.M.

degrees in the following disciplines: environmental law, international

law, criminal law, constitutional law, and government procurement law.

As a separate competitive category under the Department of Defense

Officer Personnel Management Act, officers of the Judge Advocate

General's Corps compete among themselves for promotion. During FY 97,

the Secretary of the Army convened six selection boards to recommend

Judge Advocate officers for promotion to higher grades.

WALTER B. HUFFMAN

Major General, US Army

The Judge Advocate General
Page 1 of 2

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 1997

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 741 701 40 -6.1%

BCD SPECIAL [A] 312 271 41 -5.2%

NON-BCD SPECIAL 13 8 5 -53.6%

SUMMARY 396 381 15 +66.4%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT +5.6%

PART 2 – DISCHARGES APPROVED [B]

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES (+ dismissals) 152 (+26)

 NUMBER OF BAD-CONDUCT DISCHARGES 391

SPECIAL COURTS-MARTIAL [A]

 NUMBER OF BAD-CONDUCT DISCHARGES 155

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 766

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 156

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 94

PART 4 – WORKLOAD OF THE U.S. ARMY COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD

(AT ISSUE) 97 [C]

 GENERAL COURTS-MARTIAL [D]

 BCD SPECIAL COURTS-MARTIAL [D]

REFERRED FOR REVIEW (AT ISSUE) 734 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL CASES REVIEWED 733 [E]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL PENDING AT CLOSE OF PERIOD (AT

ISSUE)

98 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

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

REVIEWED DURING LAST REPORTING PERIOD -12.0%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. ARMY COURT OF CRIMINAL APPEALS (CCA)

NUMBER 731 [F]

PERCENTAGE 99.86%

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 361 of 733[G] 49.2%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD + 1.4%

PERCENTAGE OF TOTAL PETITIONS GRANTED 64 of 392 [G] 16.3%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD + 9.3%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA [G] 8.7%

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

LAST REPORTING PERIOD 39 in FY 96; 50 in FY 97 [H] + 28.2%
Page 2 of 2

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS - CONT’D

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 9

RECEIVED 18

DISPOSED OF 22

 GRANTED 1

 DENIED 15

 NO JURISDICTION 6

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 5

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 499

SPECIAL COURTS-MARTIAL 217

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 242

SPECIAL COURTS-MARTIAL 108

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 486668

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 39907

RATE PER 1,000 82.0

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD 7.8 increase

EXPLANATORY NOTES

 

[A] Cases convened by GCM convening authority.

[B] Based on records of trial received during FY for appellate review.

[C] Includes only cases briefed and at issue.

[D] No reason being seen for distinguishing, GCM and BCDSPCM appeals are not tracked separately.

[E] Includes Article 62 appeals, All Writs Act cases, and appeals withdrawn.

[F] Includes 8 represented by civilian, as well as military, counsel.

[G] Refers only to cases actually forwarded and petitions acted upon in FY.

[H] Includes all Army cases decided (including remands) in FY, whether petitioned, certified, or mandatory review.
ANNUAL REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

OCTOBER 1, 1996, TO SEPTEMBER 30, 1997

SUPERVISION OF THE ADMINISTRATION OF

MILITARY JUSTICE

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

of Military Justice, the Judge Advocate General and the Deputy Judge

Advocate General made frequent inspections of legal offices in the

United States, Europe, and the Far East in order to supervise the

administration of military justice.

ARTICLE 69(a), UCMJ, EXAMINATIONS

Fifty-five general court-martial records of trial, not

statutorily eligible for automatic review by the Navy-Marine Corps

Court of Criminal Appeals, were forwarded for examination to the

Office of the Judge Advocate General in fiscal year 1997. Three cases

required corrective action by the Judge Advocate General. One case

was pending review at the close of fiscal year 1997.

ARTICLE 69(b), UCMJ, APPLICATIONS

In fiscal year 1997, 25 applications under Article 69(b), Uniform

Code of Military Justice, were received for review. 

Additionally, eight such applications remained pending from fiscal

year 1996. Of these 33 applications, 20 were denied on the merits,

while relief was granted in whole or in part in six cases. Seven

cases are currently pending review.

ARTICLE 73, UCMJ, PETITIONS

In fiscal year 1997, one petition for new trial was received by

the Office of the Judge Advocate General and that petitioned was

denied.
2

APPELLATE DEFENSE DIVISION

Appellate Defense Practices. A total of 2240 cases of the 2406

cases received were reviewed during fiscal year 1997 by an average of

16 active duty Navy and Marine Corps judge advocates and 25 Naval and

Marine Corps Reserve judge advocates assigned to the Appellate Defense

Division. The number of cases reviewed represents an increase of 6.8%

over the cases reviewed the previous fiscal year. Of that total, 487

(22%) were fully briefed to the Navy-Marine Corps Court of Criminal

Appeals, while 1268 (57%) were summarily assigned. Three hundred and

forty-five cases were petitioned to the Court of Appeals for the Armed

Forces. 

Capital Litigation. This was another active year for the

Division in this area of the law. Two decisions were issued by the

Court of Appeals for the Armed Forces in which new sentence hearings

were ordered: United States v. Curtis and United States v. Thomas.

The Division assisted in the third annual Death Penalty Defense

Course at the Naval Justice School. This course presented a "how to"

look at trial level litigation. Civilian and military experts taught

the basics on how to prepare and defend capital cases.

The year also saw the implementation of the Defense Capital

Litigation Resource Center. The Center is headed by Captain Henry

Lazzaro, JAGC, USNR, a Naval Reserve judge advocate with an extensive

background as a criminal litigator. He is actively assisting Navy,

Marine, and Army trial defense counsel who are currently assigned to

defend service members in three pending death penalty cases. Captain

Lazzaro and the Center's resources are available for judge advocates

from any branch of the armed forces.
3

Supreme Court Practice. During fiscal year 1997, seven petitions

for writ of certiorari were submitted. 

Trial Defense Assistance. Assistance to trial defense counsel

continued to be a primary service offered by the Appellate Defense

Division. This year the Division implemented its own electronic

advisory in which summaries of appellate cases were provided to the

field counsel. Litigation tips and advice regarding trial procedures

or tactics are also included in these advisories. In addition to the

electronic advisories, counsel at the Appellate Defense Division

continue to be available to assist trial defense counsel with

telephonic advice.

Reserves. The reserve team continues to be an integral part of

our appellate practice. When the Appellate Defense Division turned

over almost 75% of its personnel this summer, the reserves stepped in

and provided the support needed to keep the cases moving. 

Approximately 25 Naval and Marine Corps Reserve judge advocates

reviewed 1423 cases; almost 60% of the Division docket.

APPELLATE GOVERNMENT DIVISION

Appellate Representation. The eight Navy and five Marine Corps

judge advocates assigned to the Appellate Government Division filed a

total of 1601 pleadings last year; 1282 with the Navy-Marine Corps

Court of Criminal Appeals and 319 with the Court of Appeals for the

Armed Forces.

Field Assistance. The Trial Counsel Assistance Program (TCAP) is

a function within the Appellate Government Division which provides a

central coordinating point to assist field trial counsel and staff

judge advocates in the effective prosecution of courts-martial. 

