on 


MILITARY JUSTIC

INCLUDING SEPARATE REPORTS 


of the 


U.S. COURT OF MILITARY APPEALS, 

THE JUDGE ADVOCATES GENERAL 

OF THE U.S. ARMED FORCES, 


AND THE CHIEF COUNSEL 

OF THE U.S. COAST GUARD 

For the Period 

October 1, 1988 to September 30, 198

PROPERTY OF U.S. ARMY 

f!iE JUDGE ADVOCATE GENERAL'S 

LIBRARY 
COMMITTEES ON A

SERVICES 


of the 


U.S. Senate and House of Repres

and to the 


SECRETARY OF DEFENSE, 

SECRETARY OF TRANSPORTAT

and 


SECRETARIES OF THE 


ARMY, NAVY, AND AIR FORC

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUST

For the Period 


October 1, 1988-September 30, 19
NAVY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF T

AIR FORCE 

REPORT OF THE CHIEF COUNSEL OF THE COAST G
The Judges of the United States Court of Milita

Judge Advocates General of the Army, Navy, and 

Chief Counsel of the Coast Guard; the Director, Jud

vision, Headquarters, United States Marine Corps

David A. Schlueter submit their annual report on 

the Uniform Code of Military Justice, pursuant 

Uniform Code of Military Justice, 10 USC §867(g). 

The Code Committee met on two separate occasio

year 1989 and, pursuant to notice published in th

ter, both meetings were open to the public. The C

was pleased that a number of visitors attended eac

ings and demonstrated their interest concerning th

considered by the Code Committee. 

The initial meeting of the Code Committee was 

ber 13, 1988, and pursuant to an invitation by the C

the Chairman of the Joint-Service Committee on 

was present to discuss several proposed changes 

Code of Military Justice. Specifically, the agenda in

eration of proposals concerning modifications to A

form Code of Military Justice, relating to the reten

jurisdiction over servicemembers who were discha

quently reenlisted; modifications to Articles 9, 10, 

to speedy trials and the rules pertaining thereto; 

Article 32 to permit an investigating officer to 

charged offenses; changes to Articles 39 and 41 

permit an additional peremptory challenge for new 

to a court-martial; an amendment to Article 47 re

cific punishment provisions for refusal to testify 

martial and substituting the authority of an app

court to assess the punishment to be imposed f

amendments to Article 48 to specifically authoriz

Military Review and the Court of Military Appea

ishment for contempt; an amendment to Article 5
procedures for investigating allegations of judicial 

experience of counsel trying cases; problems encou

conduct of civilian dependents in a foreign count

ment of military personnel in foreign confinement 

The second meeting of the Code Committee was 

1989. During this meeting the proposed change to 

Evidence 707 to specifically prohibit evidence relat

examinations and a modification to Rule for Cour

701 to permit the Government to discover the nam

of defense witnesses other than the accused were 

members. A change to RCM 702 to require the 

notice of an intent to offer the defense of innoc

drugs was also discussed during this meeting. The 

discussed proposals to allow the Government to 

agreement negotiations; to establish continuing co

diction; and whether there was a need to establis

handling requests from the news media for access 

records or proceedings. Furthermore, during bo

members received reports on the status of militar

of the Armed Services and discussed matters rela

bers of court-martial proceedings in each service 

quality of the servicemembers being recruited. Co

that if the quality of the· military recruit was all

rate, more military disciplinary problems would be 

Finally, the Code Committee was briefed by t

United States Court of Military Appeals on s

changes to the Rules of Practice and Procedure 

States Court of Military Appeals. This discussion 

posed change to allow the certification of issues o

nal law to the Court of Military Appeals by an a

court or federal court and, in addition, certificatio

state law by the Court of Military Appeals to an a

court. This discussion also included a proposed ch

2 
WALTER T. COX, ill 

Associate Judge 

EUGENE R. SULLIVAN 

Associate Judge 

Major General WILLIAM K. SUTER, USA 

The Acting Judge Advocate General of the Army 

Rear Admiral EVERETTE D. STUMBAUGH, US

Judge Advocate General of the Navy 

Major General KEITHE E. NELSON, USAF 

Judge Advocate General ofthe Air Force 

Rear Admiral JOSEPH E. VORBACH, USCG 

Chief Courisel, United States Coo.st Guard 

Brigadier General MICHAEL E. RICH, USMC, 

Director, Judge Advocate Division, 

Headquarters, United States Marine Corps 

Professor DAVID A. SCHLUETER 

y j

the United States Senate and House of Represent

Secretaries of Defense, Transportation, Army, Nav

in accordance with Article 67(g), Uniform Code of 

10 USC §867(g). 

THE BUSINESS OF THE COU

The reduction of the backlog of the Court that 

fiscal year 1988 continued into 1989. Although t

plished a significant reduction in the petition do

total number of such cases was further reduced f

the end of 1988 to 260 cases at the end of 1989. (

The master docket was reduced from 65 to 48 

same period. (See Appendix B.) The number of c

on the miscellaneous docket remained constant 

cases. Thus, the total number of carryover cases w

341 cases at the end of 1988 to 311 cases at the en

the course of 1989 the Court issued a total of 120 

pared with a total of 130 opinions during 1988.1 (

As the number of cases pending before the Co

duced to a record low in recent years, the proce

similarly been significantly reduced. For exam

processing time from the filing of a petition for g

the action of the Court in granting such petition 

from a f>-year high of 181 days in fiscal year 1987 

in·fiscal year 1989. This represents a reduction o

Appendix D.) Similarly, the average number of d

date a petition for grant of review is granted to th

date has been reduced from 426 days in fiscal year 

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

year 1989, the Court was notified that petitions for writ of cert

the Supreme Court of the United States in 25 master docke

.Court took final action. 
The average processing times reflected in Appe

G include the times allotted for counsel to file plea

since a normal briefing cycle under the Court's 

and Procedure requires 70 days for the filing of 

the master docket, the average periods for the act

of a case by the Court after the filing of such pl

cantly less than the figures indicated in Append

These 5-year comparative tables thus reflect a sub

ment in case processing times which is attributab

the Court has been functioning since June 1986 w

ment of 3 judges and has more recently estab

Term of Court. 

PUBLIC AWARENESS PROJE

(Project Outreach) 

Following a practice which was established d

1988, the Court again travelled outside its own co

oral arguments in several actual appeal cases i

people within the Armed Services, as well as tho

community throughout the United States, to gain 

ciation of the procedural safeguards Congress ha

military justice system, and particularly in the ap

court-martial convictions and sentences. At the 

Superintendent of the United States Military Aca

of the Court on February 22, 1989, travelled to 

York, and heard oral argument in an Army appe

before a group of approximately 1,200 Cadets a

and military lawyers. The Court subsequent 

invitation from the Commander of t uth C

Guard and from the ~an of the University o

School of Law and, on March 11, 1989, heard ora

Army appeal in the Strom Thurmond Auditorium 

6 
televised nationwide on the C-SPAN television net

same evening as part of a three-hour special progr

tary justice system and the appellate review of cou

under the Uniform Code of Military Justice. The 

from this special program was uniformly favorable 

ferent sections of the United States and reflected t

cational purpose which originally motivated the 

take its Public Awareness Project. 

JUDICIAL VISITATIONS 

During fiscal year 1989, the Judges of the Court, 

past practice, visited military installations, delive

numerous professional organizations, and partici

seminars to inform both the military and civilian 

the Court's work concerning the administration of 

tice system. 

In fulfillment of this responsibility, Chief Judge 

erett delivered speeches at the 1988 Army Judge A

al's Conference, Charlottesville, Virginia; the Air 

Air Command Judge Advocate General's Conferen

Force Base, Virginia; the Naval Justice School, N

Island; Tyndall Air Force Base, Panama City, Flo

Navy Military Judges' Conference, Norfolk, Virgin

Judiciary Annual Judicial Conference and Crimin

Division, Fort Bragg, North Carolina; American 

Midyear Meeting, Denver, Colorado; Pentagon Cha

eral Bar Association, Fort Myer Officers Club, Arli

Chicago Bar Association, Chicago, Illinois; Nation

Advocate Conference, Washington, D.C.; Military 

Conference, Little Rock Air Force Base, Arkansas

Coast Guard Academy, New London, Connecticut

grams, at Bergstrom Air Force Base, Austin, Texas 

'.fexas; U.S. Army Sergeants Major Academy, Fo
, 

members of the Inter-Service Military Judges' 

advisor he was present for meetings of the Ame

tion Standing Committee on Military Law and h

trict of Columbia Circuit Judicial Conference; 

lumbia Bar Annual Convention; the 59th Annu

ence of the Fourth Circuit; the Annual Meetin

Conference of Commissioners on Uniform State 

can Bar Association Annual Meeting; the Ann

the Federal Bar Association, and the AIRLIFT R

Force Base, North Carolina. 

Judge Cox participated in the Judicial Conf

Federal Republic of Germany; Area Defense Co

ference, Garmisch, Federal Republic of Germa

Appellate Counsel Workshop, Bolling Air Fo

States Army Judicial Conference, Western Circu

fornia; Federal Bar Association Conference, San 

nia; Air Force Defense Counsel Conference, 

United States Army Reserves' Workshop, Judg

al's School, Charlottesville, Virginia; Military Ju

Force Judge Advocate General's School, Maxwe

Alabama; the American Bar Association Meet

South Carolina; Fourth Circuit Judicial Confer

Virginia; Judicial Conference, Fort Jackson, So

the Federal Bar Association Convention, Washin

delivered Law Day speeches at Shaw Air Force B

na, and the Naval Base, Norfolk, Virginia. In a

conferred with military lawyers, judges and sen

Hickam Air Force Base, Hawaii; Camp Lejeun

Fleet Combat Training Center, Dam Neck, Virg

Academy, New London, Connecticut; and the Na

Newport, Rhode Island. 

Judge Sullivan delivered speeches at the Judg

al's Annual Continuing Legal Education Traini

s 
The Fourteenth Annual Homer Ferguson Confer

the George Washington University Marvin Center 

1989. As in previous years, this conference was join

the Court and the Military Law Institute and w

·credit to meet the continuing legal education requi

ous State Bars in order to assist both military and 

tioners in maintaining those professional skills ne

tice before trial and appellate courts. 

The speakers for this year's conference included 

Hugh R. Overholt, The Judge Advocate General

Army; the Honorable Edward D. Re, Chief Judge

Court of International Trade; the Honorable Wil

Deputy Solicitor General of the United States; 

Walter T. Cox, Ill, Associate Judge, United States C

Appeals; Mr. Tim O'Brien, ABC News Law Corresp

athan Lurie, Historian to the United States Court 

peals and Professor of History, Rutgers Universi

Morrow, Air Force Judge Advocate General's Scho

ble Wayne E. Alley, Judge, United States District 

District of Oklahoma; Mr. Edward L. Burwitz, FBI 

James Taylor, Jr., Wake Forest University Scho

Chairman of the United States Court of Military 

Committee; Major Carol DiBattiste, Air Force Judg

eral's School; and the.Honorable Robinson 0. Ever

United States Court of Military Appeals. 

In addition, the Honorable Eugene R. Sullivan, A

United States Court of Military Appeals, served as 

conference panel entitled "Evidence Update" wit

Stephen A. Saltzburg, Deputy Assistant Attorney 

nal Division, U.S. Department of Justice and Pr

University of Virginia School of Law; Lieutenant 

Schinasi, Judge Advocate General's Corps, Unite
pants included Ms. Barbara P. Percival, Assis

Washington Post; Mr. Thomas S. Markiewicz, C

Corrections and Officer Review Division, Office 

Judge Advocate General; Major Michael Millard, 

vision, Office of the Army Judge Advocate Ge

Colonel Steven Bamberger, Executive Secretary o

ency and Parole Board; and Captains Denise J. 

Doyen, United States Army Trial Counsel Assista

The invocation was offered by Major General 

son, Chief of Chaplains, United States Army. T

welcomed by the Honorable Robinson 0. Everet

Court; Colonel Walter L. Lewis, United States A

behalf of the Military Law Institute; and Dean Jo

ciate Dean for Administrative Affairs, on beh

Washington University National Law Center. A 

tion by the Pentagon Chapter, Federal Bar Asso

by Craig Kabatchnick, Esquire, President of the C

The conferees included numerous military an

as well as Judges of the Courts of Military Revie

and commentators in the field of military justice. 

the conference was videotaped to provide a med

for those interested in the administration of milit

10 
United States v. Croom, 24 MJ 373 (CMA 1987), and 

Mil.R.Evid. 703 permits an expert witness to base o

ny on facts and data made known to such expert, 

that the military judge properly allowed the ex

remain in the courtroom for the purpose of ascer

dence presented by other witnesses. 

