INCLUDING SEPARATE REPO

of the 


U.S. COURT OF APPEALS FOR THE AR

THE JUDGE ADVOCATES GEN

OF THE U.S. ARMED FORCE

AND THE CHIEF COUNSE

OF THE U.S. COAST GUAR

For the Period 


October 1, 1995 to September 30

PROPERTY OF U.S. ARMY 

THE JUDGE ADVOCATE GENERAL

LIBRARY 
of the U.S. House of Represe

and to the 


SECRETARY OF DEFEN

SECRETARY OF TRANSPOR

and 


SECRETARIES OF TH

ARMY, NAVY, AND AIR FO

PURSUANT TO THE 


UNIFORM CODE OF MILITARY 

For the Period 


October 1, 1995 to September 3
REPORT OF THE JUDGE ADVOCATE GENER

ARMY 

REPORT OF THE JUDGE ADVOCATE GENER

NAVY 

REPORT OFTHE JUDGE ADVOCATE GENER

AIR FORCE 

REPORT OF THE CHIEF COUNSEL OF THE C
Justice, 10 use§ 946. 

The Code Committee met during fiscal year 

merous matters pertaining to the administra

Code of Military Justice. This meeting was op

interested attendees participated in the proce

mittee members from the Armed Forces presen

ing cases and trends in court-martial activity 

tive Armed Forces. Reports and discussions 

cerning various proposals to amend the Unifo

Justice and the Manual for Courts-Martial. O

ered by the Code Committee included the sup

counsel, the representation of military accuse

duction ofmistakes in the post-trial processing o

and the desirability of a unified judiciary in 

system. The Committee also discussed the pur

statutory responsibilities and reviewed the an

by the Department of Defense to various propo

tary justice which were under consideration b

Association. Finally, the Committee considere

judicial independence within the military justi

The Code Committee also welcomed three new 

orable Andrew S. Effron, who became a member 

Court ofAppeals for the Armed Forces on Augu

Fredric I. Lederer, who was appointed as a p

Code Committee by the Secretary of Defense 

and Eugene R. Fidell, Esquire, who was appoin

ber of the Code Committee by the Secretary of 

ber 1, 1996. 

Separate reports of the United States Cour

Armed Forces and the individual Armed For

items of special interest to the Committee on A
Associate Judge 

ANDREW S. EFFRON 

Associate Judge 

Major General MICHAEL J. NARDOTT

The Judge Advocate General ofthe Army 

Rear Admiral HAROLD E. GRANT, USN 

The Judge Advocate General ofthe Navy 

Major General BRYAN G. HAWLEY, US

The Judge Advocate General ofthe Air Force 

Rear Admiral PAUL M. BLAYNEY, USC

Chief Counsel, U.S. Coast Guard 

Brigadier General MICHAEL C. WHOLL

Director Judge Advocate Division 

Headquarters, United States Marine Corps 

Professor FREDRIC I. LEDERER 

Public Member 

EUGENE R. FIDELL, Esquire 

Public Member 

2 
THE BUSINESS OF THE CO

The number of cases carried over on the Co

at the end of fiscal year 1996 (379) reflected 

from the pending Petition Docket caseload at 

fiscal year. (See Appendix A.) This increase w

able to a significant increase in the number o

the Court during the current fiscal year (143

filings during the preceding fiscal year (1251)

However, the number of cases carried over on 

(73) reflected a decrease of 30% from the pen

caseload at the end of the prior fiscal year. (Se

number of oral arguments presented to the Co

of opinions released by the Court reflected a 

pared with these respective categories for the p

Appendices C and D.) 1

/ 

The average processing time from the date o

the date the Court granted such petition dec

the previous year. (See Appendix E.) However

a dramatic reduction of23% in the average proc

a grant and oral argument compared with the 

Appendix F.) There was some increase in the 

time between oral argument and release of a 

Master Docket and from the initial filing of a 

ance of a final decision on the Master Docket. 

and H.) However, the overall processing time 

disposition of a case on the Petition Docket w

1 Although not part of the business ofthe Court, it is 

year 1996 the Court was notified that petitions for wri

with the Supreme Court of the United States in 25 

which the Court issued a final decision. 
g pg p

During fiscal year 1996 the Court admitted 362 

tice before its Bar, bringing the cumulative tota

fore the Bar of the Court to 30,530. 

In addition to its workload report, the Court is 

that, on October 23, 1995, Judge Robert E. Wiss d

illness. Judge Wiss had joined the Court in Jan

to the very date on which his illness at last to

dedicated and hardworking member of the Cour

his good and ready sense of humor, his love ofthe 

tion to this Court were characteristics that will lon

ries of those fortunate enough to know him. Me

conducted by the Court on June 3, 1996, are rep

MJ CLIX. 

On August 1, 1996, Andrew S. Effron took the 

Judge of the United States Court ofAppeals for 

filling the vacancy created by the death of Judg

PUBLIC AWARENESS PROJ

(PROJECT OUTREACH) 

Pursuant to its practice established in 1988, th

several special sessions and heard oral argumen

outside its permanent Courthouse in Washingto

report period. This practice, known as "Project 

veloped as part of a public awareness program 

only the operation of a Federal appellate court 

tiveness and quality of the criminal justice sy

Forces of the United States. The Court conduc

ings, without objection of the parties, at the 

Harvard Law School, Cambridge, Massachusett

sity of America Columbus School of Law, Wash

4 
JUDICIAL VISITATIONS 

During fiscal year 1996, the Judges of the C

past practice and their ethical responsibility to 

the entire military criminal justice system, pa

sional training programs for military and civil

professional groups of judges and lawyers, an

judge advocates and commanders at various m

throughout the world. 

JUDICIAL CONFERENC

On May 9 and 10, 1996 the Court held its ann

ence in the Marvin Center, George Washingto

of Law, Washington, D.C. The Judicial Conf

certified for credit to meet the continuing lega

ments of various State Bars throughout the U

to assist both military and civilian practitioners 

professional skills necessary to practice befor

courts. The Conference opened with welcoming 

orable Walter T. Cox III, Chief Judge, United 

peals for the Armed Forces, followed by spe

Conference who included Dr. Jonathan Lur

United States Court ofAppeals for the Armed 

ofHistory, Rutgers University; Professor Paul G

ern University School of Law; Brigadier Gen

USA, Chief Judge, United States Army Court 

Mr. John Mackenzie, Solicitor at the Bar of Lo

fessor Stephen A. Saltzburg, George Washingt

ofLaw, Washington, D.C.; Professor Lee D. Sch

ter for Legal Education, University ofMiami S

sor Fredric I. Lederer, William and Ma

Williamsburg, Virginia; and Major William Ba
EUGENE R. SULLIVAN 

Associate Judge 

SUSAN J. CRAWFORD 

Associate Judge 

H.F. "SPARKY'' GIERKE 

Associate Judge 

ANDREW S. EFFRON 

Associate Judge 

2 The section of the annual report entitled "Significa

the Administration of Military Justice Within the Armed 

at Appendix K 

6 
CUMULATIVE FILINGS 

Master Docket .............................................

Petition Docket ...........................................

Miscellaneous Docket .................................

TOTAL .........................................................

CUMULATIVE TERMINATION

Master Docket .............................................

Petition Docket ...........................................

Miscellaneous Docket .................................

Total .............................................................

CUMULATIVE PENDING OCTOBER 

Master Docket .............................................

Petition Docket ...........................................

Miscellaneous Docket .................................

TOTAL .........................................................

OPINION SUMMARY 

PER 

CATEGORY SIGNED CURIAM 

Master Docket ................... 111 6 

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

Miscellaneous Docket·········.;..;.··~··=l___o"""---

TOTAL ................................ 112 6 
Granted petitions vacated ................ 0 Pe

Other disposition directed ...........=:....§._ Me

TOTAL ........................................... 175 TO

PENDING (MASTER DOCKET

Awaiting briefs ..............................................

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

Awaiting lead case decision (trailer case) ...

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

TOTAL ...........................................................

FILINGS (PETITION DOCKET

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

Petitions for new trial filed ............. : ............

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

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

Returned from Court of Criminal Appeals .

TOTAL ...........................................................