Eleven appellate counsel are detailed to implement this program. In
4

fiscal year 1997, prompt assistance was provided in response to almost

800 telephone calls or electronic messages from trial counsel and

staff judge advocates requesting advice or information about cases

pending or being tried. Additional assistance was provided through

training presentations. The Appellate Government Division also

published six Electronic Viewpoints to the field dealing with a

variety of current legal issues.

Presentations. Government counsel participated in the 1997

Judicial Conference of the United States Court of Appeals for the

Armed Forces and made presentations at the Army Judge Advocate

General's School; the Navy-Marine Corps Trial Judiciary Conference in

San Diego, California; the Army-Navy Reserve Conference in

Minneapolis, Minnesota; the Courts of Criminal Appeals Judge's

Conference in Washington, D.C.; and multiple presentations at the

Naval Justice School in Newport, Rhode Island. These presentations

included extensive support of the Government's Capital Litigation

Course.

Reserves. The Appellate Government Division provided training

to, while receiving outstanding support from, 13 Naval reservists

assigned to NAMARA (Govt 116) and NAVJAG 113 and six Marine Corps

reservists. The reservists continued to make a significant

contribution to the successful completion of the Division's mission. 

Additionally, the Division was honored by receiving the Rear Admiral

Hugh H. Howell Award for Excellence for its integration of reserve

personnel with the active duty judge advocates.

NAVY-MARINE CORPS TRIAL JUDICIARY

 The Navy-Marine Corps Trial Judiciary (NMCTJ) consists of 33

active duty judges and 26 reservists serving in 13 circuit offices. 
5

In addition, the judiciary staffs four branch offices. The Northeast

Judicial Circuit billet is currently gapped, with the cases from that

area of responsibility being handled by judges from the Tidewater and

Atlantic Circuits.

During fiscal year 1997, NMCTJ provided judicial services in 548

general courts-martial and 2698 special courts-martial. These numbers

represent a slight increase in general courts-martial (17) and a

decrease in special-martial (96), as compared to fiscal year 1996.

NMCTJ provided judicial services to fleet, Fleet Marine Force,

and shore activities in the Continental United States and around the

world, including Iceland, the Pacific islands, and at sea.

Members of the Trial Judiciary participated in continuing

judicial education at the Trial Judiciary's annual training

conference, the Naval Justice School, the Army Judge Advocate

General's School, and the Air Force-sponsored Interservice Military

Judges' Seminar. NMCTJ also provided training at various levels,

including the Navy-Marine Corps Senior Officer Courses and other inservice courses. NMCTJ also performed an active role in mentoring

judge advocates through both formal and informal training sessions.

NAVAL LEGAL SERVICE COMMAND

Naval Legal Service Command (NAVLEGSVCCOM) provides a wide range

of legal services to afloat and ashore commands, active duty naval

personnel, dependents, and retirees from 68 offices world-wide: eight

Naval Legal Service Offices (NLSOs), five Trial Service Offices

(TSOs), the Naval Justice School, and 54 detachments and branch

offices. NAVLEGSVCCOM provides counsel for courts-martial,

administrative boards, physical evaluation boards, legal assistance,

and local commanders. NAVLEGSVCCOM also provides assistance for
6

claims processing and adjudication, and training judge advocates,

legalmen, and other DoD personnel.

Over the last year NAVLEGSVCCOM added two new TSOs--TSO Pacific

(Pearl Harbor) and TSO Europe and Southwest Asia (Naples). The NLSOs

at San Francisco, Pearl Harbor, Great Lakes, and Groton stood down,

but NLSO detachments remain at the latter three locations. The new

TSOs are assuming all trial counsel (prosecution), court reporting,

and command service functions formerly provided by the corresponding

NLSO in their area. The NLSOs retained defense counsel, personal

representation, legal assistance, and claims functions.

The field version of the Military Justice Management Information

System (MJMIS) has been developed and was implemented in our CONUS

NLSOs and TSOs. Additional installation at CONUS sites is scheduled

for the second quarter of fiscal year 1998. MJMIS provides a

consolidated tracking system for courts-martial from the initial

receipt of charges through the appellate process. 

NAVLEGSVCCOM continues to upgrade the hardware and software

assets of its personnel, purchasing Pentium computers and creating a

Navy JAG CD-ROM. The JAG Corps offices now have access to the

Internet and a Navy JAG Home Page on the World Wide Web.

NAVLEGSVCCOM is commanded by the Deputy Judge Advocate General of

the Navy and includes 325 officers, 218 enlisted, and 218 civilian

personnel. The command constitutes about 40% of the Navy's total

judge advocate strength.

NAVAL JUSTICE SCHOOL

Organization. The Naval Justice School (NJS) reports to the 

Commander, Naval Legal Service Command, for administrative and

operational control. The main NJS facility is located in Newport,
7

Rhode Island. Teaching detachments are also based in San Diego,

California, and Norfolk, Virginia (areas of fleet concentration). 

Also reporting to the Commanding Officer, NJS, is the Defense

Institute of International Studies, operating under the Expanded

International Military Education and Training (EIMET) Program.

Mission Statement. The mission of NJS is:

1. To oversee training of Navy judge advocates, limited

duty officers (law), and legalmen to enhance their career-long

professional development and readiness;

2. To provide comprehensive formal training to all sea

service (Navy, Marine Corps, and Coast Guard) judge advocates and

other legal personnel to promote justice and ensure the delivery of

quality legal advice and other legal services; and

3. To train sea service commanders and senior officers in

the practical aspects of military law to enable them to perform their

command and staff duties, and train other sea service personnel to

assist in the sound administration of military justice.

Coordination. Through the Inter-Service Legal Education Review

Committee (ISLERC), the Commanding Officer of NJS meets with the

Commandants of the Army and Air Force JAG Schools semiannually to

discuss new initiatives and opportunities for cross-training, and to

increase cooperation and efficiency in the training of legal personnel

within DoD.

Academic Programs. NJS has five "core" courses, all of which

contain substantial blocks of instruction relating to military justice

and operation of the UCMJ. These courses are:

1. Accession Judge Advocate Course. This nine-week course is

offered four times per year and is the accession level course in

military justice for all judge advocates of the Navy, Marine Corps,
8

and Coast Guard. The majority of the course is dedicated to military

justice and court-martial advocacy training (other topical areas

include legal assistance and administrative law). Upon graduation

from NJS, judge advocates are certified in accordance with Article

27(b), UCMJ. In fiscal year 1997, the following numbers of judge

advocates graduated from NJS:

Navy: 88

Marine Corps: 48

Coast Guard: 12

International: 1

2. Accession Legalman Course. This nine-week course is offered

four times per year. In fiscal year 1997, the course consisted of two

phases: a paralegal phase, dedicated to training Navy legalmen in

military justice practice (six weeks), and a court reporting phase

(three weeks). In fiscal year 1997, 89 legalmen graduated from NJS.