The issue of whether a certificate of completion o

United States Army Retraining Brigade was the 

pardon, annullment, or certificate of rehabilitation 

tion of the offer of the accused's prior conviction in 

martial was addressed by the Court in United Stat

MJ 361 (CMA 1989), wherein the Court held that th

such retraining program was not equivalent to a 

ment, or certificate of rehabilitation under Mil.R.E

parameters of the admissibility of former te

Mil.R.Evid. 804(bX1) was addressed by the Court in 

Connor, 27 MJ 378 (CMA 1989). In that case the u

the declarant was established and the Court constru

motive" requirement of the rule as it related to the 

witness at a hearing conducted under Article 32, U

Military Justice (UCMJ), as requiring merely an 

cross-examine the witness even if for tactical reaso

cross-examine is not extensively utilized. Addition

held that the former testimony was not rendered i

cause information may have been obtained by the d

opportunity was given to cross-examine the witne

The Court subsequently applied the same princ

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

tool by the Staff of the Court. It is included for the convenien

assist in easily locating cases of particular interest during the t

maries are not of precedential value and should not be cited in 

Court. 
g

In United States v. Trimper, 28 MJ 460 (CMA 

held in a trial involving the wrongful use of coca

that where an accused testified that he had nev

Government was properly allowed to submit a 

allegedly commissioned by the accused himself be

erly admitted to rebut defense character evidenc

was a non-user of drugs and to impeach his credib

The Court also held in United States v. Brown, 

1989), that uncharged misconduct evidence that 

prior to findings was not admissible during the se

observing that while such evidence may be con

federal sentencing guidelines (28 USC §994(dX10

were inapplicable to court-martial proceedings. 

In United States v. Reynolds, 29 MJ 105 (CMA 

delineated the three standards which must 

Mil.R.Evid. 401-404 for the admissibility of unch

namely, (1) whether the evidence reasonably sup

the court members that the appellant commit

wrongs or acts; (2) whether a fact of consequence 

less probable by the existence of the evidence; an

probative value is substantially outweighed by th

prejudice. Applying these standards in Reynold

cluded that the military judge properly allowed t

woman that she had been earlier raped by app

duced during the appellant's court-martial for th

woman where the "classic consent/mistake of 

raised by the appellant. Noting previous cases 

modus operandi evidence is generally not admiss

of consent, the Court held that the evidence in 

nificantly similar to the charged acts and therefo

dence of a particular "design" or "system" to pro

Specifically, the Court held that the evidence of 

conduct reflected that the appellant "had worke

12 
test under Mil.R.Evid. 404(b) is whether the evidenc

duct is offered for some purpose other than to dem

cused's predisposition to crime." Because the mi

consideration in Castillo explained and corroborate

of a witness who was the victim of the charged 

· Court held that the testimony was admissible unde

vision. The Court also reconciled a potential confl

provisions of Mil.R.Evid. 30l(e) and 404(b) by hold

that an accused who testifies under direct examinat

fense for which he is being tried does not waiv

against self-incrimination with respect to uncharged 

curring at a different time and place even though 

misconduct may be admissible under Mil.R.Evid. 4

the Court also held that if the accused's testimony 

ticular transaction giving rise to the charged offens

does waive his privilege against self-incrimination 

relating to such transaction, even though those fact

his guilt of other crimes. Finally, the Court held in 

the accused exercises his right and refuses to testif

admissible under Mil.R.Evid. 404(b), such refusal do

a purely collateral matter and, therefore, his tes

stricken by the military judge pursuant to Mil.R.Ev

The question of when and under what circumsta

may prevent the Government's use of a statement 

cused's wife was addressed by the Court in U

Hughes, 28 MJ 391 (CMA 1989). Therein, the Cou

out-of-court statement made by the accused's wife 

under Mil.R.Evid. 504(a) since that rule addressed 

the testifying spouse rather than the content of suc

this regard the Court noted the distinction between 

and (b) of Mil.R.Evid. 504, observing that subsectio

confidential communications between spouses. As 

consideration involved an out-of-court statement m

cused's wife to a third party, the Court held that t
ness was presented to testify concerning the m

Court held that the unavailability requireme

804(bX5) had not been established but that the err

of the statement was harmless beyond a reasonab

JURISDICTION 

In United States v. King, 27 MJ 327 (CMA 1989

to the Court under the provisions of Article 62

§862, the Court addressed the question of whethe

jurisdiction over the accused where a discharg

transferred to him for the purpose of effecting 

ment. Citing United States v. Johnson, 6 USCMA 

(1955), the Court held that a discharge for the pu

ing a reenlistment did not effect a return of a 

civilian life and, therefore, the court-martial could 

tion over the accused in question. 

In Unger v. Ziemniak, 27 MJ 349 (CMA 1989), 

writ appeal petition by an accused officer, the C

its authority to review a trial by special court-m

nitive discharge could not be adjudged. Noting 

could never qualify for review by a Court of Milit

ant to Article 66(b), and ultimate review by the U

tary Appeals under Article 67(b), the Court held 

tion was not limited to cases reviewable under t

the Uniform Code of Military Justice. Rather, 

United States, 1 MJ 457 (CMA 1976), the Court 

been granted judicial authority by Congress to iss

writ in "aid" of its jurisdiction even though su

within the limits of the appellate jurisdiction d

67(b). Furthermore, the Court noted that since M

ed, Congress had acted several times to amend t

but had never acted in a manner indicating a

with the scope of the Court's review within the 

14 
proceedings and that the trial judges action auth

of Military Review to consider the case on appea

States pursuant Article 62 of the Code. 

Addressing the question of whether a convening 

set aside the findings of guilty where the case had 

to a convening authority by a Court of Military R

tions to take action relating only to the sentence, t

United States v. Montesinos, 28 MJ 38 (CMA 1989

ing authority loses original jurisdiction once he pu

or officially notifies an accused thereof. Thus, the 

the convening authority acted improperly when h

the findings as he was subject to the directions of t

tary Review on remand and had no independent 

ity to act on the findings under those circumsta

stressed that the convening authority on such a re

solely by delegation from the Court of Military Re

fore, for the purpose of the case under consideratio

dinate to an appellate court regardless of his rank. 

An issue concerning the jurisdiction of the C

Review was addressed by the Court in the context 

extraordinary relief filed in Boudreaux v. Unit

Marine Corps Court of Military Review, 28 MJ 

Therein, the Court noted that the Court of Mili

previously returned a case to a convening author

ing; that at such rehearing, the petitioner receive

well below the statutory threshold for mandatory r

ticle 66(b), UCMJ, 10 USC §866(b), although the o

had fallen within the mandatory review provision

and that approximately ten years later, the Judge 

al of the Navy returned the case to the Court of 

requesting consideration of an issue relating to 

review the case under Article 69 of the Code. In a 

the Court of Military Review held that it had ju

either a theory of ancillary jurisdiction or under i
of Article 2(aX4), the Court rejected the accused

the provision should apply only to retired offic

United States v. Overton, 24 MJ 309 (CMA), cert. 

976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987), the Cour

martial jurisdiction could be exercised in this ca

question of when a reservist called to active duty 

to the Uniform Code of Military Justice under the 

ticle 2(aX3) of the Code, the Court held in United 

MJ 83 (CMA 1989), that such jurisdiction attached 

midnight of the date on which he was ordered to r

PROVIDENCY OF GUilTY PLEAS 

Affirming the decision of the Court of Military R

held in United States v. Dock, 28 MJ 117 (CMA 

Court of Military Review had correctly ruled th

cused plead guilty to crimes of unpremeditated 

bery by means of force and violence, under the c

pleas related to a capital offense of felony mur

have been rejected under the provisions of Article 

USC §845(b). 

The Court held in United States v. Romanelli, 

1989), that testimony at a rehearing on sentence 

show that the accused had been entrapped into 

would not justify withdrawal of his pleas of guilt

The Court noted that its earlier decision in Uni

field, 2 MJ 136 (CMA 1977), required such a resul

sions of paragraph 81b(2), Manual for Courts-Mart

edition), and that the relevant provisions of Rule f

(RCM) 810(a) paralleled the requirements of the 1

graph. 

Rejecting an accused's contention that his sta

providence inquiry on a guilty plea reflected that 

larceny should be reversed because the asportat

16 
in United States v. Jeffress, 28 MJ 409 (CMA 1989), 

a defense argument that the record only showed a

tention or asportation and, rather, held that the 

the accused's movement of the victim some fifte

creased the risk of harm to the victim under th

and, therefore, the elements of the crime of kidna

established on the record. In United States v. Balle

(CMA 1989), the Court subsequently refused to set 

plea of guilty to carrying a concealed weapon, reje

tion that the providence inquiry demonstrated an i

of guilty. Rather, the Court held, despite the accu

that the responses during the providence inquiry 

loaded gun was sufficiently accessible to satisfy 

being "on or about his person." An accused's co

basis of his pleas of guilty for obstruction of just

firmed in United States v. Williams, 29 MJ 41 (CMA 

the Court rejected the accused's claim that such ple

ident because a charge of obstruction of justice cou

cated on communications between accomplices to 

the Court held that federal civilian law was not co

fenses charged under clauses 1 or 2 of Article 134, 

§934, and the conviction could be affirmed where 

tions between accomplices constituted separate and 

the accused. 

The Court affirmed an accused's conviction of ag

upon his pleas of guilty in United States v. Stewart, 

1989), rejecting the accused's argument that the 

question did not allege an offense. Rather, the Co

specification alleging that the accused wrongfully e

to human immunodeficiency virus (HIV) with a 

produce death or grievous bodily harm while kno

. fected with such virus and wrongfully engaged 

course with the named victim without using a form 
y jgg

fied. The Court noted that the judge in question h

ed to serve as military judge for only forty days

revert to the rank of commander but continued to 

a rank he temporarily held because of his servic

officer; and that he continued to perform nonju

Court held these circumstances did not reflect 

duty was that of a military judge and, therefore, 

fied within the requirements of Article 26(c) of the 

In United States v. Scaff, 29 MJ 60 (CMA 198

cussed the powers of a military judge to conven

sion. Noting his authority under Article 39(a), 

§839(a), the Court held that a military judge cou

trial session up until the time he authenticates t

Thus, the military judge in question properly c

trial session to receive relevant evidence concer

caine had been added to the accused's drink witho

The Court further observed that if the military ju

suaded that an accused had complied with the r

new trial on the basis of newly discovered eviden

set aside the findings of guilty so that a rehe

taken place. Additionally, the Court held that a c

ty's decision to refuse to provide fees for a subpo

properly thwarted the military judge's attempt t

evidence and that the convening authority's on

disagreed with the trial judge's ruling on the ma

sought an appeal under the !lrovisions of Article 6

§862. Thus, the Court returned the case for referr

authority to conduct a hearing to determine whet

question would have provided evidence necessitati

SEARCH AND SEIZURE 

Concerning the question of investigatory intrus

member's room, the Court held in United States v

18 
g 

the Naval Investigative Service (NIS) office for the 

fingerprinted. The Court noted that a servicememb

to withhold fingerprints from military authorities, 

cused was not seized within the meaning of the 

ment of the United States Constitution when he 

rines were directed to the NIS office in question. 

The Court subsequently sustained the admissibili

a second urinalysis in United States v. Layne, 2

1989), ruling that the commanding officer had pr

conduct the second urinalysis. The Court stressed 

manding officer was justified in believing a repor

nally ordered sweep urinalysis test had been comp

accused where the report was supplied by an acco

informant," citing United States v. Wood, 25 MJ 46 

COURT MEMBERS 

Addressing the question of whether the military 

rejecting a defense challenge for cause against a p

member in United States v. Reichardt, 28 MJ 113 

Court held that the trial judge did not abuse his 

though the member had been a victim of a crime 

crime giving rise to the court-martial. Citing U

Smart, 21 MJ 15 (CMA 1985), the Court held tha

similar crime was not per se disqualified to se

member. Noting the particular circumstances in Re

ing the fact that the crime involved was not particu

as far as the challenged member was concerned and 

reoccurring experiences; that the witness gave n

swers and did not manifest evasive behavior; and t

judge noted on the record that he was favorably imp

member, the Court held that the judge's ruling refl

rely on a mere naked disclaimer of bias by the co

affirmed his ruling. 
rule was adopted to simplify the peremptory cha

members of courts-martial as it would be difficul

"pattern" of discrimination in a system permit

remptory challenge. 