TERMINATIONS (PETITION DOC

Petitions for grant dismissed ......... 11 


Petitions for grant remanded .......... 3 Sig

Petitions for grant withdrawn ....... 11 Pe

Petitions for grant denied .......... 1201 


Petitions for grant granted .......... 125 


Other ................................................. 0 Me

TOTAL ......................................... 1351 TO

PENDING (PETITION DOCKET

Awaiting briefs ..............................................

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

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

TOTAL ...........................................................

8 
Petitions dismissed ........................... 1 P

Other ................................................. 0 M

TOTAL ............................................. 23 T

PENDING (MISCELLANEOUS DO

Awaiting briefs ...........................................

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

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

TOTAL ........................................................

RECONSIDERATIONS & REHE

BEGIN END 

PEND­ PENDCATEGORY ING FILINGS ING G

Master Docket ....... 0 9 3 

Petition Docket ...... 2 6 0 

Misc. Docket ..........._0____2___0___

TOTAL .................... 2 17 3 

MOTIONS ACTIVITY 

BEGIN END D

PEND- PENDCATEGORY ING FILINGS ING Granted 

All motions ......... 12 757 19 663 
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States, 510 US 163, 114 S. Ct 752, 127 L.Ed2d 

held that the judge was an inferior officer who 

by the Secretary and, thus, he did not have to 

President of the United States and confirmed b

Senate. The Court further held that such appo

consistent with the responsibilities of the Judg

under Article 66, Uniform Code of Military Ju

as that officer "assigned" rather than "appointed

of Criminal Appeals. 

JURISDICTION 

The Court held in United States v. Kohut, 44 

a Navy regulation, which set forth a procedure 

Advocate General was authorized to approve e

tial jurisdiction over an accused for offenses wh

in a state court, did not divest a court-martial 

such approval had not been obtained. The Co

the Uniform Code of Military Justice the cour

rized to exercise jurisdiction in the case and th

question only stated policy and did not confer a

protect an accused. Thus, the Court held that 

not divest the court-martial of its statutory jur

tion of whether the loss of retirement benefits 

gible officer who was sentenced to a dismissa

was invalid was addressed by the Court in Unit

45 MJ 207 (1996). Therein the Court observed 

1 This section of the Court's annual report is prepar

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

reader to assist in easily locating cases of particular in

The case summaries are not of precedential value and 

briefs filed with the Court. 

20 
where the Judge Advocate General certified su

The Court held that the Government had a ri

for extraordinary relief under the All Writs Ac

citing Dettinger v. United States, 7 MJ 216 (CM

further noted under the provisions ofArticle 6

Court shall review "all cases reviewed by a C

peals which" are submitted to the Court by th

Advocate General. The Court then held that 

by ruling that subpoenas issued under 12 USC

istrative because they were issued by a trial co

within the context of the military justice syste

functions parallel the functions of the clerk 

States District Court. Thus, the Court further 

poenas were judicial in character and, therefo

the court-martial involved should have ruled o

the subpoenas in question. 

CAPITAL PUNISHMEN

The Court affirmed a sentence of death in Un

44 MJ 106 (1996), in a lengthy opinion which 

issues raised by the accused. 2

/ Therein the C

on appeal that the accused had been denied e

counsel, including a claim at the appellate lev

sel should have presented an abused child p

rather than the racial discrimination theory 

presented at the trial level. The Court, after as

2 In its 1997 Term the Court reconsidered and rev

sentence in this case on the ground that the accused w

tance of counsel during his sentencing hearing. 46 MJ 
In United States v. Scheffer, 44 MJ 442 (1996), 

the issue ofwhether the results of polygraph ex

absolutely excluded from courts-martial as s

Rule of Evidence 707. Noting that the Court ha

United States v. Gipson, 24 MJ 246 (CMA 19

accused was entitled to attempt to lay a founda

bility of favorable polygraph evidence, the Co

accused testified, that the per se exclusion of 

under Military Rule of Evidence 707 was uncon

lated the Sixth Amendment. The Court rul

accused's credibility was attacked, he was ent

nity to attempt to lay a foundation for the admi

polygraph evidence under the standard of Dau

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct

469 (1993). The Court also ruled in related c

accused tenders an ex parte polygraph examin

judge may require such accused to submit to 

graph examination, and that where a conflict 

polygraph examiners is anticipated, such conf

the probative value of such evidence. United S

MJ 453 (1996), and United States v. Nash, 44 M

OTHER EVIDENCE ISSU

The Court held in United States v. Taylor, 44 

a military judge had erred by prohibiting the 

fense evidence ofintervening negligence where 

homicide was involved. Rejecting the Governm

medical malpractice only breaks the chain of 

substantial or the sole cause of death, the C

standard only applied where an accused inflict

22 
The Court rejected a defense claim in United 

MJ 223 (1996), that an accused was not crimi

the use of drugs as a drug addict where such 

after his performance as a government drug in

held that its earlier decision in United States 

240 (1990), did not preclude this prosecution o

accused's activities were lawful because that ca

blanche immunity to one-time police informan

VOLUNTARY INTOXICAT

In United States v. Hensler, 44 MJ 184 (1996)

while an accused raised the defense of involun

to the first of several episodes of drinking and 

defense was not available for subsequent imp

the accused was put on notice that she acted 

consumption of alcohol. 

ARTICLE 31 RIGHTS 

In United States v. Oxfort, 44 MJ 337 (1996), 

the requirement in 18 USC § 793 (e) for some

classified materials without proper authorizat

to an authorized person did not violate Article 

Fifth Amendment since the act of delivering 

testimonial significance and, thus, was not c

The Court rejected a defense argument in Uni

MJ 403 (1996), that Article 31, UCMJ, pre

conviction ofperjury resulting from testimony 

UCMJ, investigation since such investigation 

ceeding" rather than a disciplinary or law enfo

and, therefore, Article 31 warnings were not 

also held that an Article 32 investigation was 

lent of a grand jury for purposes of determi
since the offense of communicating a threat did n

ernment to prove that the accused actually ent

expressed in the utterance. 

ATTORNEY/CLIENT PRIVIL

Interpreting the requirements of confidentia

torney and a client as set forth in Military Ru

the Court held in United States v. Godshalk, 44 M

under circumstances where an individual threat

was no breach of confidentiality between an att

dividual since there was an imminent-death exc

confidentiality. 

RESTRICTION 

In United States v. Perez, 45 MJ 323 (1996), t

the requirements of United States v. Rexroat, 

which mandate a hearing by impartial magist

within 48 hours ofordering an individual into pr

did not apply to pretrial restriction. The Court 

like confinement, commanders may restrict ser

variety of nonjudicial reasons, i.e., to ensure r

for duty, compliance with orders, or otherwise. H

emphasized that existing rules and procedures 

remedies for service members against unconstitu

of liberty as far as such deprivations relate to r

SPEEDY TRIAL 

Interpreting a recent change to RCM 707, Man

tial, 1984 (Change 5, effective July 6, 1991), w

parameters ofexcludable delay when computing 

24 
The Court held in United States v. Kelly, 45 

Court ofCriminal Appeals had no authority to 

decisions because it concluded that the basis 

sions (United States v. Mack, 9 MJ 300 (1980) 

Booker, 5 MJ 238 (1997)) had been eroded d

cumstances which warranted departure from 

States v. Allbery, 44 MJ 226 (1996), the Cour

mediate appellate court should rather expre

urge the Court to reconsider its precedent. Th

regard that "[t] he driving force behind the fir

in Allbery-which we reiterate here-has nothi

ego; rather, it has everything to do with judic
y g

FY95. 

MILITARY JUSTICE STATIST

STATISTICAL SUMMARY: F

(See table insert, attached) 

U.S. ARMY LEGAL SERVICES A

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

OTJAG, includes the following organizations i

ministration of military justice: the U.S. Army 

ernmentAppellate Division, the Defense Appellat

Defense Service, and the Trial Counsel Assistan

U.S. ARMY JUDICIARY 

The U.S. Army Judiciary consists of the U.S. A

nal Appeals, the Clerk of Court, the Examinati

Division, and the Trial Judiciary. 

U.S. ARMY TRIAL DEFENSE S

During FY 96, the United States Army Tri

(USATDS) continued to provide high quality, p

counsel services to soldiers throughout the Army. 

data for FY 95 and 96 is displayed below. 