3. Senior Officer Course in Military Justice and Civil Law

(SOC). This four-day course is taught both in Newport and in other

areas of fleet and Fleet Marine Force concentration. In fiscal year

1997, it was offered 21 times, at 13 different locations. The course

is designed to prepare senior officers in the execution of the legal

responsibilities of command. As such, the majority of the course

focuses on such areas as nonjudicial punishment and court-martial

procedures. In fiscal year 1997, the following numbers of senior

officers participated in SOCs:

Navy: 695

Marine Corps: 185

Coast Guard 21

Civilian 3

Air Force 1

4. Legal Officer Course. In the sea services, non-lawyer "legal

officers" perform a host of military justice functions in many

commands that are not large enough to warrant assignment of a judge
9

advocate. This four-week course is geared toward these collateral

duty legal officers (typical paygrade is 0-1 to 0-3) and prepares them

to assume legal duties in their respective commands. This course is

offered 16 times per year, at Newport, San Diego, and Norfolk. In

fiscal year 1997, the following numbers of legal officers were trained

at NJS:

Navy: 427

Marine Corps: 73

Coast Guard: 2

Civilian: 1

International: 3

5. Legal Clerk Course. Typically assigned to assist a nonlawyer legal officer within a command is a "legal clerk," usually a

collateral duty for a command yeoman, personnelman, or (in the Marine

Corps a legal services specialist). This two-week course is designed

to provide training in the area of legal forms and reports, service

record entries, post-mast and post-court-martial procedures. In

fiscal year 1997, the course was offered 23 times, at Newport, San

Diego, and Norfolk, and trained the following numbers of personnel:

Navy: 359

Marine Corps: 12

Coast Guard: 0

Civilian: 3

Army: 1

In addition to the "core" courses described above, NJS offered

numerous continuing legal education programs throughout fiscal year

1997 which included detailed instructions relating to the operation of

the UCMJ. These include:

Officer Courses:

Reserve Judge Advocate Course (two weeks)

Staff Judge Advocate Course (two weeks)

Capital Litigation Course (three days)

 (Separate offerings for both

 Prosecution and Defense)

Intermediate Trial Advocacy Course (one week)

Advanced Trial Advocacy Course (two days)

Coast Guard Law Specialist Course (one week)
10

Reserve JAGC Military Law Workshop (two days)

Computer Crimes (two days)

National College of District (one week)

 Attorneys Course

Senior Leadership Military Justice (two days)

 Refresher

Enlisted Courses:

Reserve Legalman Course (two weeks)

Army Reserve Court Reporting Course (two weeks)

Mid-Career Legalman Course (two weeks)

Senior Legalman Course (one week)

International Programs. Within the EIMET program, the NJS

Defense Institute of International Legal Studies plays an important

role in developing educational programs for foreign military and

civilian officials in the areas of military justice, human rights,

disciplined military operations, and civilian control of the military.

 In many of these programs, the structure and operation of the UCMJ is

used both to initiate discussion and as a comparative model. In

fiscal year 1997, the NJS International Training Detachment was

involved in training delegations from over 50 countries and assisted

several developing democracies in drafting their own military justice

codes.

Publications. NJS is responsible for the publication of the

Naval Law Review, all materials in support of academic programs, and

any additional materials directed by higher authorities. In fiscal

year 1997, Volume 44 of the Naval Law Review was published, and

contained several articles related to the operation of the UCMJ. NJS

also updated several of its study guides.

MARINE CORPS ACTIVITIES

The Marine Corps judge advocate community consisted of

approximately 392 certified judge advocates during fiscal year 1997. 

Nearly half of all judge advocates were company grade officers, in pay
11

grade 0-3 or below. Thirty-five officers were new accessions, ordered

to begin their period of active duty at The Basic School in Quantico,

Virginia. In addition, to the new accessions, 10 officers graduated

from ABA accredited law schools by way of government sponsored law

education programs. Four of these officers graduated from the Funded

Law Education Program (FLEP) and six graduated from the Excess Leave

Program (LAW) (ELP). Thirteen officers are currently assigned to FLEP

and fifteen are now attending law school under the ELP.

Ten judge advocates attended resident professional military

education courses in fiscal year 1997. Six majors and one captain

received LL.M. degrees from the graduate course at the Army Judge

Advocate General's School. Two captains completed the Amphibious

Warfare School in Quantico, Virginia, and one major completed the

Command and Staff Course. Two majors received LL.M. degrees through

the Special Education Program (SEP). Twelve officers are currently

attending resident professional military education courses and two are

assigned to the SEP.

As unrestricted officers, Marine Corps judge advocates continue

to fill numerous non-legal billets. Two judge advocates serve in

command billets at Marine Corps Recruit Depot, Parris Island, South

Carolina, and Marine Corps Air-Ground Combat Center, 29 Palms,

California. Three colonel judge advocates are chiefs of staff at

major commands. During fiscal year 1997, three judge advocates (one

colonel and two lieutenant colonels) were approved for command. Ten

judge advocates continue to serve in joint billets.

The Marine Corps reserve judge advocate community averaged 393

officers during fiscal year 1997. Approximately 300 of these officers

were actively participating in the Reserve. Two colonel reserve judge

advocates currently serve as appellate judges on the Navy-Marine Corps
12

Court of Criminal Appeals. Fifteen reserve judge advocates, major

through colonel, serve as military judges in the Navy-Marine Corps

Trial Judiciary. Sixteen reserve judge advocates serve as appellate

counsel with the Navy-Marine Corps Appellate Review Activity. Reserve

judge advocates serve at bases and stations throughout the country and

overseas. They provide legal support alongside, and are

indistinguishable from, their active duty counterparts in billets

ranging from instructors at Naval Justice School to legal assistance

attorneys at Marine Corps Base, Camp Pendleton. Reserve judge

advocates are also found serving in non-legal billets at various

combat arms and supporting commands.

JOHN D. HUTSON

Rear Admiral, USN

Judge Advocate General of the Navy
Page 1 of 2

APPENDIX - U.S. NAVY/MARINE CORPS MILITARY JUSTICE STATISTICS

Report Period: FY 1997

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 548 511 37 +4%

BCD SPECIAL 2698 2586 112 -3%

NON-BCD SPECIAL 0 0 0 .0%

SUMMARY 1631 1589 42 +4%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT -.2%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 205

 NUMBER OF BAD-CONDUCT DISCHARGES 220

SPECIAL COURTS-MARTIAL ( SA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 1756

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 387

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 1926

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 47

PART 4 – WORKLOAD OF THE U.S. NAVY-MARINE CORPS COURT OF CRIMINAL

 APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 1646

 GENERAL COURTS-MARTIAL 430

 BCD SPECIAL COURTS-MARTIAL 1216

REFERRED FOR REVIEW 2370

 GENERAL COURTS-MARTIAL 419

 BCD SPECIAL COURTS-MARTIAL 1951

TOTAL CASES REVIEWED 2008

 GENERAL COURTS-MARTIAL 363

 BCD SPECIAL COURTS-MARTIAL 1645

TOTAL PENDING AT CLOSE OF PERIOD 2008

 GENERAL COURTS-MARTIAL 490

 BCD SPECIAL COURTS-MARTIAL 1518

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

REVIEWED DURING LAST REPORTING PERIOD 2090/2008 -4%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (CCA)

NUMBER 2370

PERCENTAGE 100%

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 346 17%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD 0%

PERCENTAGE OF TOTAL PETITIONS GRANTED 47 14%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD + 7%more=50% increase

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA 2.3%

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

LAST REPORTING PERIOD + 88%
Page 2 of 2

APPENDIX - U.S. NAVY/MARINE CORPS MILITARY JUSTICE STATISTICS - CONT’D

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 8

RECEIVED 25

DISPOSED OF 26

 GRANTED 6

 DENIED 20

 NO JURISDICTION 0

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 7

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 427

SPECIAL COURTS-MARTIAL 2437

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 121

SPECIAL COURTS-MARTIAL 261

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 200

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 556,559

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 34,033

RATE PER 1,000 60.1

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD +10%
REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE

OCTOBER 1, 1996 TO SEPTEMBER 30, 1997

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

of Military Justice (UCMJ), The Judge Advocate General and Deputy Judge

Advocate General made official staff inspections of field legal offices

in the United States and overseas. They also attended and participated

in various bar association meetings and addressed many civic,

professional, and military organizations.