In United States v. Nigro, 28 MJ 415 (CMA 198

that it would not disturb a military judge's rulin

lenge for cause against a court member absent a 

cretion. Thus, the Court upheld the military jud

challenge for cause after a court member attempt

mation from outside the court-martial proceed

Court rejected an argument that such a member 

disqualified and held that each case must be an

merit to determine whether disqualification is r

ing the order of challenges, the Court held in 

Newson, 29 MJ 17 (CMA 1989), that absent ext

common circumstances, a military judge should 

the order specified by RCM 912(g) (1). However, 

judge erred by allowing the trial counsel to pro

where the Government could exercise a challeng

counsel, the Court found no prejudice in the case 

ARTICLE 31-FIFTH AMENDMENT-SIXTH AMEND

As in previous years, the 1989 term of Cour

cases addressing questions as to when and in w

bers of the military services may be questioned 

United States v. Sievers, 29 MJ 72 (CMA 1989), th

the Fifth Amendment privilege did not permit an 

a base security officer to fill out an incident-com

false manner by stating that suspects were unkn

cused and other servicemen had committed the c

tigation. The Court emphasized that while the ac

ly have refused to provide the information under 

ment, he could not lie about the matter. Address

unanswered in United States v. Lee, 25 MJ 457 

20 
statement was admissible even though he had prev

unwarned and incriminating statement. The Court 

upholding the military judge's ruling that the accu

mony reflected that he had received a full warnin

and had cooperated fully with the investigators w

hide concerning the statement that was admitted 

Citing Mil.R.Evid. 304(c) (3), the Court also held in 

the military judge properly rejected a defense mot

the testimony of a witness as evidence derived from 

voluntary statement. Again, the Court relied on th

lized by the military judge in reaching this conclu

subsequently held in United States v. Jordan, 29 

1989), that statements made by an accused to civili

who did not contact previously assigned militar

properly used as evidence as such statements were 

were preceded by an appropriate waiver of the ac

counsel. 

In United States v. Fassler, 29 MJ 193 (CMA 1

held that in view of Arizona v. Rol>erson, 486 U.S. 

2093, 100 L.Ed.2d 704 (1988), which was decided af

trial, the admissibility of an accused's pretrial state

curred after he requested counsel did not hinge 

305(e) but, rather, on the application of Miranda 

U.S. 436, 86 S~Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, 

that after he requested counsel, the accused could 

gated at the initiative of the investigators about 

which he had previously been confined or any oth

fense, thereby rejecting an argument by the Gover

military judge properly relied on Mil.R.Evid. 305(

allow an investigatory interview on other offenses. 

The final case decided by the Court in the 198

volved an issue concerning the admissibility of an 

trial statements. In United States v. Brabant, 29 

1989), the Court held that where an accused, who 
g 

finement which had been previously ordered b

Marine Corps Court of Military Review, the C

question in Frage v. Moriarty, 27 MJ 341 (CMA 1

an issue concerning the tolling of the statute of l

in, the Court ruled that since the charges were 

the accused before an officer who was not author

oaths, the procedure did not comply with Articl

USC §830(a), regardless of the perception of th

lieved he was properly being sworn. As Article 

quired the receipt of sworn charges by an officer 

ry court-martial jurisdiction as a prerequisite for 

of limitations, the Court held that the statute 

not been properly tolled and that the militar

granted the defense motion for dismissal of the c

cations. In another case involving an application 

relief, Vanover v. Clark, 27 MJ 345 (CMA 1988), 

ered the propriety of re-referral of charges to a 

tial after they had been withdrawn by the co

from the accused's first court-martial. Factually

attempted to introduce uncharged misconduct a

martial and the miltiary judge rejected the Gov

Thereafter, the original charge was withdrawn fr

martial and re-referred to a second court-marti

charges relating to the same misconduct which 

introduced at the original court-martial. Citing R

held that the second military judge failed to ade

appearance of evil and that extraordinary action 

warranted. Thus, the Court granted the accused'

tion and directed that the additional charges be 

prejudice at the accused's second court-martial. 

In United States v. Pierce, 27 MJ 367 (CMA 198

that the accused's nonjudicial punishment impo

15, UCMJ, 10 USC §815, for larceny did not p

22 
Military Review was limited to the question of a

capacity during the appellate review process, 

1203(cX5) used the permissive word "may" rathe

tory word "shall" in referring to the Court of M

thority to inquire into an accused's mental cap

late review of the court-martial record. Thus, th

RCM 1203 was read in conjunction with RCM 

Military Review had the authority to inquire int

both mental responsibility and mental capacity

Article 50(a), UCMJ, 10 USC §850(a), mandates t

prevail on an issue of mental responsibility only 

factfinder that he was not mentally responsibl

that the change in evidentiary standard did no

Military Review's power to order an inquiry into 

The Court rejected a government argument 

Martinez, 28 MJ 56 (CMA 1989), that an accused 

fessed as a result of his testimony offered during 

sion motion hearing. Rather, the Court held th

agreement of counsel on the record that such 

used against the accused on the merits, the test

ited to use in resolving the suppression issue. 

A problem concerning the constructive serv

Courts of Military Review on appellants prior t

of the amendments to Article 67(c), UCMJ, 10 U

ing from the Military Justice Act of 1981, Pub.L

Stat. 1085, 1088, was addressed by the Court i

Myers, 28 MJ 191 (CMA 1989). The Court con

that its earlier decision in United States v. L

(CMA 1977), did not foreclose constructive ser

Therefore, the Court promulgated rules of c

which included requirements that the authoriti

in a newspaper of general circulation in the are

home of record; place copies of the decision of th
counsel to withdraw a petition for grant of revie

untimely filed by the accused himself, the Cou

States v. Engle, 28 MJ 299 (CMA 1989), that a 

should not move to withdraw a petition for gran

basis of untimeliness without obtaining permiss

cused. The Court reasoned that such action place

torney in a position in conflict with the interests 

that no fraud on the Court was involved on the pa

attorney as the timeliness of the petition was a 

which was easily ascertainable by appellate gove

by personnel of the Court. Thus, the Court det

problem could easily be resolved by the Governm

miss such a petition for untimeliness and that 

would preclude the loss of confidence in an appel

sel who has taken a position hostile to the inter

The question of the legal effect of an equally 

Military Review was addressed by the Court in 

Ohrt, 28 MJ 301 (CMA 1989). Noting the general 

practice, the Court held that an evenly divided v

of law constitutes an affirmance of the decision o

and that an evenly divided vote on a question o

evidence affirms the ruling below. However, the C

in Ohrt that the military judge erred by allow

commander to testify that the accused did not h

continued service in the absence of a proper fo

that the commander's opinion was personalized 

accused's charackr and potential. 

After analyzing the enactment of Article 60(d

§860(d), and the legislative history of the Milita

1983, Pub. L. No. 98-209, §5, 97 Stat. 1393, 1396-9

in United States v. Curry, 28 MJ 419 (CMA 1989)

ing authority was give11 the discretion to decide w

post-trial recommendation from a "non-lawyer le

command or whether, instead, to seek the reco

24 
cuseds convictions obtained between the date of 

which he was on trial and the date of trial were "p

within the meaning of the new rule and were thus 

in aggravation during the sentencing phase of his t

The question of whether the employment of an e

fense made such expert a "lawyer's representat

meaning of Mil.R.Evid. 502 was addressed by the 

States v. Turner, 28 MJ 487 (CMA 1989). After an

the Court held that if an expert is employed solely 

of assisting the defense, such an expert is a lawyer

and should not be interviewed by the prosecutio

Court further held that if the expert is also to te

fense at trial, the prosecution is authorized to 

expert regarding the testimony in question. The is

tory disqualification of defense counsel under the 

ticle 27(aX2), UCMJ, 10 USC §827(aX2), was addres

in United States v. Sparks, 29 MJ 52 (CMA 1989

could constitutionally dispense entirely with coun

proceeding, the Court held that a defense counsel w

fied as having previously acted for the prosecution 

did not deprive the court-martial of jurisdiction. R

held that if an accused makes an informed choice 

such counsel, that accused cannot later complain a

sel unless the latter fails to meet the customary s

fessional competence. The Court also held that s

tion could be asserted by either the defense or 

that the military judge was not required to allow d

representation under these circumstances. 

Noting the provisions of RCM lOOl(b) (4) and (5)

in United States v. Antonitis, 29 MJ 217 (CMA 198

during the sentencing portion of a court-martial co

cused's loss of a security clearance as a result of he

improperly received, since such evidence did not d

lationship between the offense and the military m
ATTORNEY FEES 

In United States Navy-Marine Corps Court of M

Cheney, 29 MJ 98 (CMA 1989), the Court held 

States Court of Military Appeals is a "court" wi

of the Equal Access to Justice Act, 28 USC §2412(

of awarding attorney fees. However, the Court r

ney's application for fees for legal representation 

in representing the petitioner in United States N

Court ofMilitary Review v. Carlucci, 26 MJ 328 (C

basis that such litigation was not a "civil action". 

the award of such fees under the statute in questi

PERVERSION OF JUSTICE 

In United States v. Stroup, 29 MJ: 224 (CMA 198

cluded that a statement made by an alleged co-c

admissible as evidence against his accomplice b

made during the course of or in furtherance of th

Court also ruled that trial counsel's misuse of cer

his use of derogatory evidence relating to the accu

crook"-which was unrelated to the accused-co

version of justice". 

OTHER CASES OF INTEREST 

In United States v. Bolden, 28 MJ 127 (CMA 

held that the accused could be convicted of larce

other servicemember arrange for a sham marriag

girl friend for the purpose of fraudulently obtain

ing allowances. Additionally, the Court noted 

could also be convicted of larceny on the theory t

rent for which the servicemember was reimburs

stated. In United States v. Orben, 28 MJ 172 (CM

affirmed a conviction of taking indecent libert

where the evidence proved that the accused had 

26 
y, 9(99), 

stressed that explicit threats and displays of for

quired by the drill sergeant given the coercive n

counter· between the parties, which occurred late 

cluded trailer for the alleged purpose of discussin

the recruit trainee which could lead to his impris

three years. The Court noted the atmosphere of 

control of the drill sergeant as a result of his mili

with the trainee and the fact that the encount

night when both the drill sergeant and the tra

aware that her husband would not be home. 

Addressing the question of whether a specificati

to allege an offense under Article 134, UCMJ, 

United States v. Woods, 28 MJ 318 (CMA 1989), t

the validity of the specification in question and a

sion of the Court of Military Review which grant

the United States from a contrary ruling of the mi

Court noted in Woods that a specification which 

accused engaged in unprotected sexual intercour

servicemember after knowing that his seminal f

deadly virus capable of being transmitted sexually 

been counseled regarding infecting others constitu

ly dangerous act likely to produce death or gre

Therefore, the Court held his conduct was prejud

order and discipline in the armed forces and was p

ble under Article 134. 

Another issue involving the protection of servi

sexually transmitted diseases was addressed by the 

States v. Womack, 29 MJ 88 (CMA 1989). There

firmed a conviction for violation of a "safe sex" or

base commander which prohibited the accused serv

engaging in any acts of sodomy or homosexuality 

fected with the Human Immunodeficiency Virus. 

that such an order had a valid military purpose b
in United States v. Dayton, 29 MJ 6 (CMA 1989), 

objective entrapment had earlier been rejected 

military judge did not err by refusing to instruct 

In United States v. Reichenbach, 29 MJ 128 

Court concluded that a conviction under Articl

USC §912a, involving the wrongful use of a drug 

SY could not be sustained as the substance had 

listed either temporarily or permanently as a co

under Section 813 of Title 21, United States Co

period in question. However, the Court did obse

date of the offenses involved, such a substance 

listed as a controlled substance and could, theref

under Article 112a(bX3) of the Uniform Code. 

held in Reichenbach that the adoption of Article 

empt prosecution under the third clause of Artic

Thus, the Court held that the conviction under 

leging wrongful distribution of ECSTASY could 

violation of 21 USC §841, which prohibited the 

controlled substance analogue, but the convictio

could not be sustained since use was not includ

act by the federal law at the time of the commis

wrongful use offense. Thus, the Court set aside 

the use offense but affirmed the conviction for d

STASY. 