FY95 

General Courts-Martial 825 

Special Courts-Martial 353 

Administrative Boards 841 

Nonjudicial Punishment 35,303 

Consultations 36,653 

26 
p

courses address all aspects of court-martial pra

cases from students to enhance the course of in

tion, TCAP publishes a monthly memo detailing 

and practice tips, provides a telephonic hotlin

tors, and acts as a clearing house to ensure th

questing support are put in contact with subject 

Army prosecutors who have developed specializ

During FY 96, TCAP personnel responded to 

quests for assistance, which included sending w

assist counsel on more than 150 occasions. In a

ducted 12 three-day advocacy training courses f

cates from all services in the continental Un

Hawaii, and Germany. TCAP provided technical 

in two courts-martial, and published and distrib

the TCAP Memo to approximately 360 subscr

mitted a live video teleconference to 19 installa

videotape copies ofthe conference to four other i

provided instructional assistance on five occa

Advocate General's School, including presentat

Advocates attending The Basic Course and to tri

tary justice managers attending the Criminal 

ments and Military Justice Managers courses. 

TCAP entered the electronic information era 

an indexed TCAP Memo library on the Army

General's Corps LAAWS BBS system. Trial cou

all copies of the TCAP Memo via the Internet. 

dated each time a new memo is published. To 

communication among prosecutors and suppor

published e-mail addresses for all TCAP staff a

help address for use by trial counsel in the field

In addition to their extensive support to trial 

torneys prepared nine Answers and Returns to 
g y jgg 

legal sufficiency, military corrections, the Army

gram, federal felony and magistrate court prose

ions for the Army Staff, statistical analysis an

Congressional inquiries. 

Criminal Law Division workload data for the l

is displayed below: 

FY95 

White House inquiries 405 

Congressional inquiries 121 

Secretary of Defense, Secretary 155 

of the Army, Chief of Staff of 

the Army, and The Judge 

Advocate General inquiries 

Miscellaneous inquiries 9 

Legal Opinions for Army Board of 5 

Correction of Military Rec0rds 

Clemency Petitions, Article 7 4, 21 

UCMJ 

Officer Dismissals 27 

Freedom of Information ActJ 19 

Privacy Act 

JOINT SERVICE COMMITTEE ON MILIT

The Chief, Criminal Law Division, OTJAG, s

representative to the Joint Service Committee 

(JSC). The JSC was established by the Judge 

and the Secretary of Transportation (Coast Gu

1972. It conducts an annual review of the MCM 

ecutive Order 12473 and DOD Directive 5500.17

and evaluates amendments to the UCMJ, MCM

28 
ances for soldiers serving certain sentences to c

convening authorities to direct a finance off

forfeiture funds to family members for up to s

the powers of Article 32 Investigating Officer

vestigate uncharged additional misconduct, a

ited mistake of fact defense as to age in carna

In addition, the Committee conducted a s

analysis of the military implications of the ps

privilege discussed in the Supreme Court case 

Study of the issue included review of propos

various services and outside agencies. The J

tee has not completed its work on this impor

ues its careful study of whether such a privi

lished under military law and, ifso, to whom s

extend. The Committee is also reviewing a p

creased punishment for "hate crime" offenses

FOREIGN CRIMINAL JURIS

As executive agent for the Department of 

ment of the Army, through the International 

Division, OTJAG, compiles information conc

foreign criminal jurisdiction over U.S. person
Apart from an increase in the number of tot

Offense Citations and Exclusive Foreign Jurisdi

cline in numbers in each category of cases cite

reflect the drawdown of U.S. Armed Forces ove

in total Civilian Foreign Offense Citations ma

the additional stress placed on family members w

been deployed on an increasing number of oper

The significant increase over last year's figur

Foreign Jurisdiction category reflects a 72 perc

number of Navy cases reported. While the Arm

ures also show an increase in this particular cate

tional increase. This increase correlates directly 

number of serious offenses, such as manslaught

simple assaults, and drug offenses committed b

against foreign nationals. 

This year, foreign authorities released 191 o

foreign jurisdiction cases involving military pe

thorities for disposition. In concurrent jurisdic

foreign countries had the authority to assert p

U.S. military authorities were able to obtain wa

of this jurisdiction in 3,059 cases. Overall, wai

by the U.S. in 90.3 percent of all exclusive and 

tion cases. This figure reflects an increase in 

1993-1994, when the figure was 81.6 percent. 

During the last reporting period, civilian em

dents were involved in 1,263 offenses. Foreign a

53 of these cases, or 4.2 percent of this total, t

thorities for administrative action or some oth

tion. This year, foreign authorities released a s

number (326) of these cases, or 22.8 percent of 

civilian employees and dependents charged. 

30 
In 1987 the Army promulgated AR 27-26, R

Conduct for Army Lawyers (Army Rules). These 

parallel the ABA's Rules of Professional Condu

ply to all active and Reserve Component Judg

partment of the Army civilian attorneys, and 

torneys who practice before courts-martial. Th

revised in 1992. 

The Professional Conduct Branch maintains 

endar year basis. During 1995, professional con

ated into alleged violations of the Army Rules 

pared to the previous year, and decreased by 4

to the average for the years 1987 to 1993. Based 

the first 10 months of calendar year 1996, th

sional conduct inquiries should again decrease. 

in 1995, 80 percent of the allegations of attorn

were, after a full inquiry, determined to be unf

20 percent determined to be founded, the majo

nor or inadvertent violations of attorney ethic

about 30% of the attorney ethics inquiries con

trial or defense counsel. Each year since 1987, 

an average of one ethics inquiry into allegation

tary judge. 

LITIGATION 

The number of civil actions against the Depa

and its employees remains high, with 819 new l

FY 96 (compared with 811 in FY 95). Civil ac

civilian courts to interpret the UCMJ constitute 

cant portion of the litigation. The majority of t

lateral review of court-martial proceedings. Mo

lawsuits present challenges to the general co
practice-oriented education and training empha

opments in the areas of administrative and civ

and international and operational law. All stat

Continuing Legal Education requirements gra

courses. 

In addition to the 50 resident courses offere

classes were presented to almost 4, 707 students 

around the world. One course was presented vi

dience of approximately 850 students. · 

The flagship course of the School remains t

Officer Graduate Course. The Judge Advocate 

the only government entity statutorily authoriz

gree of Master of Laws (LL.M.) in Military L

enjoyed American Bar Association accreditation 

ing the passage of statutory authority to awar

degree, the ABA recognized the demanding sch

the Graduate Course, accepted its Accreditatio

site evaluation recommendation, and concurr

School to award the LL.M. degree in Military 

creditation Committee conducted a site evalu

Advocate General's School in 1995. The Comm

continued accreditation in 1996. 

On May 10, 1996, 76 students ofthe 441h Grad

The Judge Advocate General's School Master 

Law. In addition to 53 Army judge advocates, th

8 Marine, 5 Navy, 5 Air Force, 1 U.S. Army Res

tional military students from Egypt, Hungary

land. 

Three Judge Advocate Officer Basic Course

length, introduced a total of 163 students to th

the military: 150 Active Army, 2 U.S. Army R

tional Guard; and 5 international military st

32 
of criminal law backgrounds and experienc

Course. It enables the professor to review th

bring the students up to date, so that semina

vanced and meaningful. The students then s

groups for intensive study and discussion of se

subject area. Professors conduct seminars in t

that the subject-matter expert teaches the stu

focus on evolving, unresolved, or controversi

This new approach was developed in respons

many of whom now arrive at the Graduate Co

criminal law experience. 

The Criminal Law Department has also add

the Graduate Course curriculum, New Devel

Law. This elective discusses the latest cases fr

peals for the Armed Forces and the service c

peals, and addresses the impact such cases w

tice ofmilitary justice. It will be offered for the 

1997. A one-time elective in designing advocac

will be offered in spring 1997 as part of the 

improve advocacy training. 

The Military Justice Managers Course was o

time this year. This course, which has been rec

thusiasm in the field, is designed to orient ne

justice to the unique management challenge

created in part because many ofthese officers h

the Graduate Course. The New Developments

Criminal Law Advocacy Courses all continue 

These courses are open to all the services, as w

Components. In fact, The Judge Advocate Gen

tutes the sole source ofinitial training for new 

The Leadership and Management Program, 

nal Law Department assumed responsibility l
Course in November 1995. Major General Micha

was the 25th Hodson Lecturer and delivered a stir

late MG Kenneth J. Hodson. The School was fort

Henry H. Shelton, then commander of XVIII A

Fort Bragg, as the Clausen Lecturer in Leadersh

Lee, Jr., of the Virginia Capital Representation 

and Mr. Alvin Hazan, CID Crime Lab at Fort G

dressed students in Graduate Course electives. 