THE AIR FORCE COURT OF CRIMINAL APPEALS

The Court underwent a number of changes during this year. Chief

Judge Richard D.S. Dixon, II, retired from military service after 30

years in the Air Force and over 5 years as Chief Judge. Colonel Richard

F. Rothenburg assumed the mantle of Chief Judge on April 1, 1997.

The process begun under Chief Judge Dixon, of reducing the Court’s

backlog was completed, with cases completing review in record time. 

With the elimination of the backlog, the Court’s output has decreased by

25%. Of primary focus were over 150 cases reviewed by the Air Force

Court involving application of Articles 57a and 58b, UCMJ. The ex post

facto application of the law was ultimately resolved by the ruling of

the United Stated Court of Appeals for the Armed Forces in United States

v. Gorski. Post-trial errors continue to be a factor and, in addition

to the guidance in the Court’s written opinions, the Court has embarked

on a broader outreach program.

USAF JUDICIARY ORGANIZATION

The USAF Judiciary Directorate has responsibility for overseeing the

administration of military justice throughout the United States Air

Force, from nonjudicial proceedings to the appellate review of courtsmartial. Additionally, the Directorate has the staff responsibility of

the Air Force Legal Services Agency in all military justice matters

which arise in connection with programs, special projects, studies, and

inquiries generated by the Department of Defense (DoD), Headquarters

USAF, members of Congress, and various agencies. The Judiciary

Directorate consists of the Trial Judiciary Division, Government Trial

and Appellate Counsel Division, Appellate Defense Division, Trial

Defense Division, Military Justice Division, and the Clemency,

Corrections and Officer Review Division.

TRIAL JUDICIARY DIVISION

 The military judges’ duties include: presiding over all general

and special courts-martial tried in the United States Air Force; serving

as investigating officers under Article 32, UCMJ; legal advisors for

officer discharge boards and other administrative boards; and hearing

officers at public hearings held to consider draft environmental impact

statements. The Air Force Trial Judiciary had an average of 21 active

duty trial judges, 5 Reserve trial judges, and 11 noncommissioned

officers assigned throughout 5 judiciary circuits worldwide. During the

year, military judges averaged approximately 120 days on temporary duty

to perform these functions at locations other than their bases of

assignment. The Chief Trial Judge, his military judge assistant and, as
2

of late July 1997, one noncommissioned officer are assigned to the Trial

Judiciary headquarters. 

The Chief Trial Judge made supervisory visits to all three CONUS

circuits and both of the overseas circuits to review workload and

facilities. The Trial Judiciary now has a website, available to trial

judges. The website replaces The DICTA, which was previously published

on a quarterly basis.

The Twenty-Third Interservice Military Judges’ Seminar was

conducted by the Trial Judiciary at The Air Force Judge Advocate

General’s School, Maxwell AFB, Alabama, from 27 April to 2 May 1997. 

This seminar was attended by 70 military judges from the trial

judiciaries of the Army, Navy, Marine Corps, Coast Guard, and the Air

Force, and by the Chief Military Trial Judge of the Canadian Forces.

In June 1997, six military judges attended the Special Problems in

Criminal Evidence Course at the National Judicial College, Reno, Nevada,

and one judge attended the Managing Trials Effectively Course, also at

the National Judicial College in Reno. Seven trial judges attended the

three-week Military Judges’ course conducted by The Army Judge Advocate

General’s School in Charlottesville, Virginia, from 12 through 30 May

1997. Finally, each of the judicial circuits conducted two or three-day

educational workshops during the year. All workshops were held in

conjunction with trial and defense counsel workshops for the respective

circuits; the Chief Trial Judge attended and participated in the

European, Pacific, Eastern, and Central Circuit workshops. 

The former Chief Trial Judge, Colonel (Ret.) James E. Heupel,

attended both the mid-year and annual meetings of the American Judges

Association. The new Chief Trial Judge, Colonel Michael B. McShane,

arrived in July 1997, and attended the annual meeting of the American

Judges Association as well as the annual meeting of the American Bar

Association where he was named to the Executive Committee of the

National Conference of Special Court Judges. These interactions with

civilian judges are most beneficial in promoting a greater mutual

understanding of the military and civilian justice systems and the roles

of military and civilian judges.

GOVERNMENT TRIAL & APPELLATE COUNSEL DIVISION

Appellate Government Counsel

The appellate government counsel review records of trial of

courts-martial, analyze legal issues, and write legal briefs presenting

the position of the United States. They argue the Government’s position

before the Air Force Court of Criminal Appeals and the United States

Court of Appeals for the Armed Forces. They also advise prosecutors

throughout the Air Force on trial strategy and recent developments in

the law.

The appellate government counsel continued to manage the Advocacy

Continuing Education (ACE) Program. In the last fiscal year, a web page

dedicated to the ACE program was created and placed on the FLITE server

at Maxwell AFB. Ready access to this material benefits trial counsel

worldwide. Hard copies of ACE materials continue to be distributed. 
3

Easy access to this material supplements the briefings provided at both

the Trial and Defense Advocacy Course (TDAC), the Advanced Trial and

Defense Advocacy Course (ATAC), and the Major Command Staff Judge

Advocate Conferences.

Appellate government counsel contributed to “Project Outreach,”

sponsored by USCAAF and the AFCCA, by conducting oral arguments before

audiences at the United States Air Force Academy and Howard University

Law School, demonstrating the fairness and professionalism of the

military justice system.

The Chief, Government Trial and Appellate Counsel Division and one

appellate government counsel attended trial counsel workshops in all

five judicial circuits. They participated in the workshops as

instructors and seminar participants.

Four reserve judge advocates, assigned as appellate counsel,

continued to provide excellent support. In addition to preparing

written briefs, two of the reserve counsel presented oral argument

before the Court of Appeals for the Armed Forces during the fiscal year.

Appellate practice before USCAAF and AFCCA is cyclic as indicated

below.

AFCCA FY 95 FY 96 FY 97

Briefs Filed 412 329 434

Cases Argued 33 27 22

USCAAF FY 95 FY 96 FY 97

Briefs Filed 71 80 85

Cases Argued 33 52 58

SUPREME COURT FY 95 FY 96 FY 97

Petition Waivers Filed 24 4 15

Briefs Filed 2 0 0

Circuit Trial Counsel

During the fiscal year 1997, there were 15 Circuit Trial Counsel

(CTC) divided equally between three circuit offices in CONUS. 4 other

CTCs covered the Pacific and European theaters, two per theater. CTCs

tried 259 general courts-martial or 48% of all general courts-martial. 