After analyzing the legislative history behin

fense of resisting apprehension under Article 9

§895, the Court held in United States v. Harris, 

1989), that the flight of an accuSed from attem

28 

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

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

CUMULATIVE TERMINATIONS 

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

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

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

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

CUMULATIVE PENDING OCTOBER 1, 1989 

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

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

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

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

OPINION SUMMARY 

CATEGORY SIGNED PER 

CURIAM 

Master Docket.............................. 100 8 

Petition Docket ............................ 3 0 

Miscellaneous Docket.................. 9 0 

~~~~~~~~~~

TOTAL........................................... 112 8 

30 
PENDING (MASTER DOCKET) 


Awaiting briefs.................................................................. 19 


Awaiting oral argument.................................................. 7 


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

TOTAL................................................................................ 48 


FILINGS (PETITION DOCKET) 


Petitions for grant of review filed ................................. 2375 


Petitions for new trial filed............................................. 4 


Cross-petitions for grant filed ......................................... __4_ 


TOTAL ................................................................................ 2383 


TERMINATIONS (PETITION DOCKET) 


Petitions for grant dismissed.......................................... 7 


Petitions for grant denied ............................................... 2210 


Petitions for grant granted............................................. 137 


Petitions for grant remanded ......................................... 34 


Petitions for grant withdrawn........................................ 8 


Other................................................................................... 0 


TOTAL ................................................................................ 2396 


PENDING (PETITION DOCKET) 


Awaiting briefs.................................................................. 172 


Awaiting Central Legal Staff review............................ 23 


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

TOTAL ................................................................................ 260 


Sig

Per 

Me

TO
PENDING (MISCELLANEOUS DOCKET) 

Awaiting briefs.................................................................. 0 

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

Awaiting final action....................................................... 3 

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


RECONSIDERATIONS & REHEARIN

BEGIN END 

CATEGORY PEN!). 

ING 

FILINGS PEN!). 

ING Gran

Master Docket .......................... 0 10 0 

Petition Docket .. ...................... 0 2 0 0 

Misc. Docket ............................. 0 1 0 0 

TOTAL .. ................................. 0 13 0 

MOTIONS ACTIVITY 

BEGIN END 

CATEGORY PEN!). FILINGS PEN!). Granted 

ING ING Reje

All motions ... .. ... ..... . 26 494 2 412 55 

32 
Petition Docket Year End Pendi

702 


FY 85 FY 86 FY 87 FY 88 
CX> 

CX> 

'Tl 

-< 

CX> )> (0 


"1) 


"1) 


m 

z 

0 

x 

Cll 

34 
Total Opinions Per Year 

134 


FY 85 FY 86 FY 87 FY 88 

0 	Separate Opinion Cases • Majority and sep

(Concur, concur in the result, 

and dissent) 
Days from Petition Filing to Gran

FY 85 FY 86 FY 87 FY 88 
Days from Petition Granted 

to Oral Argument 

FY 85 FY 86 FY 87 FY 88 
Days from Oral Argument 


to Final Decision 


261 


FY 85 FY 86 FY 87 FY 88 
Days from Petition Filing 

to Final Decision 

549 

FY 85 FY 86 FY 87 FY 88 

0 	 Petition Docket • Master Docket 


(Denial/dismissal/withdrawal} (Granted cases/cer
)>

,,

,, 

rn 

z 

0 

x 

I 

40 
MILITARY JUSTICE STATISTIC

AND U.S. ARMY JUDICIAL ACTIV

During fiscal year 1989, the court-martial rates 

wide decrease in the number of courts-martial. The 

persons tried by all types of courts-martial in fisca

3.9% lower than for 1988. This overall decrease ref

decrease of 8.0% in special courts-martial empowe

bad-conduct discharge (BCD), and a 3.2% decli

courts-martial. There was a 1.7% increase in n

courts-martial, and a 2.8% increase in the num

courts-martial. The overall conviction rate for fisca

93.0% which represents a slight decrease from th

tion rate for the previous fiscal year. The decreas

courts-martial rate for the last few years is consiste

Army Court of Military Review having 282 fewer c

its review and a 10.9% decrease in the number o

(from 1966 to 1752) during fiscal year 1989. 

STATISTICAL SUMMARY: FISCAL YE

(See table insert, attached) 

U.S. ARMY LEGAL SERVICES AGE

The U.S. Army Legal Services Agency includes 

Judiciary, the Government Appellate Division, the 

late Division, the Trial Defense Service, the Trial 

ance Program, the Contract Appeals Division, the 

Office, Patents, Copyrights and Trademarks Divisio

Division, the Procurement Fraud Division, the Env
ernment remedies against fraud and irregularitie

quisition process. The Environmental Law Divis

for providing advice and guidance to the ARSTA

tal legal issues, as well as serving as the agency c

mental litigation in coordination with the Offic

Counsel and Department of Justice. The Profes

Office coordinates the recruitment of lawyers in 

formation Management Office facilitates automat

U.S. ARMY JUDICIARY 

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

tary Review, the Clerk of Court, the Examinatio

Division, and the Trial Judiciary. 

U.S. ARMY TRIAL DEFENSE SE

During fiscal year 1989, the United States Ar

Service (USATDS) continued to provide high-qu

defense counsel services to soldier clients wor

counsel represented 2259 clients at proceedings 

Article 32, UCMJ; 1606 clients at general courts

ents at special courts-martial; and 1460 clients 

boards. USATDS counsel advised 73,068 clients r

cial punishment under Article 15, UCMJ, and 29,2

ing a variety of administrative separation actions. 

USATDS continued to send a counsel to the S

the Multi-National Force while other counsel pa

mand training exercises and numerous deployme

USATDS continued to operate cross-service agree

advocates of other U.S. Armed Forces to provide m

specified locations overseas. 

42 
eleven in the United States, four in the Federal R

ny, and one in Korea. TCAP also provided instruc

trial counsel attending the U.S. Army Europe's C

ferences and the Trial Advocacy Courses at the 

vocate General's School. Throughout the year

training for approximately 450 counsel. Over 

TCAP Training Memorandum are distributed 

publication combines information on recent crim

ments with practical advice on how trial counse

developments. A new section of the Memo provid

examples which serve as a teaching device and ca

utilized by trial counsel in actual cases. A more 

tion of criminal law developments is provided 

Trial Counsel Forum portion of The Army Lawyer

SIGNIFICANT MILITARY JUSTICE 

Actions involving military justice handled by 

Division, Office of The Judge Advocate General, 

ing and drafting legislation, executive orders, pa

lations affecting the operation of the Army and t

Defense; monitoring the administration of mili

clude military corrections, the Army's drug test

fessional responsibility of attorneys and expande

tion over reservists; rendering opinions for the A

ing various aspects of criminal cases for action b

tariat and Staff; and evaluation of ongoing majo

fiscal year 1989, the Criminal Law Division respo

House inquiries, 252 Congressional inquiries, 6 

opinions from the Army Board for the Corre

Records, 451 letters relating to military justice m

the Secretary of Defense, Secretary of the Army

the Army, and The Judge Advocate General, and 

neous inquiries. The office also processed 36 c
cedures for submitting post-trial clemency reque

74, UCMJ. 

JOINT-SERVICE COMMITTEE ON MILIT

The Judge Advocates General and General C

partment of Transportation established the Join

tee on Military Justice on August 17, 1972. The 

Force, Marine Corps, and Department of Tran

Guard) provide representatives and a nonvoting 

provided by the U.S. Court of Military Appeals. 

Committee on Military Justice primarily prepa

proposed amendments and changes to the Unif

tary Justice and Manual for Courts-Martial. Th

serves as a forum for the exchange of ideas relati

tice matters among the services. 

The public comment period for the third ann

Manual for Courts-Martial concluded on October 

Service Committee considered the comments rece

modifications to proposals contained in the review

revised proposed executive order to the Office of 

sel, Department of Defense on February 19, 1988

proposed executive order was submitted to the 

ment and Budget for evaluation and interdepar

tion. In November 1989, the proposed executive o

to the Office of the General Counsel, Departm

make modifications to the proposed executive or

tions were made and the proposed executive orde

approval. 

The public comment period for the fourth ann

Manual for Courts-Martial concluded on Septem

Joint-Service Committee considered the comment

October 21, 1988, submitted a revised proposed e

the Office of the General Counsel, Department o

vember 1988, the proposal was coordinated with 

44 
ernment independent discovery rights; clarifica

review pretrial confinement pending governme

crease of the maximum punishment for attempt

imprisonment; changes to the speedy trial rule r

ernment to process a case in 120 days, from re

ment, unless a pretrial delay is granted; and an a

Military Rules of Evidence to prohibit admission 

the results of polygraph examinations. On Apri

posed executive order was forwarded to Office of 

Department of Defense. During the period of Au

ber 1989, the Joint-Service Committee made a

ments to the speedy trial rules contained in R.C.M

ber 1989 an amended proposed executive order 

Office of the General Counsel, Department of D

comment period for this proposal began on Decem

The Defense Authorization Act for Fiscal Yea

contained several important changes to the Unif

tary Justice. Significant changes include: an incr

the Court of Military Appeals from three to fiv

October 1, 1990; provisions to permit senior CMA 

cle m federal judges to serve in place of a disab

requirement for the President to prescribe stan

dures to investigate military trial and appellate j

vision and restatement of the charter of the Unit

Military Appeals in a new subchapter of the Unif

tary Justice. 

FOREIGN CRIMINAL JURISDIC

As executive agent for the Department of De

ment of the Army, through International Affairs 

The Judge Advocate General, maintains inform

the exercise of foreign criminal jurisdiction over U

During the reporting period December 1, 1987

ber 30, 1988, a total of 149,150 United States p
a waiver of primary foreign jurisdiction in 14

dents, for a world-wide waiver rate of 90.1 percen

Foreign authorities reserved for their disp

118,397 offenses allegedly committed by military 

of 116,784 of these offenses were relatively min

disorderly conduct, and traffic offenses). Traff

prised 99.4 percent, or 116,143 of these offenses. 

A total of 15,883 civilian employees and depen

with offenses subject to foreign jurisdiction. A

subject to trial by courts-martial in peacetime, 

had no effective jurisdiction over these offense

eign authorities released 328 of these offenses, o

total, to United States military authorities for 

other appropriate disposition. 

There were 127,633 final results of trial, i.e., 

final convictions for military, civilian and de

number 139 (.1 percent of the final results) w

127,494 (99 percent) were sentences to a fine or 

mainder of the final results of trial consisted 

confinement and 125 suspended sentences to con

LITIGATION 

Civil litigation against the Department of the 

ployees continued to increase during fiscal year 

ing the civilian courts to interpret the Uniform 

Justice, and the validity of actions taken pursu

a small but significant portion of the litigation. 

cases seek collateral review of courts-martial pr

the other cases present challenges to the genera

finement, specific actions taken by confinement 

and parole and clemency proceedings. 

46 
p

The Judge Advocate General's School contin

government entity statutorily authorized (10 U.S

the degree of Master of Laws (LL.M.) in Military 

the demanding scholastic standards of the Gra

August 1988 the American Bar Association acce

tion Committee's site evaluation recommendatio

the School's awarding of the LL.M. in Military L

On May 18, 1989, the 57 students of the 37th 

ceived The Judge Advocate General's School M

Military Law. In addition to 47 Army judge a

consisted of five Marines, one Navy, and four 

tary students. The 38th Graduate Class began on 

class contains 44 Army, eight Marines, two Na

tional Guard, two Army Reserve, and four inte

students. 

During fiscal year 1989, the School continued 

officers with legal orientations prior to their a

mand. Twenty-eight general officers attended Ge

Orientation Courses, and 210 battalion and briga