Court ofAppeals for the Armed Forces, and Cap

mas Poch spoke to the Military Judge Course. A 

involved with the administration of justice talk

Justice Managers Course, including Mr. William 

Court for the Army Court of Criminal Appeals; C

Chief, Criminal Law, Office of The Judge Advoc

James N. Hatten, SJA, XVIII Airborne Corps; 

Deputy Chief, Government Appellate Division; a

lor, Chief, Trial Counsel Assistance Program. 

In the Department's effort to keep attorneys in 

on recent developments in criminal law, the Mil

posium appeared in the March issue of The Ar

member of the department authored one or more 

thoughtful discussion of opinions issued in the 

military and civilian courts. This effort was well 

Advocates throughout the Army, especially tho

tions who find it difficult to attend CLE courses

plans to publish the symposium annually. 

During the past year, Criminal Law professor

ety of locations away from the School, including 

cations throughout the United States and the U

Germany. MAJ Barto addressed the Judicial C

1996. Several members of the department parti

34 
who holds a doctorate degree in education. GR

and advice regarding Reserve Component c

TJAGSA, which includes the Reserve Compon

tary Judge Course, Staff Judge Advocate Cou

Officer Legal Orientation Course. GRA selects 

nent Judge Advocates for the Graduate Course

The School is the proponent for all enlisted 

cluding Active Army and Reserve Components. 

has been made in the area of revising and u

training program. The Advanced Individual Tra

of Instruction was completely rewritten and th

implemented. All training support packages fo

missioned Officers Course (BNCOC) and the 

missioned Officers Course (ANCOC) were rew

were implemented. As a result, both courses w

Sergeants Major Academy. 

The Combat Developments Division of the 

trine, and Literature (DDL) Department dev

approval of allocation rules for Judge Advoca

tions (JAGSOs) during the Total Army Analysis 

2005 (TAA05). The TAA process generates the 

combat service support forces necessary to supp

These allocation rules generate the appropriate 

to sustain training, administration, recruitin

qualified Reserve Component personnel. DDL

at the Combined Arms Support Command (CA

ginia, has been instrumental in representing t

TAA05 process. 

The Combat Developments Division has als

several other major projects. First, it secured U

agement Support Agency approval of a new 
lication designed to inform and assist judge advo

with timely articles on current legal issues. The 

view, issued quarterly, publishes scholarly and t

articles on dynamic military legal subjects. 

Of special note in promoting the utility of The A

Criminal Law Department published a symposiu

ing significant developments in military criminal l

rate the fiftieth anniversary of the Nuremberg W

the Military Law Review published the papers 

sented at the conference "Nuremberg and the Ru

Year Verdict," which was held at The Judge A

School. 

Moving into the electronic publishing age and pr

tical focus of The Army Lawyer, the editorial staf

issues of The Army Lawyer on-li.ne in the Legal A

Wide System, giving Judge Advocates in the field 

a valuable research tool. Electronic publishing i

CD ROMs and publishing on the World Wide Web

lic availability ofthe publications, subscription fo

able in each publication. 

Honoring scholarship, MAJ Mark S. Marti

TJAGSA's Alumni Association Professional Writ

work "Rules of Engagement for Land Forces: A M

Not Lawyering," which appeared in volume 14

Law Review. 

The Literature Division also continued to coor

tion of top quality Department of the Army pamp

als, training circulars, and graphic training aids 

36 
Hispanics, 32 Asians and Native Americans, 

FY 96 end strength of 1,502 compares with an 

in FY 95; 1,575 in FY 94; 1,646 in FY 93; an

grade distribution of the Corps was 5 general 

208 lieutenant colonels; 311 majors; 805 capta

tenants. Sixty warrant officers, 332 civilian 

enlisted soldiers supported legal operations w

To ensure selection of the best quali

appointment, career status, and service scho

cate General convened advisory boards sev

year. Competition for appointment in the Cor

more than 10 applicants applying for each op

Two hundred and eleven Judge Advocates 

ing resident service schools: 

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

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

Industrial College of the Armed Forces .

Department of Justice Fellowship .........

U.S. Army Command and General Staff 

The Judge Advocate Officer Graduate C

The Judge Advocate Officer Basic Cours

During FY 96, seven officers completed fu

degrees in environmental law, international 

procurement law. 
38 
FOll!i REVIEW UNOE R ARTICLE 56 - GENEF\AL COURTS.MARTIAL 

FOR •UVIEW UNDER AJllTICLE 86 ·ICD SP"ECIAL COURTS-MAA.TIAL 

FOlll EXAMINATION UNO ER ARTICLE n ·GENERAL COURTS..a.cAA.TIAL 

PART 4 ·WORKLOAD OF THE 

TOTAL ON HA.NC BEGINNING OF P'EfUOO(AT 

GENERAL COURTS·M.ARTl.AL 

ICC S,.EClAL COURTS-MAR'ilAL 

•EFERREO FOR REVIEW (AT ISSUE) 

GENERAL COURTS-MAFIT!AL 

BC:J S"ECIAL COUATS·MARTl.AL 

TOTA.L C&.'S"ES FIFV1EWED 

GENERAL COVRTS·MA.RTIAL 

BCD SPECIAL COURTS-MARTIAL 

::::::::.:;::;:;...:··· 

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

FIEVIEWED CURING La.ST AE,ORTING Jll'ERIOO +8.5% 

PART 5. APPELLATE COUNSEL REQUESTS BEFORE 

U.S. ARl\ff COURT O

PART 6. ACTIONS OF THE U.S. COURT OF APPEALS FO

PERCENTAGE OF CCA.. REVIEWED CA.SES FORWARDED TO USCAAF398 of 

P'ERCENTAGE OF INCREASE (•l/OECREASE (-)OVER l'RE\110US J:llE~O..:TING P'ER!QO 

P'ERCENTAGE OF TOTAL P'ETITIONS GRANTED 28 of 382 G 

P'EACENTAGE OF INCREASE f+)/OECP:EASE (-1 OVEA P'REVIOUS AEl"ORTING l"EA!OO 

P'ERcer-rrAce oF "ET1T10Ns GPl.ANTEO oF ToTAt. c.a..ses Aev1eweo av P~AC

JllATE OF INCREA.SE {+J/DECP'IEASE l-l OVER THIE NUMBER OF CASES "EVIEWEO CU

LAST RE•MTING •E•100 (41 in FY 95; 39 in FY 96) [HJ 

/'.ACE l OF2 
NUMBEf\ OF COMP'L.Alh'"':"S 37 

PART 10-STRENGTH 

AVEf\AGE ACTIVE OUTY STf\ENGTH I 491 zoo k~::::::::::::

PART 11 - NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBE~ OF CASES W~ERE NONJUDICIAL PUNISHMENT IMPOSED 

AATE P'EA 1 ,COO 

.-,ATE OF INCREASE (+VCECAEASE (-1 OVER 'FtEVIOUS l'EFUOO 

l'.J.GE 2 OF 2 

EXPLANATORY NOTES 

[AJ Cases convened ~y GCM convening authority. 


[BJ Based on recorcs of trial received during FY.for ap

[C] Includes only cases briefed and at issue. 


[DJ No reason being seen for distinguishing, GCM and BCD

tracked separately. 

:El Includes Article 62 appeals, All Writs Act cases, an

:FJ Includes 14 represented by civilian, as well as mil

:GJ Refers only to cases actually forward and petitions 

:HJ Includes all Anny cases decided (including remands) 

petitioned, certified, or mandatory review. 

40 
Judge Advocate General made frequent inspe

in the United States, Europe, and the Far Ea

vise the administration of military justice. 

ARTICLE 69 (a), UCMJ, EXAMI

Sixty-five general court-martial records of 

eligible for automatic review by the Navy-M

Criminal Appeals, were forwarded for examin

the Judge Advocate General in fiscal year 199

corrective action by the Judge Advocate Gen

are pending review. 