In addition, CTCs tried 33 special courts-martial and represented

government interests in eight of the nine officer discharge boards held

Air Force wide. Several CTCs attended the Criminal Law New Developments

Course at the Army JAG School in Charlottesville, Virginia. Workshops

for base-level prosecutors were conducted by the CTCs in all five

judicial circuits; CTCs also conducted one-on-one training of assistant

trial counsel during pretrial case preparation and trials. CTCs also

utilized their talents by teaching as adjunct instructors at the Trial

and Defense Advocacy Course (TDAC) and the Advanced Trial and Defense

Advocacy Course (ATAC). 
4

APPELLATE DEFENSE COUNSEL DIVISION

The Appellate Defense Division provide appellate defense services

for military personnel. This includes assistance to appellants at all

stages of the appellate process which extends to submission of written

briefs and conducting oral arguments before military appellate

tribunals and the U.S. Supreme Court.

 

 In response to a petition filed by the United States Solicitor

General, the United States Supreme Court granted certiorari in the case

of United States v. Scheffer. This was the first Air Force case to be

granted review by the Supreme Court. The division filed its Brief for

the Respondent in August 1997.

 

 The division continued to provide appellate updates to counsel in

the field through Circuit Defense Counsel Workshops. In addition,

appellate counsel taught new Area Defense Counsel at Area Defense

Counsel Orientation Courses.

 

 During this period, the division filed its brief to the Court of

Appeals for the Armed Forces in the case of United States v. Simoy, the

only Air Force death penalty case currently on appeal.

The following figures reflect the division’s workload over fiscal

year 1997:

AFCCA

Cases Reviewed 505

Oral Arguments 22

Other Motions 191

USCAAF

Supplement to Petitions 527

Grant Briefs 85

Oral Arguments 58

Other Motions 111

Supreme Court

Petitions 13

Briefs in Opposition 2

Briefs on the Merits 1

TRIAL DEFENSE DIVISION 

The Trial Defense Division is responsible for providing legal

defense services within the Air Force to all Air Force members and, in

certain cases, civilian employees of the Air Force and members of the

other Armed Forces through Area Defense Counsel (ADC), Defense

Paralegals (DP), Circuit Defense Counsel (CDC), and Chief Circuit

Defense Counsel (CCDC). They report to the Chief, Trial Defense

Division, who in turn reports directly to the Director, USAF Judiciary.
5

Defense counsel assigned to the Division represent military

members in interrogation situations; UCMJ Article 32 investigations;

pretrial confinement hearings; summary, special, and general courtsmartial; and all post-trial and clemency matters. They also serve as

respondents' counsel in involuntary discharge, demotion, and nonjudicial

punishment proceedings; flying evaluation, physical evaluation, and

medical credentials boards; and various, other adverse personnel

actions. Overseas-assigned counsel act as military legal advisors in

foreign jurisdiction cases as well.

As has been the case for the past several years, the Trial Defense

Division continued its realignment of personnel and offices, In July

1997, the ADC offices and personnel at both Wright-Patterson AFB OH and

Scott AFB IL were realigned from the Central Circuit to the Eastern

Circuit. This move will improve span of control in the Central Circuit

and the balance among the CONUS circuit offices.

Additionally, in July 1997, the Division opened a new office at

Los Angeles AFB CA, adding both an ADC and a DP to the rolls. In

August, the Andrews AFB MD office added one attorney, bringing that

office to two ADCs and one DP.

As of 30 September 1997, the Division had 81 ADCs stationed at 70

installations worldwide. They received support from 70 DPs. Spread

throughout the 5 circuits were 21 CDCs and 5 CCDCs. The CCDCs, along

with all but four of the CDCs, were stationed at the circuit offices at

Bolling AFB, DC; Randolph AFB, TX; Travis AFB, CA; Ramstein AB, Germany;

and Yokota AB, Japan.

One of the most welcomed personnel developments in many years was

the approval by the commander, Air Force Legal Services Agency, of the

assignment of a Defense Paralegal to the Office of the Chief, Trial

Defense Division, in July 1997. Due to the large number of bases and

paralegals assigned to the Division, this paralegal has proven to be

invaluable in assisting in the management of a formidable legal and

administrative workload. 

Trial defense counsel training remained one of the division’s

highest priorities. This training includes periodic ADC Orientation

Courses for new ADCs and annual one-week workshops at each of the

circuits. The Division also provided adjunct faculty members for the

Trial and Defense Advocacy Course and the Advanced Trial Advocacy

Course, both of which are conducted at The Air Force Judge Advocate

General School, Maxwell AFB, AL. In addition, on-the-job training was

continuously conducted by CDCs and CCDCs. 

MILITARY JUSTICE DIVISION

The Military Justice Division prepares opinions and policy

positions for The Judge Advocate General and for the Air Force Board

for Correction of Military Records. They also assemble reports on

military justice requested by the White House, Congress, DoD and the

Air Staff. The division chief represents the Air Force on the Joint

Service Committee on Military Justice (JSC).

During the course of the past year, the Military Justice Division

served as the action agency for the review of military justice issues on
6

applications submitted to the Air Force Board for Correction of Military

Records. The Division provided 102 formal opinions concerning such

applications. They also received 1,406 inquiries in specific cases

requiring either formal written replies or telephonic replies to senior

officials, including the President and members of Congress. Finally,

the Military Justice Division provided representatives to all

interservice activities involving military justice and support for the

Code Committee. The Military Justice Division also reviewed 88 records

of trial for review under Article 69, UCMJ.

CLEMENCY, CORRECTIONS & OFFICER REVIEW DIVISION

The primary responsibilities of the Clemency, Corrections and

Officer Review Division are to (1) recommend appropriate disposition of

statutorily required sentence review actions by the Secretary of the Air

Force in officer and cadet dismissal cases; (2) recommend action by The

Judge Advocate General or the Secretary of The Air Force, as

appropriate, to effect statutorily authorized clemency for members of

the Air Force under court-martial sentence; (3) represent The Judge

Advocate General on the Air Force Clemency and Parole Board; (4) make

recommendations for the Secretary of the Air Force to the Attorney

General on Presidential Pardon applications by court-martialed Air Force

members; and (5) advise The Judge Advocate General and Security Force

Command on corrections issues.

Confinement

At the end of fiscal year 1997, a total of 429 Air Force personnel

were in post-trial confinement. Of those, 232 inmates were in long-term

confinement at the United States Disciplinary Barracks (USDB), Fort

Leavenworth, Kansas, and 18 are serving time in the Federal Bureau of

Prisons (BOP) system. There were nine inmates in the Return-to-Duty

Rehabilitation (RTDR) Program, with five graduating and being returned

to duty during this period. The number of Air Force inmates on parole

at the end of fiscal year 1997 was 132, a seven percent decrease from

last fiscal year.

AIR FORCE JUDGE ADVOCATE GENERAL SCHOOL

The Air Force Judge Advocate General School (AFJAGS), is one of

seven professional continuing education schools organizationally aligned

as part of Air University's Ira C. Eaker College for Professional

Development at Maxwell Air Force Base, Alabama. The William L.