nees attended one of four resident Senior Offic

tion Courses. Additionally, instructors from the 

in twelve Pre-Command Courses conducted at 

Kansas, for approximately 840 battalion and brig

ignees. The School also provided orientations on 

to a member of the House of Representatives an

members. 

The Criminal Law Division sponsored five r

legal education (CLE) courses in fiscal year 1

Trial Advocacy Course was presented twice, in N

ruary, the Procurement Fraud Course in Nove

Judges Course in May-June, and the Criminal 

ments Course in August. Outstanding guest s

courses included the Honorable Kathleen A. Bu

sel, Department of Defense; Mr. Joe B. Brown, U
war training to legal officers from all four arme

eral international military students. The 10th Le

rorism Course offered by the Division continue

tablished in prior courses, of augmenting the S

with presentations by experts from the Departm

Department of State, the Department of Justic

Bureau of Investigation. A representative of th

fense of the Federal Republic of Germany atten

also gave a presentation on terrorism counterac

Republic. All involved actively discussed the v

confronted during terrorism counteraction opera

ducted domestically or overseas. The 4th and 5

and Military Operations Seminars and the secon

tional Law instruction to the 37th Graduate Co

concept of Operational Law (OPLA W) as a fully 

pline focusing on those legal issues, both domest

al, associated with the preparation for and d

forces overseas, in both peacetime and combat en

sponding to other instructional requirements, th

instructors to Germany to assist in the presen

Army Europe Operational Law course and one 

U.S. Army Europe International Law Conference

sored by the Division continued to stress the pr

of International Law, an approach designed to p

cates to serve as valuable members of a comm

team. 

The Contract Law Division conducted 13 cont

tion (CLE) courses in fiscal year 1989. The course

Division provided basic and advanced instructi

contract law and in fiscal law and policy. The 

signed primarily to meet the needs of Govern

they also benefited contracting officers, com

managers, and others involved in the federal a

from novices to experienced professionals. A wid

48 
posts worldwide. The Program Managers' Attorne

ed 36 attorneys who advise managers of major w

grams. The Advanced Acquisition Course offered 

tion in specialized subject areas to 105 experie

contract lawyers. The Contract Claims, Litigati

Course featured matters involving contractual d

dies for the 95 litigators who attended. In additi

and fiscal law CLE courses, the Contract Law Di

struction to 207 members of three Judge Advo

Courses and to 57 members of the resident Judg

Graduate Course. The Division's instructors pre

contract and fiscal law and policy at ten Reserve 

nical Training sites within the U.S. They also pre

seas continuing legal education courses: fiscal 

given at Fort Shafter, Hawaii, and to the Corp

Europe, and the annual CLE course on new dev

tract law was again taught to military and civi

tioned in Europe. 

The Administrative and Civil Law Division c

tinuing legal education courses, including two pr

Legal Assistance Course, two presentations of t

Relations Course, the Administrative Law for Mi

Course, and the Federal Litigation Course. In ad

presented classes at the Tax Conference in Korea 

trative Law, Tax, and Legal Assistance Conferenc

instructor taught installation commanders dur

Army Installation Management Courses at Fort 

Division also provided an instructor for the PAC

senting instruction at five locations. One instru

ministrative and Civil Law Division taught cla

Management Staff College. One instructor also ta

tal law courses at Maxwell Air Force Base as pa

course and participated in an environmental law 

by the Army's Office of The Judge Advocate Gen
tice notes in The Army Lawyer, and one scho

Military Law Review. Two articles were also pr

tion in an American Bar Association magazine. 

Branch also addressed five civilian continuin

courses throughout the Nation to train State ag

on methods for enforcing family support obliga

tary personnel. 

The Judge Advocate Guard and Reserve A

(GRA) sponsored several resident courses for R

judge advocates in fiscal year 1989. Approxima

serve and National Guard judge advocates a

Training between 19 and 30 June 1989. This y

fense, and Military Judge Teams were trained

Judge Advocate Officer Advanced Course was at

dents during this same period. The 2072nd U

Forces School in Philadelphia, Pennsylvania, pr

tive support for both courses. The Department 

CLE (On-Site) Training Program. Between Octo

1989, the School provided CLE to 2487 officers in 

lation centers throughout the United States. Att

all services and components. Interaction of A

Component judge advocate officers in the on-si

ues to be invaluable. The last major training p

GRA was the 1989 Judge Advocate General's R

Workshop during 11-14 April 1989. One hundr

senior Active and Reserve Component judge ad

cuss the significant legal and military issues f

Components. Guest speakers at the workshop 

(Ret) Frederick Wiener, who discussed the Tricen

Mutiny Act, and MG John S. Peppers, J-5, FO

hosted a new training program, the ARNG Sta

Judge Advocate Course. This course was held at 

21July1989 and was attended by judge advocate

headquarters. The week long course was de

50 
Professor Mark H. Moore, Guggenheim Professor, 

of Government, Harvard University; and the Hono

termeyer, Assistant to the President and Directo

Personnel. 

A major development in operational law was a 

Secretary of the Army to create the Center for L

Operations at the School. The International Law 

minister the Center, conduct symposia, publish a

vide resource material on operational law. The fir

scheduled for April, 1990. 

The Sixth Gilbert A. Cuneo Lecture in Gover

Law was presented on January 9, 1989, by the Hon

Bell, former United States Attorney General. The 

was entitled "Ethics and Professionalism in Federa

On January 11, 1989, the School instituted th

Major Frank B. Creekmore Lecture. The inaugura

livered by Mr. Rhett Dawson, Assistant to the Pre

ations and former Staff Director to the Presiden

Commission on Defense Management (better known 

Commission). 

On March 23, 1989, the 18th Annual Kenneth J. 

in Criminal Law was presented by Mr. Arthur "C

trict Attorney of the 27th District of Texas and C

Board of the National District Attorneys Associ

gave an outstanding lecture on Military and Civi

Coordination. 

The Thirteenth Charles L. Decker Lecture was gi

1989, by Judge William W. Wilkins, Jr. His lectu

"Mistretta v. United States-Its Impact." 

On May 4, 1989, the Sixth Waldemar A. Solf Le

tional Law was presented by Judge Abraham D. S

Advisor for the Department of State. His presenta

Basis for Use of Force in Response to Terrorism

ceived. 
qq

counsel, military judges and other legal assets o

tlefield. Manpower Requirements Criteria (MAR

71D, Legal Specialist; MOS 71E, Court Reporte

Legal Administrator, were completed and appro

MARC study for AOC 55A, Judge Advocate, has 

ordinated, and forwarded to TRADOC. The Judg

al has directed the development of a JAGC Mo

Plan. It will be a comprehensive study of all JA

ing, organization and equipment. The plan will b

and guide the JAGC through AirLand Battl

Army 21. Development of FM 27-100, Judge A

on the AirLand Battlefield, was continued fro

year. The FM will provide general guidance to 

mander and staff on the organization, personnel 

JAGC. It also will provide a doctrinal basis fo

cates and judge advocates on how, when, and w

are provided. 

A new edition of DA Pamphlet {Pam) 27-153, 

issued on August 15, 1989. New editions of DA 

book for Trial Counsel and Defense Counsel, an

Trial Procedure, will soon be issued. Revisions o

lications are ongoing. A total of 37 instructional 

available to attorneys in the field through the 

Information Center. Articles of interest to mili

tinue to be distributed to the field through the 

series, Military Law Review, and the DA Pam 

Army Lawyer. 

PERSONNEL, PLANS AND POL

Including law students participating in the Fu

tion Program, the strength of the Judge Advoca

at the end of the fiscal year 1989 was 1756. Rep

groups were 105 blacks, 31 Hispanics, 21 Asian 

52 
Advocate Generals written instructions several 

year. 

In November 1988, a selection board selected 18 

missioned officers to commence law school under 

Education Program. 

Sixty-seven judge advocate officers completed t

ice schools: 

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

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

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

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

Armed Forces Staff College...............................................................

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

Defense Project Manager's Course...................................................

During fiscal year 1989, five officers comple

study for LL.M. degrees in specialized fields of la

the Defense Officer Personnel Management Act 

appointed judge advocates accessed for the fiscal y

missions as first lieutenants. The Judge Advocat

is a separate competitive category, and selects an

ficers based on Judge Advocate General's Corps g

they occur. 

WILLIAM K. SUTER 

Major General, USA 

Acting The Judge Advocate General 
FOR REVIEW UNDER ARTICLE 66 • BCD SPECIAL COURTS-MARTIAL [EJ 

FOR EXAMINATI0N UNDER ARTICLE 69 • GENERAL COURTS-MARTIAL 

PART 4 - WORKLOAD OF THE u.s. ARMY COURT OF MILIT

TOTAL ON HA.ND BEGINNING OF PERIOD 221 

GENERAL COURTS-MARTIAL (GJ 

BCD SPECIAL COURTs-MAATIAL 

REFERRED FOR REVIEW 178

GENERAL COURTS..MAATIAL 


BCD-SPECIAL COURTS-MARTIAL 


TOTAL CASES REVIEWED 175

GENERAL COURTS-MARTIAL 

BCD-SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOO 25

GENERAL COltqTS-MARTIAL [GJ 

BCD-SPECIAL COURTS-MARTIAL 

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

REVIEWED DURING LAST REPORTING PERIOD -I0

PART 5-APPELLATE COUNSEL REQUEST BEFORE U.S. ARM

REVIEW 

NUMBER 1822 

PERCENTAGE 99.5% 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 

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

PERCENTAGE OF TOTAL PETITIONS GRANTED 

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

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

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

LAST REPORTING PERIOD 

PAGE rOF2 

54 
PART 9 • COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 53

PART 10 • STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 762,233 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 83,415 

RATE PER 1,000 109.44 

RATE OF INCREASE(+)/DECAEASE(-) OVER PREVIOUS PERIOD -9.I 

PAGE20F2 

[A) Part I includes only original trials, not rehearings. etc. 


(B] Specifically empowered by GCM convening authorities to impose BCD. 


[C] Part 2 necessarily is based on records received for review rather than all and only ca

[D] In addition, 30 dismissals of commissioned or warrant officers were approved. 

[E] Does not include 4 cases in which appellate review was waived. 


[F] Includes only briefed cases at issue in panels. 


[G) Cases are not separately counted by type of court. 


[H] Does not include 7 cases withdrawn by accused from appellate review. 


[I] Included applications filed out of time with good cause not shown. 


SUPERVISION OF THE ADMINISTRA

MILITARY JUSTICE 


In compliance with the requirement of Artic

Code of Military Justice, the Judge Advocate 

Deputy Judge Advocate General made frequent in

offices in the United States, Europe, and the Fa

sion of the administration of military justice. 

ARTICLE 69(a), UCMJ, EXAMINA

One hundred and one general court-martial re

statutorily eligible for automatic review by the N

Court of Military Review, were examined in the O

Advocate General in fiscal year 1989. This repr

crease over fiscal year 1988. Eleven cases required 

by the Judge Advocate General. 

ARTICLE 69(b), UCMJ, APPLICA

In fiscal year 1989, fifty-five applications un

Uniform Code of Military Justice, were received 

ling the number of applications received in fisc

these, forty-seven applications were denied on 

relief was granted in whole or in part in eight ca

pending review. 

ARTICLE 73, UCMJ, PETITIO

In fiscal year 1989 one petition for new trial wa

Office of the Judge Advocate General. That petitio
filed a total of 1,092 pleadings with the Navy

M

of Military Review and the U.S. Court of Mili

number excludes cases which were submitted to 

specific assignment of error. Additionally, the Di

in opposition to petitions for writs of certiorari 

preme Court. 

The Trial Counsel Assistance Program (TCAP) 

the Appellate Government Division, provides a 

ing point to assist trial counsel in the effect

courts-martial. Three appellate counsel are det

this program. Prompt assistance (usually same 

response to telephone calls from trial counsel in 

ing advice or information about cases currently

trial. Additional assistance is provided throu

newsletters, a computer bulletin board, and a d

published decisions. Field calls-in which a team 

provide professional advice and assistance-to

year, an average of 77 per month, up from an 

month in fiscal year 1988 and 42 per month in fi

Presentations: 

a. October 1988-Director, Appellate Governm

presentation to a combined Army-Navy Reserv

Conference at Minneapolis, MN. 