ARTICLE 69 (b), UCMJ, APPLI

In fiscal year 1996, 19 applications under Ar

Code of Military Justice, were received for re

applications remained pending from fiscal ye

applications, 23 were denied on the merits, wh

in whole or in part in one case. Eight cases a

review. 

ARTICLE 73, UCMJ, PETIT

In fiscal year 1996, four petitions for new tr

the Office of the Judge Advocate General. A

nied. 

APPELLATE GOVERNMENT 

Appellate Representation. The 11 Navy an

judge advocates assigned to Appellate Govern

total of 1640 pleadings last year; 1305 with the 

Court of Criminal Appeals and 335 with the 

the Armed Forces. 
Forces and made presentations at the Army 

General's School Criminal Law New Developme

Justice School, the Army-Navy Reserve Conferenc

Minnesota, and the Courts of Criminal Appeals Ju

in Washington. D.C. 

Reserves. The Appellate Government Division 

and support to 11 Naval reserves and six Marine 

assigned to the Division. The reservists assigned c

a significant contribution to the successful c

Division's mission. 

APPELLATE DEFENSE DIVIS

Appellate Defense Practices. A total of 2097 of 

ceived were reviewed during fiscal year 1996 by 

active duty Navy and Marine Corps judge advoca

18 reserve Navy and Marine Corps judge advocat

Appellate Defense Division. This figure represe

9% over the cases reviewed the previous fiscal ye

401 (19%) were fully briefed to the Navy-Marin

CriminalAppeals, while 596 (28%) were summaril

were 356 cases petitioned to the Court of Appe

Forces. 

Capital Litigation. This was another active ye

capital cases at the appellate level. The opinion in 

States u. Curtis was issued by the Court ofAppe

Forces, and a motion for reconsideration and re

the full court is pending. 

The Division assisted in the second annual D

fense Course at the Naval Justice School. This c

"how to" look at trial-level capital litigation. 

The Division also assisted with telephonic adv

42 
Criminal Appeals to the field counsel. Advice 

litigation issues were also disseminated. 

Reserves. The reserve team continues to b

our appellate practice. Approximately 18 reser

the Navy and Marine Corps reserve componen

mately 40% of the Division docket. 

NAVY-MARINE CORPS TRIAL J

The Navy-Marine Corps Trial Judiciary (NM

13 circuit offices, 4 subsidiary branch offices, 3

and 24 reserve judges. NMCTJ provided mi

general courts-martial and 2787 special court

cal year 1996. These numbers represent an in

courts-martial and an increase of 161 special 

sidering the downward trend in the overall nu

tial over the last several years, this year's in

may well mark a leveling off. 

Fiscal year 1996 saw a reduction in the nu

judges, from 35 to the present 32. Two judicia

Midsouth Judicial Circuit (Charleston) and th

cial Circuit Branch Office (Rota). Cases contin

wide, including such places as Bahrain and I

sea. 

Military judges received continuing legal edu

NMCTJ training conference, the Air Force-sp

Military Judges Seminar, the National Judic

Military Judges' Course at the Army JAG Sch

served as lecturers or seminar leaders at the 

Senior Officer Courses in Military Law, offered 

School at numerous locations world-wide as w

service courses. Additionally, military judges t

the continuing education ofjudge advocates pr
TSO East (Norfolk) and TSO West (San Diego) 

TSO Southeast (Mayport, Florida). The new TS

assuming all trial counsel (prosecution), court re

mand service functions formerly provided by t

NLSOs in the area; the NLSOs retained defense 

representation, legal assistance, and claims fun

pose of the TSO is to more completely separate 

defense functions in the Navy's military justice 

TSO and NLSO commanding officers to bE\come d

trial advocacy, advising their junior counsel in c

without giving rise to a conflict of interest. The 

by allowing more direct mentoring ofjunior coun

ership, will improve the litigation skills ofjudge 

hance the ability ofNAVLEGSVCCOM to provide 

to both client commands and individual member

The field version of the Military Justice Man

tion System (MJMIS) has been developed and wi

in our NLSOs and TSOs in 1997. This will prov

tracking system for courts-martial from the initial 

through the appellate process. 

NAVLEGSVCCOM continues to upgrade the h

ware assets ofits personnel, purchasing hundred

recently, Pentium) computers and creating a Na

In early 1997 the entire JAG Corps will have acc

and a Navy JAG Home Page on the World Wide 

NAVLEGSVCCOM is commanded by the Depu

General of the Navy and includes 328 officers, 2

185 civilian personnel. The command constitute

Navy's total judge advocate strength. 

44 
pp

2. To provide comprehensive formal train

Service judge advocates and other legal pe

justice and ensure the delivery of quality le

other legal services; and 

3. To train Sea Service commanders and 

the practical aspects of military law to ena

form their command and staff duties, and 

Service personnel to assist in the sound ad

military justice. 

Coordination~ Through the InterService Lega

Committee (ISLERC), the Commanding Office

the Commandants of the Army and Air Force J

nually to discuss new initiatives and opportun

ing, and to increase cooperation and efficienc

legal personnel within the Department of Defe

Academic Programs~ NJS has five "core" c

contain substantial blocks of instruction relatin

and operation of the UCMJ. These courses are

1. 	 Accession Judge Advocate Course. The nin

fered four times per year and is the acces

militaryjustice for alljudge advocates ofthe 

and Coast Guard. The majority of the co

military justice and court-martial advocacy 

cal areas include legal assistance and admin

graduation from NJS, judge advocates ar

dance with Article 27 (b), UCMJ. In fisca

lowing numbers were graduated from NJS

Navy: ...........................................................

Marine Corps: .............................................

Coast Guard: ...............................................
ecution of the legal responsibilities of comm

majority of the course focuses on the areas o

ishment (Article 15, UCMJ) and court-marti

fiscal year 1996, the following numbers wer

instructors: 

Navy: ..............................................................

Marine Corps: ................................................

Coast Guard: ..................................................

Civilian ............................................... : ...........

4. 	 Legal Officer Course. In the Navy, non-law

perform a host of military justice functions in 

not large enough to warrant assignment of 

This four-week course is geared toward the

legal officers (typical paygrade is 0-1 to 0-3) a

to assume legal duties in the parent comman

offered 16 times per year, at Newport, San D

In fiscal year 1996, the following numbers we

Navy: ..............................................................

Marine Corps: ................................................

Coast Guard ...................................................

Civilian ...........................................................

5. 	 Legal Clerk Course. Typically assigned to a

legal officer within the command is a "lega

collateral duty for a command yeoman or pe

two-week course is designed to provide train

legal forms and reports, service record entr

post-court paperwork, etc. In fiscal year 199

46 
(Separate offerings for both 

Prosecution and Defense) 

Intermediate Trial Advocacy Course 

Advanced Trial Advocacy Course 

Coast Guard Law Specialist Course 

Reserve JAGC Military Law Workshop 

Enlisted Courses 

Reserve Legalman Course 

Army Reserve Court Reporting Course 

Mid-Career Legalman Course 

International Programs. Within the EIMET 

International Training Detachment plays an im

veloping educational programs for foreign mili

ficials in the areas of military justice, human 

military operations, and civilian control ofthe m

these programs, the structure and operation o

both to initiate discussion and as a comparati

year 1996, the NJS International Training Detac

in training delegations from over 50 countries a

developing democracies in drafting their own m

Publications. NJS is responsible for publicati

Review, all materials in support of academic 

additional materials directed by higher authori

1996, Volume 43 of the Naval Law Review was 

tained several articles related to the operation 

also updated several of its "study guides," manu

sist judge advocates with discussion ofthe UCM

law. Fiscal year 1996 also saw development of a 

Reference Manual for Legal Issues, several sec

cuss a commander's responsibility under the U
education courses in fiscal year 1996. One colo

the National War College, one lieutenant colo

the Naval War College, one major completed 

StaffCourse, four majors and four captains rece

from the graduate course at The Judge Advoca

of the Army, and two captains completed the A

School in Quantico, Virginia. Eleven officers ar

ing resident professional military education c

assigned to the Special Education Program (SE

As unrestricted officers, Marine Corps judge 

to fill numerous non-legal billets. During fiscal y

advocates assumed commands. Lieutenant Co

assumed command of Headquarters Battalion, 

Ground Combat Center, 29 Palms, California. 