Dickinson Law Center is home to the school, and the David C. Morehouse

Center supports Paralegal Studies. The AFJAGS conducts legal education

for attorneys and paralegals from all military services; provides

instruction at other Air University schools and colleges; publishes The

Reporter and The Air Force Law Review; manages HQ USAF's Preventive Law

Clearinghouse; and maintains JAG Department liaison with civilian

professional organizations, law schools, and states requiring continuing

legal education.
7

Resident Courses

The AFJAGS conducted some 50 classes in-residence covering nearly

30 different courses (some courses are held more than once a year),

which were attended by approximately 3,600 students. Courses, seminars,

and workshops conducted at the AFJAGS included:

Advanced Environmental Law

Advanced Labor and Employment Law

Advanced Trial Advocacy

Claims and Tort Litigation

Deployed Air Reserve Components Operations and Law

Environmental Law

Environmental Law Update

Federal Employee Labor Law

Federal Income Tax Law

International Law

Judge Advocate Staff Officer

JAG Family Team Building

Law Office Managers’

Legal Aspects of Information Operations

Military Judges’

Operations Law

Paralegal Apprentice

Paralegal Craftsman

Reserve Component WebFLITE

Reserve Forces Judge Advocate

Reserve Forces Paralegal

Staff Judge Advocate

Trial and Defense Advocacy

Included in this curriculum, were four “Surveys of the Law”

conducted by the AFJAGS for both judge advocates and paralegals in the

reserve components. The surveys are conducted at a civilian conference

center in Denver, Colorado. The surveys provide concentrated legal

updates and include extensive reviews of recent developments in military

justice. During fiscal year 1997, over 600 Reserve and Air National

Guard judge advocates and paralegals attended an AFJAGS Survey of the

Law. In addition, the resident course figures reflect two “road shows”

put on by AFJAGS in EUCOM and PACOM to update overseas bases on a host

of legal topics, including military justice and professional ethics.

Distance Learning Courses

The AFJAGS utilizes distance learning for those educational

offerings that lend themselves to effective teaching through this

medium. The school presented two courses, the Air Force Systems and

Logistics Contracting Course and the Fiscal Law Course via teleseminar

(satellite downlink) to over 50 locations attended by more than 2000

personnel. In addition, the 5-skill level Paralegal Journeyman Course

is offered as a non-resident, distance learning course in both paperbased and CD-ROM versions. The CD-ROM version is the first career

development course in Air Force history to be offered in multimedia CD

format.
8

Outside Teaching

In addition to the resident courses, the AFJAGS faculty provided

military justice instruction in the following colleges, schools,

academies, and courses within Air University: Air War College, Air

Command and Staff College, Squadron Officer School, College of Aerospace

Doctrine, Research, and Education, International Officer School, Officer

Training School, USAF First Sergeant Academy, Senior Noncommissioned

Officer Academy, Group Commanders' Course, and the Chaplain Orientation

Course. 

The AFJAGS participated in the Expanded International Military

Education and Training Program (E-IMET), one of several Security

Assistance Programs mandated by Congress (22 U.S.C. 2347). The program

is designed to further U.S. foreign policy goals as established in the

Foreign Assistance Act. The E-IMET Program involves joint U.S. military

teaching teams sent abroad to teach human rights, military justice,

civilian control of the military, law of armed conflict, rules of

engagement, and general democratic principles. Faculty from the AFJAGS

continued to participate in a number of E-IMET program missions in

fiscal year 1997.

Publications

The school published three issues of The Air Force Law Review, a

professional legal journal consisting of articles of interest to Air

Force judge advocates, civilian attorney advisors, and other military

lawyers. The Law Review is a scholarly publication that encourages

frank discussion of relevant legislative, administrative, and judicial

developments. Additionally, four issues of The Reporter, the JAG

Department's quarterly legal publication containing articles of general

interest, were distributed in March, June, September, and December. 

Each issue of The Reporter has two sections dedicated to contemporary

military justice issues. A third section addresses ethical issues that

have surfaced in the military justice context. The school continued to

distribute substantial numbers of its most popular publication, The

Military Commander and the Law, a 500+ page compendium of legal topics

addressing the issues confronting today's Air Force commanders. In

fiscal year 1997, it was placed on WebFLITE, a service available to

military users, where it was revised every six months.

PERSONNEL

As of 30 September 1997, there were 1315 judge advocates on duty.

Company grade officers (captains and first lieutenants) made up almost

50% of that number. Almost 10% were colonels and above, including two

major generals and three brigadier generals; 25% were majors and the

remaining 13%, lieutenant colonels.

BRYAN G. HAWLEY

Major General, USAF

The Judge Advocate General
Page 1 of 2

APPENDIX - U. S. AIR FORCE MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 1997

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 527 489 38 +2%

BCD SPECIAL [A] 178 178 0 -1%

NON-BCD SPECIAL 227 202 25 +3%

SUMMARY 70 69 1 +55%

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

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 87

 NUMBER OF BAD-CONDUCT DISCHARGES 283

SPECIAL COURTS-MARTIAL ( SA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 178

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 432

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 181

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 88

PART 4 – WORKLOAD OF THE U.S. AIR FORCE COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 308

 GENERAL COURTS-MARTIAL 231

 BCD SPECIAL COURTS-MARTIAL 77

REFERRED FOR REVIEW 657

 GENERAL COURTS-MARTIAL 469

 BCD SPECIAL COURTS-MARTIAL 188

TOTAL CASES REVIEWED 597

 GENERAL COURTS-MARTIAL 429

 BCD SPECIAL COURTS-MARTIAL 168

TOTAL PENDING AT CLOSE OF PERIOD 368

 GENERAL COURTS-MARTIAL 271

 BCD SPECIAL COURTS-MARTIAL 97

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

REVIEWED DURING LAST REPORTING PERIOD -25%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. AIR FORCE COURT OF CRIMINAL APPEALS (CCA)

NUMBER 595

PERCENTAGE 99.8%

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 527/597 88%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD +4%

PERCENTAGE OF TOTAL PETITIONS GRANTED 247/527 47% [B]

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD + 39%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA 247/597] 41%

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

LAST REPORTING PERIOD 34%
Page 2 of 2

APPENDIX - U.S. AIR FORCE MILITARY JUSTICE STATISTICS - CONT’D

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 4

RECEIVED 10

DISPOSED OF 14

 GRANTED 1

 DENIED 12

 NO JURISDICTION 1

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 0

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 300

SPECIAL COURTS-MARTIAL 236

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 227

SPECIAL COURTS-MARTIAL 169

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 21

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 370,732

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 8,481

RATE PER 1,000 22.87

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD -0.74

EXPLANATORY NOTES

 

[A] SPCMs in which BCD is adjudged.

[B] Includes petitions granted in “automatic forfeitures” cases involving Article 58b, UCMJ. U.S. v. Gorski, 47 M.J. 370

 (1997).
REPORT OF THE CHIEF COUNSEL OF THE COAST GUARD

OCTOBER 1, 1996 TO SEPTEMBER 30, 1997

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

and filed at Coast Guard Headquarters during FY-97 and the five

preceding years.

Fiscal Year 97 96 95 94 93 92

General Courts-Martial 6 22 11 9 14 16

Special Courts-Martial 9 16 8 23 31 26

Summary Courts-Martial 10 14 14 15 11 25

Total 25 52 33 47 56 67

COURTS-MARTIAL

Attorney counsel were detailed to all special courts-martial.

Military judges were detailed to all special courts-martial. For most

cases, the presiding judge was the Chief Trial Judge, a full-time

general courts-martial judge. When the Chief Trial Judge was

unavailable, military judges with other primary duties were used for

special courts-martial. Control of the detail of judges was centrally

exercised by the Chief Trial Judge and all requirements were met in a

timely fashion.