b. January 1989-All members of Appellate Go

participated in the first annual 2-day appellate 

Andrews AFB. 

c. April 1989-Deputy Director, Appellate Go

presented an update to the Lawyer class, Naval J

cerning current appellate issues and common tri

d. The Deputy Directors, of both Appellate De

Appellate Government Division, lead a 4 memb

tary installations on the West Coast in the pres

trial advocacy seminars. 

58 
United States Supreme Court and argued 15 writs 

Court of Military Appeals and the Navy-Marine 

Military Review. 

Trial Defense Training: The Appellate Defense 

ued to present its one-day trial advocacy seminar e

vocacy and New Developments in Military Law. 

year, the course has been presented to 7 Naval L

fices (NLSOs) and 3 Marine Corps Legal Services 

(LSSS's) in the United States. Follow-on trips 

planned to present an updated version of the cours

the Division's most experienced officers, to Navy a

trial practitioners throughout CONUS. 

Although the course is presented principally b

Defense Division, the materials and presentatio

neutral" and are intended for all judge advocates 

way involved in litigating or reviewing courts-ma

and problems selected for discussion are taken dir

reviewed by the Division, and cover such areas 

search and seizure, extraordinary relief, post-tri

abuse litigation, use of expert witnesses, residual 

trinsic misconduct evidence. 

Additional Presentations: 

a. April, 1989-Director, Appellate Defense Divis

update to the Lawyer class, Naval Justice School, 

rent appellate issues and common trial errors. 

b. May, 1989-Director, Deputy Director, and Se

Head gave a one-half day presentation to the Joint 

serve Weekend Training in Columbus, Ohio. 

c. June, 1989-Director, Appellate Defense Divis

tations to a Military Justice Seminar in Philadelp

sored by the Naval Legal Service Office and the F

ciation. 
year 1989, a decrease of 301 special courts-mar

year 1988 level. In fiscal year 1989, 93% of th

martial were tried by military judge alone, the s

in fiscal year 1988. 

During fiscal year 1989, total in-court hours 

23,359 hours, which is 1,600 hours more than fis

computes to about 2.7 hours more in-court tim

active duty judge. Travel increased 342 hours i

from 5,952 hours for fiscal year 1988 to 6,294 ho

1989. 

1. Military Judges Attending Continuing Legal E

Seminars/Lectures/Meetings/Conferences. 

a. East Coast Military Judges' Meeting 

Fleet Training Center, Atlantic, Dam Neck, 

-26 active-duty Navy and Marine Corps 

Navy and Marine Corps judges; Chief Ju

Force and Army; 1 active-duty Air Force ju

b. West Coast Military Judges' Meeting 

Naval Amphibious Base, Coronado, CA 

-21 active-duty Navy and Marine Corps 

Navy and Marine Corps judges; 1 active-du

c. Fifteenth Interservice Military Judges' Semi

Maxwell Air Force Base, Montgomery, AL 

-9 active-duty Navy and Marine Corps judg

judges 

d. National Judicial College, Reno, NV 


-Constitutional Criminal Procedures 


-2 active-duty Marine Corps judges 


-Medical & Scientific Evidence 


-2 active-duty Marine Corps judges 


· e. Military Judges' Course 


U.S. Army JAG School, Charlottesville, VA 

60 
i. Senior Officer Short Courses in Military Justice 

-Various times and places 

-Presented by 1 active-duty Navy or Marine Co

j. American Judge's Association Meeting, Colorado 

-ChiefJudge participated with civilian judges 

k. Military Law Institute 

-14th Annual Homer Ferguson Conference 

-1 active-duty Navy judge 

1. National Institute of Trial Advocacy (NITA) 

-various locations and times 

-8 active-duty Navy and Marine Corps judges h

ed in training trial advocates 

m. Trial Advocate and Judicial Training Evolution

San Francisco, CA 

-4 active-duty Navy judges and Chief Judges 

Force and Army; 14 reserve Navy judges; 1 

judge 

Philadelphia, PA 

-3 active-duty Navy and Marine Corps judges; 

judge; 1 civilian judge 

n. Reserve judge training for contested cases 

Minneapolis, MN 

-1 active-duty judge; 15 reserve Navy and 

judges 

o. Military Judges' Seminar 

Quantico, VA 

-3 active-duty Navy and Marine Corps jud

Marine Corps judges 

p. Island Judicial Circuit Trial Advocacy Training 

Pearl Harbor, HI 

-1 active-duty Marine Corps judge; 1 active-dut

1 USCMA judge 

q. Evidence 

University of San Diego, sponsored by the San D
u. TriService Judges Conference 


Garmish, Germany 


-1 active-duty judge 


v. National Council of Juvenile and Family Co

Charleston, SC 


-2 active-duty judges 


w. University of Minnesota/Military Judges' T

Minneapolis, MN 


-1 active-duty judge 


x. Environmental Law and Regulation Trainin

Washington, DC 


-1 active-duty judge 


y. Senior Legalman Course 


Newport, RI 


-1 active-duty legalman 


Visits by the Judiciary 

The Chief Judge presented his annual adminis

students at the military judge's courses at both 

Newport. 

The Circuit Military Judge, Atlantic Judicial 

ton, DC, also visited and participated in the inst

at the military judge's course at Newport. 

The Chief Judge, along with the Chief Judge

the Air Force worked toward uniformity in jud

frequently discussed matters of mutual concern. 

The Chief Judge visited and inspected the fol

cuits and branch offices: Northeast (Philade

branch (Newport); Tidewater (Norfolk); Piedmon

Sierra (Camp Pendleton); and Southwest (San Die

General 

Chief Judge courtesy calls on NlSOs, conveni

SJAs indicate that the overall quality of judicia

62 
ery of judicial services and improved field data. 

NAVAL LEGAL SERVICE COMM

Naval Legal Service Command (NA VLEGSVCC

21 naval legal service offices and 22 detachments 

of naval concentration throughout the world. A 

at NAS Moffett Field, California, opened in Marc

mand also includes the Naval Justice School at 

Island, and the Office of Legal Counsel at the Nav

napolis, Maryland. NA VLEGSVCCOM is com

Deputy Judge Advocate General of the Navy and 

cers (down from 398 in fiscal year 88), 245 enlisted

employees. The command constitutes about 40% of 

judge advocate strength. 

NA VLEGSVCCOM provides a wide range of 

afloat and shore commands, active-duty personnel, 

retirees. Specific functions include the provision 

courts-martial and administrative discharge boards

mands, claims processing and adjudication, cou

evaluation boards, and legal assistance. 

To facilitate high quality and responsive lega

LEGSVCCOM activities rely upon the Judge A

Management Information System (JAGMIS), a 

system which tracks each activity's case load from 

sition. The Navy Legal Affairs World-wide Suppo

LA WSS), now in development, will refine court-m

ing as well as expand the automation of the cla

ance, budgeting, and office-administration functio

the expansion of electronic-mail capability to more 

ties has facilitated rapid communication among NA 

activities, staff judge advocates, Marine Corps le

client activities around the world. 
During fiscal year 1989, the Naval Justice Sch

instruction to 6,931 students worldwide (1,253 i

ranging in length from four days to nine weeks)

school prepared and published volume 38 of the N

Other noteworthy developments include the gr

the new classroom addition to NJS which took p

1989, and awarding of the Meritorious Unit Co

Justice School for service performed from Apr

1988. An update of the School's courses follows: 

Law ofNaval Operations Workshop. Offered on

pose of this two-week course is to train judge adv

sponsible for advising commanders on internat

and their impact on plans and operations. The 

30 hours of classroom instruction and 32 hours 

cises and seminars. Attendees completing the t

fiscal year 1989 included judge advocates fro

Marine Corps (6), Air Force (4), Army (5), and Co

Staff Judge Advocate Course. Also offered on

pose of this three-week course is to provide trai

pects of military and administrative law likely 

by a command legal advisor. Included in fiscal 

hours of classroom instruction and 7 hours of 

and seminars. This past year, attendees includ

from the Navy (42), Marine Corps (5), and Army 

Senior Legalman Course. Offered annually, t

three-week course is to provide senior legalme

training in budget matters, civilian and milita

agement, and other management skills required 

visors at naval legal service offices. Included are 

room instruction and 13 hours of workshops an

teen senior enlisted personnel (18 Navy and 1 A

course in 1989. 

Lawyer Course. The Naval Justice School con

of the nine-week lawyer course during fiscal yea

64 
tary unit with no judge advocate/law specialist. I

course are 126 hours of classroom instruction and 79 

tical exercises and seminars. Attendees in fiscal year 

of 230 Navy officers, 19 Navy legalmen, 44 Marine C

Coast Guard officers, 1 Coast Guard yeoman, and 1 c

Senior Officer Course. This one-week course, sp

Chief of Naval Operations, prepares commanding 

tive officers, and officers in charge to handle approp

legal responsibilities. Six sessions of the course wer

port, Rhode Island, with 193 students attending. A

offerings of the course were held at the following w

tions: Jacksonville, Mayport, and Pensacola, Flori

(twice) and Parris Island, South Carolina; Norfolk, V

Bangor, Washington; San Francisco (twice), San Dieg

Beach, and Camp Pendleton, California; Rota, Spain

Hawaii; Subic Bay, Philippines; Yokosuka, Japan; 

North Carolina; New London, Connecticut; Quan

Philadelphia, Pennsylvania; Great Lakes, Illinois; 

Texas; and Guam. The 1,384 students attending th

cluded: 

USN: 905 (65.4%) 

USMC: 433 (31.3%) 

USCG: 27 (2.0%) 

USA: 11 (0.7%) 

USAF: 4 (0.3%) 

CIV: 4 (0.3%) 

Military Judge Course. This three-week course, 

year, trains active-duty and reserve judge advocates 

cial and general court-martial military judges. Th

cludes 7 4 hours of lecture and 30 hours of practica

seminars during which students preside as military 

various stages of moot courts-martial. In fiscal year 

Marine Corps, 7 Air Force, 1 Coast Guard, and 11 

completed this course. 
Guard, Marine Corps (equivalent) yeoman rating 

legal matters at small or isolated commands. In

clerk curriculum are 51 hours of lecture and 25 

exercises. In fiscal year 1989, 208 students com

202 Navy, 3 Marine Corps, 1 Coast Guard and 2 c

Reserve Courses. In addition to training act

the Naval Justice School also presents a numb

year to train inactive-duty reservists. The 

Lawyer Course prepares inactive-duty lawyers 

Marine Corps Reserve to perform the duties of a

advocate. Similarly, the two-week Reserve Leg

fered in three phases, prepares enlisted personn

duty Reserve to serve as legalmen. During fiscal 

dents completed an in-house course of Reserve 

school. 

Specialized Briefings and Presentations. In add

courses listed above, the Naval Justice School pr

395 hours of instruction on court-martial proce

seizure, confessions and admissions, nonjudicial 

tigations, administrative separations, law of th

armed conflict, and rules of engagement to 4,2

Naval War College, Surface Warfare Officers Sc

lains School, Officer Indoctrination School, 

School, and the Senior Enlisted Academy, all lo

Rhode Island. Naval Justice School instructors 

struction, principally in operational law, at the U

tary Academy, the United States Coast Guard Ac

locations on both coasts. 

MARINE CORPS ACTIVITIE

During fiscal year 1989, the Chief Defense Cou

Corps (CDCMARCOR) continued to expand and 

advocacy training programs given at Quantic

66 
The CDCMARCOR and Regional Defense Coun

quent command visitations and inspections at al

defense counsel were assigned. 

Fourteen Marine judge advocates attended 

schools, including the Naval War College, the 

University, the Marine Corps Command and Staf

phibious Warfare School, and the U.S. Army Jud

eral's School. Seven judge advocates received M

grees from the Judge Advocate General's Schoo

schools through the Special Education Progra

forty-seven judge advocates received continuing l

civilian and military schools through courses fun

ters, U.S. Marine Corps, and their parent comm

officers earned law degrees through the Funded 

Program. 

EVERETTE D. STUMBAUGH 

Rear Admiral, USN 

Judge Advocate General of the Navy 
FOR REVIEW UNDER ARTICLE 66 • BCO SPEOAL COURTS-MARTIAL 3077 

FOR EXAMINATKJN UNDER ARTCLE 69 • GENERAL COURTS-MARTIAL 90 

PART 4 • WORKLOAD OF THE Navy/Marine Corps COURT OF MIL

TOTAL ON HAND BEGINNING OF PERK>O 1056 

GENERAL COURTS-MARTIAL 
 321 

BCO SPEClAL COURTS-MARTIAL 735 

REFERRED FOR REVIEW 4100 

GENERAL COURTS-MARTIAL 853 


9CO-SPEClAl COURTS-MARTIAL 
 3247 

TOTAl CASES REVtE'NEO 4247 

GENERAL COURTS-MARTIAL 876 

9CO-SPEClAl COURTS-MARTIAL 3371 

TOTAL PENDING AT Q..OSE OF PERIOD 909 

GENERAL COURTS-MARTIAL 298 

BCO-SPEaAL COURTS-MARTIAL 611 

RATE OF INCREASE (+)/OEalEASE {-)OVER NUMBER OF CASES 

REV1EWED OURtNG LAST REPORTING PEAIOO +22% 

PART 5 - APPELLATE COUNSEL REQUEST BEFORE Navy/Marine Co

REVIEW 

NUMBER 3433 

PERCENTAGE 83.7% 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 

PERCENTAGE OF tNCREASE(+)/DECREASE(-) OVER PREVIOUS REPORTING PERMJO 

PERCENTAGE OF TOTAL PETITIONS GRANTED 

PERCENTAGE OF INCREASE(+)/DECREASE(-} OVER PREVIOUS REPORTING PERK>D 

PERCENTAGE. OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CX>MR 

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

LAST REPORTING PERKX> 

PAGE 1 OF2 

68 
PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 155

PART 10 • STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 806,870 

PART 11 • NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 53,642 