Kevin H. Winters is the commanding officer o

Battalion at Marine Corps Recruit Depot, Parris 

lina. Three lieutenant colonel judge advocates 

command for fiscal year 1996. Beyond our se

arena support, Major Mike Keegan is serving as 

United Nations War Crimes Tribunal. 

The Marine Corps reserve judge advocate co

385 officers throughout fiscal year 1996. Approx

officers were actively participating in the Res

reserve judge advocates serve as appellate judg

rine Corps Court of Criminal Appeals. Fifteen 

cates, major through colonel, serve as military j

48 

PART 3 ·RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

PART 4 ·WORKLOAD OF THE NAVY MARINE CORPS COURT OF 

TOTAL ON HAND BEGINNING OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

REFERRED FOR REVIEW 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS·MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS-MARTIAL 430 

BCD SPECIAL COURTS-MARTIAL 1216 

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

REVIEWED DURING LAST REPORTING PERIOD 2276/2090 -8 • 9% 

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE THE NAVY-MAR

CRIMINAL APPEALS 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 355 

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

PERCENTAGE oF TOTAL PETITIONS GRANTED 25 

PERCENTAGE OF INCREASE (+)!DECREASE(-) OVER PREVIO~ REPORTING PERIOD 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

RAT.E OF INCREASE (+)/DECREASE(-) OVER THE NUMBER OF CAS.ES REVIEWED DURING 

LAST REPORTING PERIOD 

PAGEJOF2 

50 
GENERAL COURTS-MARTIAL 165 SPECIAL COURTS-MARTIAL 245 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 177 

PART 10 ·STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 596, 864 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 

RATE PER 1,000 

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

PAGE20F2 
productivity. As a result, dramatic reductions i

log were made. With the reduced backlog, the av

for a case to complete the appellate process w

was reduced by approximately 50%. 

The Court has not noticed any substantial cha

offenses charged; however, the Court noticed 

number of post-trial processing errors. The Co

indicated the types of errors most frequently m

can be alleviated in the future. 

MILITARY JUSTICE STATIST

AND USAF JUDICIARY ACTIV

The Judiciary Directorate of the Air Force Leg

has overall responsibility for supervising the adm

tary justice throughout the United States Air F

cial proceedings to the appellate review of cou

tionally, the Directorate has the staffresponsibil

Legal Services Agency in all military justice mat

connection with programs, special projects, stu

generated by the Department of Defense (DoD), H

members of Congress, and various agencies

Directorate's activities are discussed below: 

a. The Judiciary Directorate serves as 

for the review of military justice iss

submitted to the Air Force Board for 

tary Records. The Judiciary provid

ions concerning such applications. 

b. The Judiciary Directorate received 

specific cases requiring either forma

telephonic replies to senior officials, i

52 
, 

y 

world wide web, providing maximum flexibility 

of 30 October 1995, there were approximately 

ers. In the month ofOctober alone, 1,683 users 

for a total of 63, 350 FLITE sessions in this on

counted for 756 hours of usage. WebFLITE u

from a low of 146 users accounting for 40,098 

1996, to a high of 1,656 users accounting for 

October 1996. In fiscal year 1996, FLITE di

DoD Directives, TJAG #1 CDs withAFRs and oth

#2 CDs with AFis and other databases, the co

troller General Opinions on CD, a Military Ju

special purpose CDs for offices such as Feder

agementAgency (FEMA), Defense Emergency A

and Analysis (DEARAS), and a FLITE tutorial 

court decisions are now forwarded directly from 

The decisions of the United States Supreme C

Court of Appeals for the Armed Forces, and th

Criminal Appeals are added as soon as they a

research attorneys perform between 100 and 2

per month in support of clients throughout the 

fense and also provide Service Desk support to 

TRIAL JUDICIARY 

The Air Force Trial Judiciary had an averag

trial judges, 6 reserve trial judges, and 10 non

ers assigned throughout 5 judiciary circuits wo

Trial Judge and his military judge assistant 

Trial Judiciary headquarters. The military jud

presiding over all general and special courts-

United States Air Force; serving as investiga
diciaries of the Army, Navy, Marine Corps, Coas

Air Force, and by a military trial judge from Can

In November 1996, three judges attended the Ad

Course in Reno, Nevada, conducted by the Natio

lege. Six trial judges, four active duty and two 

the three-week Military Judges' Course conduc

Judge Advocate General's School in Charlottesvil

13 through 31May1996. In August, one judge att

sic, Medical, and Scientific Evidence Course at th

cial College. Finally, each of the judicial circuits 

three day educational workshops during the year

The Chief Trial Judge attended the mid-year a

ings of the American Judges Association. These 

civilian judges are most beneficial in promoting 

understanding of the military and civilian justice 

roles of military and civilian judges. 

APPELLATE GOVERNMENT COU

In November 1995, the Chief, Trial and Appel

Counsel Division and 3 appellate counsel traveled t

Advocate General School to attend the Criminal L

ments Course. This course covered the latest mi

significant areas of criminal law. In addition to pr

est Circuit Counsel an update in the most recent 

velopments, it was an opportunity for both appe

trial counsel to spend several hours together and 

better serve the base legal offices. 

One appellate government counsel continues t

deal of her time in managing the Advocacy Cont

(ACE) Program. In addition to publishing the mo

during the last fiscal year, the program manage

54 
Currently there are six reserve judge advoc

pellate counsel. They have continued to provi

especially since active duty manning has been 

In addition to preparing written briefs, three o

have presented oral argument before the Cou

Armed Forces during its current term. 

Appellate practice before USCAAF and AFC

cated below. 

AFCCA FY 94 F

Briefs Filed 369 

Cases Argued 25 

USCAAF FY 94 F

Briefs Filed 96 

Cases Argued 25 

SUPREME COURT FY 94 F

Petition Waivers Filed 6 

Briefs Filed 5 

CIRCUIT TRIAL COUNS

During fiscal year 1996, Circuit Trial Coun

courts-martial and 4 7 special courts-martial. T

counsel on the latest developments in the law 

their trial skills, 4 of the 5 Chief Circuit Trial 

Circuit Trial Counsel attended the Criminal Law 

course at the Army JAG School in Charlottesv

shops for base-level prosecutors were conducte

Counsel in all the judicial circuits. The work

coincide with defense counsel workshops and in

involving The Judge Advocate General; the D

ciary; and military trial judges. 
tioned at the circuit offices at Bolling AFB, DC; R

Travis AFB, CA; Ramstein AB, Germany; and Yo

One of the most welcome personnel developme

was the approval by The Judge Advocate Gene

ment of Circuit Defense Paralegals to the three 

the United States. Due to the large number of ba

assigned to those circuits, these paralegals have 

valuable in assisting the CCDCs to manage thei

and administrative workloads. 

Trial defense counsel training remained one of t

est priorities. This training includes periodic 

Courses for new ADCs and annual one-week wo

the circuits. The Division also provided adjunct 

for the Trial and Defense Advocacy Course and t

Advocacy Course, both of which are conducted at T

Advocate General School, Maxwell AFB, AL. In 

job training is continuously conducted by CDCs 

APPELLATE DEFENSE DIVIS

The Appellate Defense Division continues to a

counsel in the field by providing them with cur

cerning important areas of the law affecting th

division periodically publishes the Defense Herald

taining the latest developments from the appella

the last year, Appellate Defense Counsel taught p

Defense Counsel orientation courses held for new 

titioners. In addition, Appellate Defense Coun

circuit conferences and brief new developments in 

to the practitioners in the field. Appellate Defe

current by attending seminars in military law a

litigation. 

56 
Other Motions 110 

Supreme Court Petitions 5 

CONFINEMENT FACILITIE

At the end of fiscal year 1996, a total of 421 A

were in post-trial confinement. Ofthose, 256 in

term confinement at the United States Disc

(USDB), Fort Leavenworth, Kansas, and 18 are 

Federal Bureau of Prisons (BOP) system. Ther

in the Return-to-Duty Rehabilitation (RTDR) 

graduating and being returned to duty durin

number ofAir Force inmates on parole at the en

was 142, a ten percent decrease from last fiscal 

LEGAL ASSISTANCE AND PREVENTIVE 

The Legal Assistance Division continued to 

law and legal assistance services worldwide. Du

legal offices served over 275,000 clients, provide

and furnished notary services in almost 400,00

During the 1996 tax season, 85 Air Force base

tax filing services to airmen and their families, a

number of bases participating in 1995. This ye

free electronic filing software to base legal office

ticipation in the program. In 1996, over 55,000 

tronically filed, saving airmen an estimated $

mercial preparation costs. Electronic returns f

increased by over 100%. The top five bases in 

electronically filed were Nellis AFB, Shaw AFB, 

AFB, and Robins AFB. 