GENERAL COURTS-MARTIAL

Two of the 6 accused tried by general courts-martial this fiscal

year were tried by military judge alone. One of the 2 accused tried

by military judge alone received a dishonorable discharge and 1

received a bad-conduct discharge. Two of the 4 accused tried by

general courts-martial with members received sentences which included

a punitive discharge. Two accused elected to be tried by general

courts-martial which included enlisted members and 2 accused elected

to be tried by a court which included only officer members. All of

the general courts-martial resulted in convictions. Two of the

accused whose charges were referred to general courts-martial were

nonrated (pay grades E-1 through E-3), 3 were petty officers (pay

grades E-4 through E-6), and 1 was a chief petty officer (pay grade E7).

The following is a breakdown of the sentences adjudged in general

courts-martial tried by military judge alone (2 convictions):
2

Sentence Cases Imposed

dishonorable discharge - - - - - - - - - - - - - - - - - - - 1

bad conduct discharge - - - - - - - - - - - - - - - - - - - - 1

confinement - - - - - - - - - - - - - - - - - - - - - - - - - 2

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 2

forfeiture of all pay and allowances - - - - - - - - - - - - 1

The following is a breakdown of sentences adjudged in general

courts-martial tried by members (4 convictions).

Sentence Cases Imposed

confinement - - - - - - - - - - - - - - - - - - - - - - - - - 4

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 3

fined ($12,000.00)- - - - - - - - - - - - - - - - - - - - - - 3

forfeiture of all pay and allowances - - - - - - - - - - - - 1

The following indicates the four sentences imposed most by general

courts-martial in the past five fiscal years.

 Punitive

 Number of Reduction Discharge/

FY Convictions Forfeitures Confinement in Grade Dismissal 

97 6 2 (33%) 4 (66%) 5 (83%) 4 (66%)

96 22 15 (68%) 19 (89%) 20 (91%) 18 (82%)

95 11 6 (55%) 10 (91%) 9 (82%) 7 (64%)

94 7 1 (15%) 7 (100%) 6 (90%) 6 (90%)

93 14 7 (50%) 13 (93%) 11 (78%) 9 (64%)

The following table shows the distribution of the 152

specifications referred to general courts-martial.

Violation of the UCMJ, Article No. of Specs.

 80 (attempts) - - - - - - - - - - - - - - - - - - - - - - - 1

 86 (absence without leave)- - - - - - - - - - - - - - - - - 1

 92 (failure to obey order or regulation) - - - - - - - - - 4

107 (false official statement) - - - - - - - - - - - - - - - 30

112a (wrongful use, possession, etc. of controlled

 substances) - - - - - - - - - - - - - - - - - - - - - - 3

116 (riot or breach of peace) - - - - - - - - - - - - - - - 1

120 (rape or carnal knowledge) - - - - - - - - - - - - - - - 2

121 (larceny or wrongful appropriation) - - - - - - - - - - 33

123 (forgery) - - - - - - - - - - - - - - - - - - - - - - - 18

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

 without sufficient funds) - - - - - - - - - - - - - - - 4

128 (assault)- - - - - - - - - - - - - - - - - - - - - - - - 2

129 (burglary) - - - - - - - - - - - - - - - - - - - - - - - 2

130 (housebreaking - - - - - - - - - - - - - - - - - - - - - 3

134 (general) - - - - - - - - - - - - - - - - - - - - - - - 48
3

GENERAL COURTS-MARTIAL SUMMARY

Sixty-six per cent of the accused tried by general courts-martial

were tried by military judge alone. There was a 73% decrease in

general courts-martial records received and filed at Coast Guard

Headquarters in this fiscal year over last fiscal year.

SPECIAL COURTS-MARTIAL

Eight of the 9 accused tried by special courts-martial this fiscal

year were tried by military judge alone. Five bad-conduct discharges

were adjudged, all by the military judge. One accused elected to be

tried by a court which included enlisted members. Two of the accused

whose charges were referred to special courts-martial were nonrated

(pay grades E-1 through E-3), 5 were petty officers (pay grades E-4

through E-6), and 2 were chief petty officers (pay grade E-7).

The following is a breakdown of sentences adjudged in special

courts-martial tried by military judge alone (8 convictions).

Sentence Cases Imposed

bad-conduct discharge - - - - - - - - - - - - - - - - - - - - 5

confinement - - - - - - - - - - - - - - - - - - - - - - - - - 6

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 8

partial forfeiture of pay - - - - - - - - - - - - - - - - - - 4

restriction - - - - - - - - - - - - - - - - - - - - - - - - - 2

reprimand - - - - - - - - - - - - - - - - - - - - - - - - - - 2

hard labor without confinement - - - - - - - - - - - - - - - 1

fined (total fines $10,350.00) - - - - - - - - - - - - - - - 2

The following is a breakdown of sentences adjudged in special

courts-martial tried by members (one conviction).

Sentence Cases Imposed

hard labor without confinement - - - - - - - - - - - - - - - 1

reprimand - - - - - - - - - - - - - - - - - - - - - - - - - - 1

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 1

restriction - - - - - - - - - - - - - - - - - - - - - - - - - 1

The following shows the four sentences imposed most by special

courts-martial in the past five fiscal years.

 Number of Reduction

FY Convictions Forfeitures Confinement in Grade BCD 

97 9 4 (44%) 6 (66%) 8 (88%) 5 (55%)

96 14 11 (79%) 10 (71%) 13 (93%) 7 (50%)

95 7 3 (43%) 5 (71%) 6 (86%) 2 (29%)

94 20 6 (30%) 17 (85%) 20 (100%) 11 (55%)

93 27 8 (29%) 19 (70%) 20 (74%) 14 (52%)
4

The following table shows the distribution of the 86

specifications referred to special courts-martial.

Violation of the UCMJ, Article No. of Specs.

 86 (unauthorized absence)- - - - - - - - - - - - - - - - - 6

 90 (assaulting or willfully disobeying a superior

 commissioned officer) - - - - - - - - - - - - - - - - - 1

 91 (insubordinate conduct toward warrant officer,

 noncommissioned officer, or petty officer) - - - - - - 7

 92 (failure to obey order or regulation) - - - - - - - - - 10

107 (false official statements) - - - - - - - - - - - - - - 1

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

 disposition of military property of the U.S.)- - - - - 1

112a (wrongful use, possession, etc., of controlled

 substance) - - - - - - - - - - - - - - - - - - - - - - 13

120 (rape and carnal knowledge) - - - - - - - - - - - - - - 4

121 (larceny or wrongful appropriation) - - - - - - - - - - 11

123 (forgery) - - - - - - - - - - - - - - - - - - - - - - - 5

128 (aggravated assault)- - - - - - - - - - - - - - - - - - 5

129 (burglary) - - - - - - - - - - - - - - - - - - - - - - 1

134 (general) - - - - - - - - - - - - - - - - - - - - - - - 21

SPECIAL COURTS-MARTIAL SUMMARY

Eighty-eight per cent of the accused tried by special courtsmartial were tried by military judge alone. Eleven per cent of these

accused pled guilty to all charges and specifications. None of the

accused tried by special courts-martial with members pled guilty to

all charges and specifications. There was a 35% decrease in special

courts-martial received and filed at Coast Guard Headquarters this

fiscal year over last fiscal year.