RATE PER 1,000 66.86 

RATE OF INCREASE(+ )/DECREASE(-) OVER PREVtOUS PERIOD -7.16 

PAGE20F2 

pq

Code of Military Justice (UCMJ), The Judge Ad

Major General Keithe E. Nelson, and Deputy Judg

eral, Major General David C. Morehouse, made offi

tions of field legal offices in the United States and 

also attended and participated in various bar asso

and addressed many civil, professional and militar

AIR FORCE COURT OF MILITARY R

On 1 March 1989, the Air Force Court of Milita

JAR), located at Bolling AFB, Washington, D.C., w

Directorate, attached directly to the Office of The 

General. The Court was formerly a division under t

rectorate, which continues to supervise the Appell

and Defense Divisions, the Military Justice Divisio

Judiciary Division. The Court made arrangements 

nificant unpublished opinions entered into the USA

Information Through Electronics (FLITE) network

had previously been available only through Wes

The Court was comprised of nine appellate judges 

Fiscal Year 1989. The number of cases reviewed de

from the prior year. The Chief Judges of the Co

Review appointed a committee in November 1988 

ethics and discipline. This committee, with one j

court, met frequently during 1989. They prepared 

form Code of Conduct and proposed Regulations 

Relating to Judicial Discipline. These documents pr

procedures which would affect both appellate and t

committee was expanded in July 1989 to include 

Judge of each service. 
and Air Force; members of Congress; and other 

civil agencies. Several of the Directorate's activ

below: 

a. The Judiciary Directorate serves as the act

review of military justice issues in application

Air Force Board for Correction of Military Rec

ions were provided to the Secretary of the Air 

105 applications. 

b. The Directorate received 557 inquiries in sp

ing either formal written replies or telephonic r

ecutive officials, including the President and me

c. The Directorate provided a representative 

activities involving military justice. This include

Committee and support for the Code Committee. 

LEGAL DATA AUTOMATION AND IN

PROGRAM 


The Directorate of Legal Information Service

develops and manages automated managemen

tems in support of claims, military justice, offic

puter assisted legal research and other Air Forc

of Defense legal services programs. During this 

partment was able to largely complete its inten

personal computers for personnel at all of its 3

mail was implemented worldwide among all ju

major commands, Headquarters USAF and ma

fices. The JAGMAIL electronic mail system w

hosted on the Army Financial Management S

Agency in accordance with an interagency agr

dred and ten offices were connected to the sys

an AT&T 3B2 minicomputer was purchased w

moving the mail system in-house and supporting 

tion and report dissemination. Also during FY 

72 
searches per month. Expansion of the on-line FLIT

proximately 3000 other DoD offices and agencies is 

ning in FY 90. The FLITE Service Center continue

monthly average of over 450 searches for various Do

and the Executive Office of the President reques

procurement and finance offices worldwide not 

FLITE. In addition, the procurement action was be

fense Emergency Authorities Retrieval and A

(DEARAS) as a part of the Directorate's mission as 

tive agent for computer assisted legal research. Tw

tracts were awarded, one to West Publishing Comp

to the West reporter data bases included in FLITE 

data Systems Inc. for technical services in suppor

·systems using the INQUIRE software. Finally, alph

new Air Force Claims Information Management Sy

was concluded, a major step to replacement of the 

Management Program (CAMP), an Air Force 

system. Anticipated completion of this major d

project with full beddown worldwide is in FY 90. 

mated claims program will benefit both supervisor

as well as local level claims processing. 

TRIAL JUDICIARY 

The Air Force Trial Judiciary had an average 

active duty and 5 reserve military judges, including 

Judge and his Assistant, assigned to 10 locations w

dition to presiding over courts-martial and adm

charge boards, military judges are actively involved 

cers in public hearings held to consider draft enviro

statements. 

The Trial Judiciary has been working on a pr

laptop computers to provide written instructions to 

bers. Ten laptop computers have been given to sele
22 during FY 1989. The average number of day

creased from seven in FY 1988 to eight in FY 19

of all courts prosecuted by CTC increased from 

37% in FY 1989. The total number of general c

by CTC increased from 483 in FY 1988 to 548 in 

total number of special courts-martial tried by C

104 in FY 1988 to 66 in FY 1989. The percentage 

martial tried by circuit trial counsel increased 

1988 to 58% in FY 1989, while the percentage 

martial tried by circuit trial counsel fell from 1

10% in FY 1989. 

In support of the urinalysis program and to fu

administrative skills of the circuit trial counse

conducted at Brooks AFB. The urinalysis pro

support the important fight against drug abuse 

Providing a working knowledge of the Brooks uri

essential to just results in all urinalysis courts-m

istrative proceedings. To enhance the capability 

ecutors to meet the continuing challenges of th

attendees focused on methods of maximizing the 

prosecutors, trial tactics, and the intricacies of r

cisions bearing on military practice. 

APPELLATE GOVERNMENT CO

For the second consecutive year, direct U.S

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

(COMA) significantly increased appellate go

(JAJG) workload in this fiscal year. Air Forc

more petitions of writs of certiorari in FY 1989 th

ices combined. The number filed in FY 1989 eq

filed in FY 1988, which was a 180% increase ove

ly, briefs in opposition were filed in 80% of all 

increased some 400% over the number filed in 

74 
Service Appellate Counsel Workshop at Andrews A

spiration for the workshop, which was attended by 

pellate counsel from all services, came from Colo

noni, the Deputy Chief of JAJG. The Judge Adv

the U.S. Army made several members of the fac

school available to participate along with appella

all the services as presenters for the sessions. Colo

diligent efforts produced an event hailed by all at

senters alike, as the most worthwhile event of it

memory. 

AREA DEFENSE COUNSEL PROG

To better insure that Area Defense Counsel (A

available to provide timely defense services to the 

at their assigned bases, the Defense Services 

placed an increased emphasis on reducing ADC t

1989. One significant step has been the redesign

two-manned ADC offices to one assigned ADC a

Circuit Defense Counsel (CDC). The CDC is avail

surrounding bases in the circuit when necessary, w

mains at home to provide defense services at the as

JAJD renewed its emphasis on training the fund

practice through the ADC Orientation Course. 

A.De's within the CONUS are scheduled to atten

Bolling AFB prior to or within the first few we

signed as an ADC. Counsel acquire the basics of 

as well as acquire knowledge in the more complex 

including, but not limited to, handling of experts a

tion of expert testimony in a variety of scientific ar

ADCs up-to-date on new problem areas, JAJD be

quarterly Defense Bulletin, informing defense cou

of recent developments in the law. 
AFCMR 

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

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

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

COMA 

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

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

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

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

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

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

CONFINEMENT FACILITIES 

At the end of the fiscal year a total of 766 Ai

were in confinement. That figure represents abou

from the number in confinement at the end of FY 

decrease, there were more officers and women in 

at the end of the previous fiscal year. The num

prisoners on parole, increased from 225 at the e

265 at the end of FY 1989, 18% more than last ye

During the fiscal year, some of the pressure o

finement facilities was relieved by the new En

Custody Program at Lowry. Under the program, 

tional bed spaces were initially made available at 

ed prisoners who had achieved minimum custod

the fiscal year that number had increased to 42

cilitated prisoner transfers from the United S

Barracks (USDB), freeing up USDB spaces for oth

oners. At the end of the fiscal year there was no 

ers awaiting transfer to the USDB or other ce

facilities. 

The return to duty rehabilitation (RTDR) prog

CRS, Lowry AFB, had another successful year. S

were restored to productive Air Force duty follow

76 
prosecuted precedent-setting 18 U.S.C. 208 conflict-

The Division continues to play a supporting role in 

of the ongoing "Ill-Wind" investigations. 

CIVIL LITIGATION 

The volume of civil litigation challenging action

the Uniform Code of Military Justice increased in F

all of these cases involved petitions for habeas co,.P

Force inmates in the United States Disciplinary Ba

collateral review of their cases. Issues included app

sentence, insufficiency of the evidence, and various 

ings made at the trial. In addition, one inmate 

standards used for the revocation of his parole. The

sions issued by any Federal district court granting 

these individuals. 

ENVIRONMENTAL ACTIONS 

In 1989, three Article 15, UCMJ, actions were ba

directly related to environmental matters. 

PREVENTIVE LAW AND LEGAL ASSIS

PROGRAM 


The Preventive Law and Legal Aid Group (JAC

provision of legal services to over 439,000 clients 

categories continued to be wills and domestic relat

of JACA served as liaison to the American Bar Asso

ing Committee on Legal Assistance for Military Per

Standing Committee on Lawyers in the Armed Force

The Air Force Judge Advocate General School con

sponsible for the expansion of the Preventive Law 

book System. JACA continues to be responsible for 
The Reporter continued to provide timely info

variety of legal issues. Lead articles addressed su

topics as: succession to command, the Posse C

patent system, and bid protests in government co

EDUCATION AND TRAININ

The Judge Advocate General's Department pr

tinuing legal education (CLE) opportunities to 

those of its sister services, during FY 1989. 

During FY 1989, approximately 1300 Air Forc

ing 560 air reserve force judge advocates) attend

the Air Force Judge Advocate General School, M

bama. Of these, about 420 active duty judge ad

all of the air reserve force judge advocates, recei

training. 

The Department arranged legal training for 2

Army Judge Advocate General's School, Charlott

at the Naval Military Justice School, Newport, 

42 at the Lowry Technical Training Center, Low

Working with AFIT, the Department sent 61 at

ment courses at the AFIT School of Systems and 

Patterson AFB, Ohio. Sixteen military judges 

sponsored by the National Judicial College at 

Nevada in Reno. Six medical law attorneys atte

fered nation-wide by various civilian organiza

judge advocates participated in the Departmen

(LL.M.) Program in the fields of procurement l

law, labor law, and international law. 

78 
primary course, gives new judge advocates a fou

military law and basic advocacy skills. The course 

from seven to eight weeks in FY 1989. The cours

three times during the year and involved the in

students. 

Specialty courses taught at the AFJAG School of

in trial advocacy, claims and tort litigation, labor 

tal law, international operations law, government 

taxation. The AFJAG School also conducted cours

advocates, military judges of all armed services, l

ers, and both Air National Guard and Air Force R

vocates. 

The Air Force Judge Advocate General Scho

Center for Professional Development, Maxwell AF

ducted the following courses affecting military ju

a. Advanced Trial Advocacy Course-This one-

vides training in advanced advocacy skills to judg

rently serving as, or selected for, circuit trial or de

judge advocates attended this course. 

b. Judge Advocate Staff Officer Course-A cours

weeks of instruction on the basics of military law. 

offered three times during FY 1989 and attended 

advocates. 

c. Reserve Forces Judge Advocate Course-A 

which provides. Air Force Reserve personnel and N

men with up-to-date information on recent devel

tary law. This course was offered four times in F

attended by 184 students. 

d. Staff Judge Advocate Course-This two-week 

recently assigned staff judge advocates with both a 

in military law and an update on recent developm

is offered each year to 70 students. 

e. Trial and Defense Advocacy Course-This one

fered once each during FY 1989, provides basic a
available in FY 1989 were Environmental Law

Federal Income Tax Law, Government Contract 

ment Lawyer and Professional Responsibility, I

and Supreme Court Trends in Criminal Justice. 

While not approved for CLE credit, the AF

tained several instructional videotapes for per

enrichment. These videotapes addressed 64 topi

trial advocacy, criminal law, environmental law

and tort law, acquisition law, income tax, and civ

Publications 

The AFJAG School was responsible for Th

Review. This legal periodical is published semian

1989, featured both a traditional edition concern

lated, legal issues confronting the armed forces a