On 20 March 1996, the President signed legis

military service in a "qualified hazardous duty 
EDUCATION & TRAINING 

The Judge Advocate General's Department pro

continuing legal education (CLE) and advanced de

its personnel and those of its sister services. Air 

occupied more than 2000 training slots in course

locations. Air Force attorneys attended courses a

The Air Force Judge Advocate General School

Force Base, Alabama 

The Army Judge Advocate General School, Charlot

The Naval Justice School, Newport, Rhode Isl

Georgetown University 

George Washington University 

Harvard University 

The University of Utah 

The National Judicial Conference in Reno, Ne

The Army Judge Advocate General's School 

The Army Judge Advocate General's School (A

on the campus of the University of Virginia in Ch

ginia. CLE courses attended by Air Force attorne

Contract Attorney 

Criminal Law Advocacy 

Federal Courts and Boards 

Federal Labor Relations 

Federal Litigation 

Fiscal Law 

Government Contract Law Symposium 

Law of War Workshop 

Legal Assistance 

Military Judge 

58 
military justice conducted by the National Judic

AIR FORCE JUDGE ADVOCATE GENE

The Air Force Judge Advocate General School 

of seven professional continuing education schoo

aligned as part of Air University's Ira C. Eaker 

sional Development at Maxwell Air Force Base, A

liam L. Dickinson Law Center is home to the sch

C. Morehouse Center supports Paralegal Studi

conducts legal education for attorneys and parale

tary services; provides instruction at other Air U

and colleges; publishes The Reporter and The A

view; manages HQ USAF's Preventive Law Cl

maintains JAG Department liaison with civilian 

nizations, law schools, and states requiring conti

tion. 

Resident Courses 

The school conducted more than 34 classes in 

more than 20 different courses (some courses ar

once a year); which were attended by over 2,500 

and seminars conducted at the AFJAGS include

Advanced Environmental Law 

Advanced Trial Advocacy 

Claims and Tort Litigation 

Deployed Air Reserve Components Operatio

Environmental Law 

Environmental Law Update 

Federal Employee Labor Law 

Federal Income Tax 

Information Warfare 
The AFJAGS utilizes distance learning for tho

ferings that lend themselves to effective teachin

dium. The school presented two courses via sa

over 50 locations attended by more than 1,00

courses were: 

Air Force Logistics and Contracting 

Fiscal Law 

Outside Teaching 

In addition to the resident courses, the AFJAG

military justice instruction in the following colle

emies, and courses within Air University: Air Wa

mand and Staff College, Squadron Officer Schoo

missioned Officer Academy, Support Group Com

Logistics Group Commanders' Course, Chaplain O

Contingency/Wartime Planning Course, Nationa

Advocacy courses. 

The AFJAGS conducts four "Surveys of the L

bothjudge advocates and paralegals in the reserv

surveys are conducted at a civilian conference 

Colorado. The surveys provide concentrated leg

clude extensive reviews of recent developments 

During calendar year 1996, over 600 reserve ju

paralegals attended an AFJAGS Survey of the L

The AFJAGS participated in the Expanded I

tary Education and Training Program (E-IMET)

curityAssistance Programs mandated by Congres

The program is designed to further U.S. foreign 

tablished in the Foreign Assistance Act. The E-

volves U.S. military teaching teams sent abroa

rights, military justice, civilian control ofthe mil

60 
py

JAG Department's quarterly legal publication c

of general interest, were distributed in March, 

and December. Each issue of The Reporter has 

cated to contemporary military justice issues. A 

dresses ethical issues which have surfaced in th

context. The school revised and republished T

mander and the Law in 1996, a 500+ page com

topics addressing the issues confronting today's Ai

ers. 

PERSONNEL 

As of 30 September 1996, there were 1319 ju

active duty. This number included 2 major gen

generals, 131 colonels, 195 lieutenant colonels, 31

tains and 37 first lieutenants. In addition, there 

attorneys, 994 enlisted legal technicians and 45

personnel assigned to the Department. 

GENERAL LITIGATION DIVIS

The Air Force prevailed against an attack on co

financial information provided by American Expr

ernment travel card (GTC) program in disciplinar

Russell, et. al v. Air Force, et. al, the plaintiffbrou

Right to Financial Privacy Act (RFPA) alleging 

ment, in using his GTC records, without his permi

in an Article 32 investigation, had violated his 

privacy. Plaintiff also requested an injunction wh

granted, prevented the Air Force from using, pho

seminating any individual's GTC financial recor

disciplinary action. The court denied plaintiff's re

the RFPAapplies to the government travel card pr
y 

to provide rule comments to the Environmental 

in its implementation of the Clean Air Act, Reso

and Recovery Act, CERCLA and the Clean Water 

Among the more significant actions was active p

Range Rule, which could affect operations at bo

tive ranges. In addition, the three Regional Cou

assist Air Force installations in complying wit

programs, and worked actively with the variou

menting their regulations which affect Air Force 

The litigation section, in conjunction with the 

partment of Justice defended the Air Force in 3

tions, 5 Federal Administrative actions and sev

tions. The regional counsels assisted in defendin

trative actions (including Notices of Violation) is

ous installations during the course of the year. 

BRYAN G. HAWLEY 

Major General, USAF 

The Judge Advocate General 

62 
17

Fl R VI W BY J

381 

18

75 

PART 4 • WORKLOAD OF THE AIR FORCE COURT OF C

't01'&1.~~-........ 0I~ 60

39f9ULCOUl'T"l-llll~ ____ 506 .............,. lU<! 

.vtMCO •o• arvttW 49~ 

QINIMli. cou~ 328 

ICO t"°"'- COU.,....,....,,AL 167 

'!'OTAI. CAlll lllV9WID 79

Ql..,IMI. C:::V...,..~4. 495 

tce8'11NL~ 300 

'OT&L •CNO .&T ci.o• O' ~ .jUI

Q~\,.C~'"""W"""""'L ZJl 

a= IJllC\AI. CO'.J---........ ....u 77 

un OJI '"'Cllll.All t•ut>IOlll.UI MOYelN....flle&m 

OIVllWID °"-I.LIT-­ +28%

-PARi 5 • APPELLATE COUNSEL REQUESTS BEFOR

COURT CF CRIMINAL APPEALS 

PART 6 U.S. COURT OF APPEALS FOR THE ARMED 

'f"Cf?:"'AOI 
PART I· ORGANIZATION OF COURT 

..----­ ...

""ei.&J.~ 

-­ 251 

l?J 

""""IY ._,,llJl!rt NMI W'ftt ..._ 

·--............w. 

.....CIALCO\I~ 

266 

279 

PART 9 ·COMPLAINTS UNDER ARTICLE 131 

PART 10 •STRENGTH 

9,099 

23.61 

+2.66 

[A] SPCMs in which BCD is adjudged. ,,.,,.a.,a 

[B] Includes BCD specials and non-BCD specials. 

64 
COURTS-MARTIAL 

Attorney counsel were detailed to all special co

tary judges were detailed to all special courts-m

cases, the presiding judge was the Chief Trial 

general courts-martial judge. When the Chief T

available, military judges with other primary du

special courts-martial. Control ofthe detail ofju

exercised by the Chief Trial Judge and all requi

in a timely fashion. 

GENERAL COURTS-MARTI

Eighteen of the 22 accused tried by general c

fiscal year were tried by military judge alone. 

cused tried by militaryjudge alone received dishon

12 received bad conduct discharges and one rec

None of the accused tried by courts with membe

tence which included a punitive discharge. One 

be tried by a court which included enlisted mem

cused elected to be tried by a court which include

bers. All ofthe general courts-martial resulted in 

of the accused whose charges were referred to g

tial were nonrated (pay grades E-1 through E-3

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

(pay grade E-7) and one was a junior officer (pay grade
The following is a breakdown of sentences a

courts-martial tried by members (four convictio

Sentence 

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

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

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

fined ($16,491.00) ........................................

partial forfeiture of pay ...............................