CHIEF COUNSEL ACTION UNDER ARTICLE 69, UCMJ

In addition to the required reviews of courts-martial

conducted as a result of petitions filed under Article 69, UCMJ,

a discretionary review was conducted under Article 69 of all courtsmartial not requiring appellate review.

PERSONNEL, ORGANIZATION, AND TRAINING

The Coast Guard has 164 officers designated as law specialists

(judge advocates) serving on active duty - 121 are

serving in legal billets and 43 are serving in general duty

billets. Eighteen Coast Guard officers are currently undergoing

postgraduate studies in law and 18 will be certified as law

specialists at the completion of their studies. Eleven Coast

Guard officers who recently graduated from law school or were directcommission officers completed the Navy Basic Lawyer Course in Newport,

Rhode Island. All have been or are in the process of being certified
5

under Article 27(b), UCMJ. Over $100,000.00 was spent on legal

training during the fiscal year.

U. S. COAST GUARD COURT OF CRIMINAL APPEALS

Captain Lane I. McClelland, former Chief Trial Judge for the

Coast Guard, was assigned to the Coast Guard Court of Criminal Appeals

in June 1997, and is the first woman to serve on this Court. At the

close of fiscal 1997, the Court consisted of the following judges:

Chief Judge Joseph H. Baum

Judge David J. Kantor

Judge Ronald R. Weston

Judge Lane I. McClelland

Issues challenging the status of this Court, first raised in 1992

with a challenge to the appointment of all military appellate judges,

and continuing after the decisions of Weiss v. United States,

__U.S.__, 114 S. Ct. 752 (1994) and Ryder v. United States, __U.S.__,

115 S. Ct. 2031 (1995), with questions concerning the appointment of

this Court’s civilian judges, were finally resolved by the U.S.

Supreme Court in Edmond v. United States, __U.S.__, 117 S. Ct. 1573

(1997), with a holding that the appointment of civilian judges to this

Court by the Secretary of Transportation was valid both

Constitutionally and statutorily.

In addition to the decisional work of the Court, as reflected in

Appendix A, the judges on the Court have participated in various

professional conferences, committees and seminars during the past

fiscal year. In March 1997, the Coast Guard Court co-hosted with the

Navy-Marine Corps Court this year’s all services appellate military

judges conference at the Federal Judicial Center in Washington, D.C.

The focus of this one-day conference was a presentation by Chief Judge

B. Paul Cotter of the Nuclear Regulatory Commission on electronic

technology available for appellate courts. A panel of commissioners

from the Court of Appeals for the Armed Forces also made a

presentation on the workings of that Court, which was followed by

breakout sessions with judges and commissioners discussing a variety

topical issues.

In May 1997, all the judges of the Court attended the two-day

Judicial Conference of the U.S. Court of Appeals for the Armed Forces

at George Washington University. Also in May, Judge Fearnow

represented the Court on a panel of Court of Criminal Appeals Judges

as part of the instruction for the 40th Military Judges Course at the

Army Judge Advocate General’s School in Charlottesville, Virginia.

This was one of Judge Fearnow’s last official acts as an appellate

military judge before his retirement at the end of June 1997.

In September of 1997, Judges Kantor, Weston and McClelland

attended a two-day Appellate Military Judges Training Seminar at the
6

Washington Navy Yard. This seminar is a continuation of the highly

successful appellate military judges program created expressly for the

military appellate courts by Chief Judge Frank Nebeker of the Court of

Veterans Appeals and first held in 1993. This year’s seminar was

hosted by the Navy-Marine Corps Court and featured presentations on

judicial philosophy, evidence issues, opinion writing, judicial

ethics, and war crimes prosecutions. A panel of Court of Criminal

Appeals Chief Judges and Senior Judges, chaired by Chief Judge Baum of

this Court, led a discussion with the attendees of various subjects

relevant to court of criminal appeals judges. At lunch, Chief Judge

Cox of the U.S. Court of Appeals for the Armed Forces spoke to

attendees on matters of concern to that Court and of particular

interest to the service courts. As indicated in previous reports,

this highly beneficial seminar is now an annual event for both new and

experienced judges and will be hosted next year by the Army Court.

This past year, Chief Judge Baum served another term as a member

of the rules advisory committee of the U.S. Court of Appeals for the

Armed Forces, working on proposed rule changes for that Court. He

also continued to play an active role in the Federal Bar Association,

as both a member of the association’s National Council and as Chair of

the association’s Judiciary Division for the second year. Under his

chairmanship, the Judiciary Division held its annual reception at the

U.S. Supreme Court in November to honor newly appointed judges, after

presenting an informative bench/bar program earlier that same day at

the Federal Judicial Center. Later, in the spring, the Division

hosted a reception for foreign judges attending a conference of

common-law country judges at the Federal Judicial Center. Chief Judge

Baum, as Chair of the Judiciary Division, also participated this year

in two separate presentations to visiting Russian and Chinese judges.

ADDITIONAL MILITARY JUSTICE STATISTICS

Appendix A contains additional basic military justice statistics

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

workload in various categories.

PAUL M. BLAYNEY

Rear Admiral, U. S. Coast Guard

Chief Counsel
Page 1 of 2

APPENDIX - U.S. COAST GUARD MILITARY JUSTICE STATISTICS

Report Period: 1 OCTOBER 1996 - 30 SEPTEMBER 1997

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 6 6 0 -73%

BCD SPECIAL 9 9 0 -35%

NON-BCD SPECIAL 0 0 0 UNCHANGED

SUMMARY 10 10 0 -28%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT -50%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 2

 NUMBER OF BAD-CONDUCT DISCHARGES 2

SPECIAL COURTS-MARTIAL ( SA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 5

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 6

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 9

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 1

PART 4 – WORKLOAD OF THE COAST GUARD COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 26

 GENERAL COURTS-MARTIAL 20

 BCD SPECIAL COURTS-MARTIAL 6

REFERRED FOR REVIEW 12

 GENERAL COURTS-MARTIAL 5

 BCD SPECIAL COURTS-MARTIAL 7

TOTAL CASES REVIEWED 25*

 GENERAL COURTS-MARTIAL 18

 BCD SPECIAL COURTS-MARTIAL 6

TOTAL PENDING AT CLOSE OF PERIOD 14

 GENERAL COURTS-MARTIAL 7

 BCD SPECIAL COURTS-MARTIAL 7

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

REVIEWED DURING LAST REPORTING PERIOD

25% increase over

FY96.

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. COAST GUARD COURT OF CRIMINAL APPEALS (CCA)

NUMBER 9

PERCENTAGE 100%

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 8/26 30%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -3%

PERCENTAGE OF TOTAL PETITIONS GRANTED 5/8 62%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD +29%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA 5/26 19%

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

LAST REPORTING PERIOD +9%

*Includes one Reconsideration of Decision.

NOTE: A BCD Special or BCD Special Court-Martial is a court-martial authorized to impose a BCD, whether or not

a BCD was imposed by the court-martial.
Page 2 of 2

APPENDIX - U.S. COAST GUARD MILITARY JUSTICE STATISTICS - CONT’D

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 1

RECEIVED 0

DISPOSED OF 1

 GRANTED 0

 DENIED 1

 NO JURISDICTION 0

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 0

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 2

SPECIAL COURTS-MARTIAL 8

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 4

SPECIAL COURTS-MARTIAL 1

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 3

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 34,341

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 845

RATE PER 1,000 24.60

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD +0.11%