ed exclusively to environmental law. 

The AFJAG School also edited and distribut

informal collection of informative material pri

judge advocates providing legal assistance to el

School also maintained the Preventive Law Cle

logued repository of materials designed to help 

avoid personal legal problems. Clearinghouse m

by judge advocates around the globe and collec

PERSONNEL 

As of 1 October 1989, there were 1,373 judge a

duty. This total included 2 major generals, 3 brig

colonels, 232 lieutenant colonels, 335 majors, 63

first lieutenants. 

KEITHE E. NELSON 

Major General, USAF 

The Judge Advocate General 

80 
FOflll JllllVl(W UNOE" A"TICU M · GEN£c:!AL. COUFillTS·,,,,.•FllTIAL 

FOR "EV•Ew UHDE .. ••TICLE M. sec Sl'ECIAL COull'T!-MA.ATIAL 

FOii UC:AM.l.,..ATlON UNDER AJllTICLE 159 · GENEPIAL COL.IPITS-UAPITlA.L. 76 

PART•· WORKLOAD OF TliE Air Force COURT OF MILITARY 

TOTAL CASES lllEVIEWEO 111 R 

_c_eN_E_A_•~·~c_o_u_A_T_s_...._.._A_T_•.._•_______7~~f;~l___...,.____.,...._

BCD S.. ECIAL COUPITS-MARTIAL 357 -: ·. 

TOTA.L PENOING AT CLOSE OF ll'ERIQO 2 J 6 

BCD SPECIAL COURTS--.AARTIAL 5 6 

RATE OF INCREASE l•l/OECREASE t-1 OVER NU"48ER OF CASES 

REVIEWED DURING LAST RU'ORTING PER100 

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE Air Force 

REVIEW 

NUMBER 

PERCENTAGE 95 4% 

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

PERCENTAG& Of: COMfll fllEVIEWEO C.J.SES t:QFIWAROEO TO USC"4A 6 71 /J J JS 

PEllllCINTA.GE 0" INCREASE (•!,OEC_RE.J.SE • :».tER PREV10US AEPORTl"-IG P~AiQQ 

l'EfllCENTAGI 011 TOTA.L PETITIO"'S :,A~-~-'-'~"---------~4~)~/~fi~?~l__

l'ERCENTA.GE 011' INClltEASE (•I OECAEASE t ·l OvEA PREVIOUS REPORTP\1C PEA1QO 

ll'ERCENTAGE OF PETITIONS GRA/\lf~'.)_Oi: l'i.JTAL.. C.1.SES REVIEWED BY CO\.'A 4] /]]] 

A.A.TE OP INCREASE l•)/OECREASE I • t")'vEA r ... e "'UMBER OF C.\SES l'IEV EWE:J :JUAl"'G 

LA.ST REPORTING PERIOD 

P-tGE I uf.: 
flritUMBIPI 0, COMPLAINTS 26 

PART 10 ·STRENGTH 

AVE!llAQIACTIVEDUTYST ..ENGTH 579 ,53§ 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES Wl"IERE NONJU01C!AL. lllUNISHMENT IMPOSED 

AATE PE'llt 1.000 

RATE OF INCREASE !+I/DECREASE l-1 OVER PREVIOUS PERIOD 

P.4G£ ~OF~ 

82 
pg y

Fiscal Year 89 88 87 

General Courts-Martial ............................ 5 13 11 

Special Courts-Martial .............................. 40 25 24 

Summary Courts-Martial ......................... 48 35 63 

Total ............................................................. 93 73 98 

COURTS-MARTIAL 

Attorney counsel were detailed to all special cou

tary judges were detailed to all special courts-m

cases, the presiding judge was the full time gener

judge. When he was unavailable, military judges 

mary duties were used for special courts-martial

detail of judges was centrally exercised by the Ch

and all requirements were met in a timely fashion. 

GENERAL COURTS-MARTIAL 

Of the five accused tried by general courts-m

year, three were tried by military judge alone. Of 

received a bad conduct discharge and one officer re

sal. One of the two accused tried by courts with m

a sentence which included a dishonorable discharg

received a bad conduct discharge. One of the 

charges here referred to general courts-martial w

grades E-1 through E-3), three were petty officers 

through E-6), and one was a Lieutenant Command

The following is a breakdown of sentences awar

tary judge alone in general courts-martial (3 conv

these convictions, the accused pled guilty to all cha

cations. 
Sentence 

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

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

confinement······················································································

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

forfeiture of all pay and allowances .............................................

The following indicates the four sentences im

eral courts-martial in the past four fiscal years. 

P

Number of 

FY Forfeitures Confinement R

Convictions 

i

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

88 . 12 8 (75%) 12 (100%) 9 

87 11 5 (45%) 8 (73%) 8 

86 5 5 (100%) 5 (100%) 4 

The following table shows the distribution o

tions referred to general courts-martial. 

Violation of the UCMJ, Article 

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

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

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

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

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

108 (sale, loss, damage, destruction, wrongful 

military property of the U.S.) ........ ,...............

109 (willful destruction of property other than U.S

l 12(a) (controlled drug offenses).....................................

84 
fiscal year were tried by the military judge alone. 

duct discharges were awarded; seven to accused tr

judge alone, and five to accused tried by a court 

Fourteen of the accused whose charges were ref

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

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

petty officers (pay grade E-7), one was a senior ch

(E-8), and one was a chief warrant officer (W-3

courts-martial resulted in acquittals. 

The following table shows the distribution of th

tions referred to special courts-martial. 

Violation of the UCMJ, Article 

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

83 (fraudulent enlistment, appointment or separation

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

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

90 (willfully disobeying superior commissioned office

91 (insubordinate conduct toward a petty offiicer) .....

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

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

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

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

military property of the U.S.) ...............................

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

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

115 (malingering) .................................................................

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

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

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

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

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

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

134 (general)..........................................................................
reduction in rate.................................................................................

forfeiture of pay ($20,552 total)......................•.•..•............................

fme ($9,162.00 total) ...........................................................................

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

other (extra duty, reprimand, etc.) ..................................................

The following is a breakdown of sentences aw

courts-martial with members (20 convictions). In 

convictions, the accused pied guilty to all charg

tions. 

Sentence 

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

confmement ..........................................................................................

hard labor without confmement .......................................................

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

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

forfeiture of pay ($6,858 total) ......................•..•................................

fme ($4,000 total) ...........•.......•.....•.....•..................•.............................

other (extra duty, reprimand, etc.) ...................................................

The following indicates the four sentences imp

cial courts-martial in the past four fiscal years. 

Number of R

FY Forfeitures Confmement 

Convictions 

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

88 25 9 (36%) 13 (52%) 18 

87 23 10 (43%) 13 (57%) 21 

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

86 
In addition to the required reviews of courts-m

as a result of petitions filed under Article 69, UCM

ary review was conducted under Article 69 of all co

requiring appellate review. 

PERSONNEL, ORGANIZATION, AND T

The Coast Guard has 155 officers designated a

Gudge advocates) serving on active duty-118 are 

billets and 37 are serving in general duty billet

Coast Guard officers are currently undergoing post

in law and will be certified as law specialists at th

their studies. 

The Coast Guard has one full-time general co

judge. Senior law specialists, most serving as distr

are used as military judges in special courts-m

quired. 

Two attorneys from the Military Justice Divisio

Headquarters, attended an ABA sponsored Semin

Argument to the Court" conducted on 4-6 May 19

tracked arguments and issues in a case from the 

appellate argument and culminated with argumen

preme Court. Previously designated attorneys prep

argued the case during the seminar before panels 

eral and local judges, including some Federal Circu

U.S. COAST GUARD COURT OF MILITAR

During fiscal year 1989, the Court was composed 

military judges assigned by the General Counsel, 

Transportation, in his capacity as Judge Advoca

Chief Judge and one other Judge are civilians. 
Services Appellate Military Judges Conference 

Baum chaired one of the discussion sections. M

Chief Judge Baum, Judge Bridgman, Judge Jos

Barry attended the Coast Guard Legal Officers C

burg, Virginia, where, as part of that confer

Baum, Judge Bridgman and Judge Barry met 

trial judges to discuss areas of mutual concern. 

ence, Chief Judge Baum also participated in a 

on the topic of administrative discharge boards

Chief Judge Baum, Judge Bridgman and Judge 

14th Annual Homer Ferguson Conference spon

Court of Military Appeals and the Military Law 

the two week period from June 26 to July 7, 

Baum attended an Intermediate Appellate Jud

sored by the Institute of Judicial Administration 

versity School of Law. During the seminar, facu

marily of appellate judges, provided two weeks 

cussions on a variety of topics relating to appella

and opinion writing for the 26 appellate judges a

This past year, Judge Barry chaired the Fede

Military Judges Committee, which, among its o

sored the All Services Appellate Military Judges 

vember. Judge Barry was also elected President 

cates Association in August 1989, after serving 

dent for the past year. In September 1989, Chie

designated for the upcoming year as Deputy Ch

Bar Association's Judiciary Section, which inc

Judges Committee among its various judicial co

past year, Chief Judge Baum and Judge Barry 

Federal Bar Association Pentagon Chapter Lun

a regular basis to listen to leading speakers from 

civilian legal community. In August 1989, Fede

activities culminated with the Association's Ann

ing in Washington, D.C., which was attended by 

88 
Federal Bar Association News and Journal of an 

thored by Chief Judge Baum and Judge Barry: Unit

Marine Corps Court of Military Review v. Carlucci

Judicial Independence. That article analyzed the C

Appeals' landmark Carlucci decision and set out i

the future from that decision. Certain of those im

been addressed over the past year by a study gro

judges from each of the Courts of Military Review. 

work of that group has been the drafting of a Code 

duct for military judges and an appropriate proced

with allegations of violations of that code. Chief Ju

ticipated thr~mghout the year in the work of tha

Coast Guard Court's representative. 

ADDITIONAL MILITARY JUSTICE STA

Appendix A contains additional basic military j

for the reporting period and reflects the increase/

workload in various categories. 

J. E. VORBACH 

Rear Admiral, U.S. Coast Guard 

Chief Counsel 
FOR REVIEW UNDER ARTICLE 66 • BCD SPECIAL COURTS-MARTIAL 1

FOR EXAMINATION UNDER ARTICLE 89 • GENERAL COURTS-MARTIAL 

PART 4 • WORKLOAD OF THE COAST GUARD COURT OF MIL

TOTAL ON HANO BEGINNING OF PERIOD 1

GENERAL COURTS-MARTIAL 11 

BCD SPECIAL COURTS-MARTIAL 3 

REFERRED FOR REVIEW 1

GENERAL COURTS-MARTIAL 8 

BCD-SPECIAL COURTS-MARTIAL 11 

TOTAL CASES REVIEWED 2

GENERAL COURTS-MARTIAL 1l 

BCD-SPECIAL COURTS-MARTIAL 10 

TOTAL PENOlNG AT CLOSE OF PERIOD 1

GENERAL COURTS-MARTIAL 6 

BCD-SPECIAL COURTS-MARTIAL 4 

RATE OF INCREASE (+)/DECREASE (-)OVER NUMBER OF CASES 0% • Same 

REVIEWED DURING LAST REPORTING PERtOD reviewed ea

PART 5 ·APPELLATE COUNSEL REQUEST BEFORE COAST GU

REVIEW 

NUMBER 23 

PERCENTAGE 100% 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 1/2

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

PERCENT AGE OF TOTAL PETITIONS GRANTED 

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

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA 

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

LAST REPORTING PERIOD 

PAGE 1 OF2 

1 One of the two dishonorable discharges is in fact a dismissal. 2 Included within this total are sixteen Article 66, UCMJ, case referrals, one Article 

extraordinary writs. 3 Included within this total are 21 decisions pursuant to Article 66, UCMJ, and two a

writs. 

90 
PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMBER OF COMPLAINTS I 

PART 10 • STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 37,701 

PART 11 • NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDtCIAL PUNISHMENT IMPOSED 

RATE PER 1,000 38.35 

RATE OF INCREASE(+ )/DECREASE(-) OVER PREVK>US PERIOO -18% 

PAGE20F2