The following indicates the four sentences im

eral courts-martial in the past five fiscal years. 

No. of Con- Redu

FY victions Forfeiture§ Confin~ment in Gr

96 22 15 (68%) 19 (89%) 20 (9

95 11 6 (55%) 10 (91%) 9 (8

94 7 1 (15%) 7 (100%) 6 (9

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

92 16 11 (69%) 14 (88%) 14 (8

66 
93 (cruelty and maltreatment) ......................

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

108 (military property of the U.S. - loss, dam

destruction, or wrongful disposition) .......

112a (wrongful use, possession, etc. of 


controlled substances) ...............................

120 (rape or carnal knowledge) ......................

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

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

123a (making, drawing or uttering check, 


draft, or order without sufficient funds) .

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

127 (extortion) ..................................................

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

129 (burglary) ...................................................

130 (housebreaking) ........................................

132 (frauds against the United States) .........

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

GENERAL COURTS-MARTIAL SU

Eighty two percent of the accused tried by gene

were tried by military judge alone. Eleven perce

pleaded guilty to all charges and specifications. 

cent of the accused tried by general courts-mar

pleaded guilty to all charges and specifications. 

increase in general courts-martial records receive

Guard Headquarters in this fiscal year over last 
Sentence 

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

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

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

partial forfeiture of pay ................................

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

reprimand···························.··························

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

fined ( total fines $10,350.00) ......................

loss of lineal numbers ...................................

The following is a breakdown of sentences a

courts-martial tried by members (one convictio

tals). 

Sentence 

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

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

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

partial forfeiture of pay ($1,000.00) ............

68 
(p) 

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

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

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

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

107 (false official statements) ........................

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

disposition of military property of the U.

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

substance) .................................................

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

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

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

130 (housebreaking) ........................................

132 (frauds against the United States) .........

133 (conduct unbecoming an officer) .............

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

SPECIAL COURTS-MARTIAL SU

Eighty one percent of the accused tried by spe

were tried by military judge alone. Fifteen perce

pleaded guilty to all charges and specifications

cused tried by special courts-martial with memb

to all charges and specifications. There was a 

special courts-martial received and filed at Coast 

ters this fiscal year over last fiscal year. 

CHIEF COUNSEL ACTION UNDER ART

In addition to the required review of courts-m
ing quotas were filled by attorneys, paralegals, 

taries assigned to Coast Guard legal office

$80,000.00 was spent on legal training during t

U. S. COAST GUARD COURT OF CRIM

The Court consisted of the following judges a

1996: 

Chief Judge Joseph H. Baum 

Judge John H. Fearnow 

Judge Mark A. O'Hara 

Judge David J. Kantor 

Judge Ronald R. Weston 

Issues challenging the status of the Court a

were initially raised in fiscal year 1992 and ex

reports, continued to be asserted before this C

Appeals for the Armed Forces, and the U.S. S

the past year. On 12 June 1995, the U.S. Supre

v. United States, _U.S._, 115 S. Ct. 2031 (1995

the de facto officer rationale which had been 

former Court of Military Appeals to affirm the 

this Court found to be defectively appointed. 

manded to the Court of Appeals for the Armed 

transmittal to this Court in order that it could 

properly appointed panel of this Court. Writs 

granted in seven other petitioned cases and, ba

marily remanded to the Court ofAppeals for th

further action also. Before remand to this Cou

peals issued an order in United States v. Ryder n

retary of Transportation had appointed judges 

out a specific provision in Article 66, UCMJ so a

70 
issues by the Supreme Court. Those issues hav

petition for certiorari to the Supreme Court capt

Al, v. United States, which was filed in August 1

was granted on November 8, 1996 with oral arg

for February 24, 1997. Action on the petition sh

resolution of this matter. 

In addition to the decisional work indicated in 

judges on the Court have participated in various 

ferences, committees, and seminars during the p

In May 1996, all the judges of the Court atte

Judicial Conference of the U.S. Court of Appeals for 

at George Washington University. Judge Wiese i

sented the Court on a panel ofCourt of Criminal A

part of the instruction for the 39th Military Jud

Army Judge Advocate General's School in Charlo

This was one ofJudge Wiese's last official acts as 

tary judge before his retirement at the end of Se

September, 1996, Chief Judge Baum, Judge K

Weston, who is the most recently appointed judg

tended a three-day Appellate Military Judges Tr

Bolling Air Force Base, Washington, D.C. 

This seminar was a continuation of the highly 

late military judges training program created exp

tary appellate courts by ChiefJudge Frank Nebe

Veterans Appeals and first held in 1993. As befo

committee composed of judges from each of the 

appeals and chaired by Chief Judge Baum of th

the preparations for the seminar, which was host

Air Force Court and presented again by ChiefJud

highly beneficial seminar is now an annual event 

rienced judges alike. In addition to chairing the 
ADDITIONAL MILITARY JUSTICE 

Appendix A contains additional basic milita

for the reporting period and reflects the incre

workload in various categories. 

PAUL M. BLAYNEY 

Rear Admiral, U.S. Coast Guard 

Chief Counsel 

72 
NUMBEPI OF BAD CONDUCT DllCHAfltQIS 

Sl'ECIAL COURTS.MAATIAL CSA LIVEU 

"UMHA 0, SAO CO..OUCT DISCHARGES 

PART 3 - RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOflt IUV!EW UNDEfll: A,irr1c1.1 ee. GENERAL COUJllTS-MAlllTIAL 

FOR IHVIEW UNDEflt AATICLI ... aco Sl'ECIAt. COURTS.MApil!TIAL 

FOflt EXAMINATION UNDIR AfltTICLI 19~ GENEAAL COURTS-MAfll:TIAL 

PART 4-WORKLOAD OF THE COAST GUARD 

TOTAL ON HAND IEOINNIPfG OP ll'UUOD 

GENEAAL COU..TS·MAfltTIAL 


ICO Sll'ECIAL COUfllTS-MAJllTIAL 


REF!lllfllfD llOflli flliEVll!W 

GENERAL COUJllTS-MAATIAL 

BCD S,ECIA.L COU,.TS-MAfllTIAL 

TOTAi. CAS REVIEWl!O 

GEN!.1'AL COURTS·MAATIAL 

ace Sll'ECIA1. COURTS-MARTiAL 

TOTAL PEN.DINO AT CLOSI Ofl ll'l!AIOD 

GENERAL COUATS.f.4A ..TIAL 21 

BCD S'ECIAL COUfllTS-MAfllTJAL 5 

AEVIEW•D OUAl"G LAST AIPOllTl"G ,..,.,00 0% (No c

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE COAST GUARD 

CRIMINAL APPEALS 

PART 6. U.S. COURT OF ·APPEALS F

•EACUn'AGI OF COMll lllVllWID CASIS '0-AllO!O TO USCMA 9/3 

'ElllllCENTAGI 0, lflii!CAEASI (+,,OECAl.ASI f-t OVUl 'fllEVIOUS Rll'OfllTINQ '111111100 

PEACINTAG!OFTOTA~•ETITIONIGllANTED 3/1 

PElllllCe:NTAGe OP INCfllaASI l+l/DECflllASI ·-· OVEfll ll'Pll.IVIOUS lltll'OfllTINO PUUOO 

ll'ERCl!NTAQE 011 PITITfONS QJllANTl!D Ofl TOTAL CASES fllfVllWID aY COM!lt !

UST ..Ell'OATING ll'UUOD 

*This total includes one petition f l# f.Jt~~~rdinary relief 

before ~eferral of the case to either a SPCM or GCM. 

NOTE: A BCD Special or BCD Special Court-Martial is a cou

to impose a BCD, wheth~r or not a BCD was imposed b
TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COUATS·MA,.TIAt.: 

SPECIAL COUATS·MAllllTIAL 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUM8!.flll Oft COMPLAINTS I 4 

PART 10 ·STRENGTH 

AVE AAG!. ACTIVE DUTY STRENGTH 34,190 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMllA OF CASES WHEAE NONJUDICIAL PUNISHMENT IMftOSEO 

RATE PEP'I 1,000 

4 

3 

805 

23.54 

-0.88% lllllATE OF INCAEASE l+UOECAEASI C-) OVEA '"'EVtOUS 1'!1111100 

1AGl!ZOFl 

74