MILITARY JUSTICE 


INCLUDING SEPARATE REPO

of the 


U.S. COURT OF MILITARY APP

THE JUDGE ADVOCATES GEN

OF THE U.S. ARMED FORCE

AND THE CHIEF COUNSE

OF THE U.S. COAST GUAR

For the Period 

October 1, 1984 to September 30, 1

PROPERTY OF U.S. ARMY 

THE JUDGEADVOCATE GENERAL'S S

LlBRARY 
COMMITTEES ON ARMED 


SERVICES 


of the 


SENATE AND OF THE 


HOUSE OF REPRESENTATIVES 

and to the 

SECRETARY OF DEFENSE 

AND SECRETARY OF TRANSPORTATIO

and the 

SECRETARIES OF THE DEPARTMENTS O

THE ARMY, NAVY, AND AIR FORCE 

PURSUANT TO THE 


UNIFORM CODE OF MILITARY JUSTICE 


For the Period 


October 1, 1984-September 30, 1985 
REPORT OF THE UNITED STATES COURT OF MILITARY APPEALS 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY 

REPORT OFTHE JUDGE ADVOCATE GENERAL OF THE NAVY 

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE 

REPORT OF THE CHIEF COUNSEL OF THE COAST GUARD 
The Judges of the United States Court of Military Appea

Advocates General of the Army, Navy, and Air Force; the Ch

the Coast Guard; the Director, Judge Advocate Division, Headqu

States Marine Corps; Mary Ellen Hanley, Esquire, and Profess

Pye submit their annual report on the operation of the Unif

Military Justice, pursuant to Article 67(g), Uniform Code of M

10 u.s.c. § 867(g). 

During fiscal year 1985, the Code Committee met on severa

review the administration of military justic1.: within the Arm

Consistent with an expression of Congress that such meetings s

to the public, members of the public were invited to atten

meetings during fiscal year 1985. These public meetings were att

civilian and military attorneys who, on several occasions, w

express their views on various aspects of military justice whi

considered by the Code Committee. The members of the Co

were pleased that members of the general legal community 

interest in the administration of military justice. 

During its initial meeting in fiscal year 1985, held on Novem

the Code Committee solicited views from its members as to t

impact of the Military Justice Act of 1983 on the administrati

justice at both the trial and appellate levels. During this meeting 

of the Code Committee discussed preparing a response to th

commission established under the Military Justice Act of 1

recommendations on several proposed changes to the Unif

Military Justice, which was scheduled for release in December 19

The Code Committee subsequently met on January 24, 1985

response to the report filed by the commission under the Milita

of 1983, and as Chairman of the Code Committee, Chief Judg

Everett later submitted a letter •setting forth the Code Committ

to the Honorable Barry M. Goldwater, Chairman of the Commi

Services, U.S. Senate, and the Honorable Les Aspin, Cha

Committee on Armed Services, U.S. House of Representatives. 

of this letter had been coordinated with all the members and pres

of the Code Committee members with respect to each of the 

recommendations. 

• A copy of this letter is set forth as an Appendix to this Joint Re
Separate reports of the United States Court of Military App

individual services address further items of special interest to the 

on Armed Services of the United States Senate and House of Rep

as well as to the Secretaries of Defense, Transportation, Army, N

Force. 

ROBINSON 0. EVERETT 

Chief Judge 

WALTER T. COX, III 

Associate Judge 

Major General HUGH R. OVERHOLT 

The Judge Advocate General, U.S. Army 

Rear Admiral THOMAS E. FLYNN 

The Judge Advocate General, U.S. NAVY 

Major General ROBERT W. NORRIS 

The Judge Advocate General, U.S. Air Force 

Rear Admiral, EDWIN H. DANIELS 

Chief Counsel, U.S. Coast Guard 

Brigadier General DAVID M. BRAHMS 

Director, Judge Advocate Division, 

Headquarters, U.S. Marine Corps 

MARY ELLEN HANLEY, Esquire 

Professor A. KENNETH PYE 

2 
U.S. Senate 

222 Senate Russell Office Building 

Washington, D.C. 20510 

Re: Comments 

67(g) Code Com

Commission's R

Military Justic

1983. 

Dear Mr. Chairman: 

The Military Justice Act of 1983 directed the S

Defense to appoint a nine-member Commission to make 

recommendat'tons on several proposed changes in the Un

Military Justice. The report of this Commission was 

submitted to each Armed Services Committee, and to th

Committee established by Article 67(g) of the Uniform 

turn, the Code Committee -- which consists of the jud

U.S. Court of Military Appeals, the senior military la

Armed Force, and two public members -- was to comment 

Report. 

The Commission appointed by Secretary Weinberge

its report in December, 1984. This report has been s

discussed by the members of the Code Committee. In a

with the provisions of section (9) (bl (4) of the Milit

Act of 1983, the Code Committee now presents these co

1. Whether the sentencing authority in c

cases should be exercised by a military Judge i

noncapital cases to which a military judge has 

detailed. 

Comment: The Commission rejected the pr

sentences be imposed by military judges in all 

cases tried by court-martial. Most of the mem

Code Committee agree with this position. Unlik

civilian community, where sentencing usually is 

judges, court-martial members adjudged all sent

1969. Since then an accused has been allowed t

by members and to be tried and sentenced by a m

judge; but, absent this waiver, he still is bot

sentenced by court members. 

Many accused servicemembers -- especially 

and Air Force -- choose to be tried by court mem

have all sentencing done by judges would elimina

considered important by many. Under current law 

officers continue to have some opportunities to 

in sentencing; and it is felt that this particip

provides them helpful experience and training. 

judge-alone sentencing would eliminate these opp
for the first time would permit the same allocatio

responsibilities typically found in the civilian 

community -- namely, trial by a group of lay perso

sentencing by judge alone. The Code Committee sug

the American Bar Association proposal be further e

Congress in reviewing the Commission's report. 

2. Whether military judges and the Courts o

Review should have the power to suspend sentences. 

Comment: The Commission concluded that the 

to suspend court-martial sentences should not be g

military judges at either the trial or appellate l

majority of the Code Committee concurs in this vie

Code Committee recognizes that suspension of sente

useful tool for rehabilitation and that its use by 

commanders should be encouraged. To this end seve

Committee members have suggested procedural change

could be made by the President through amendment o

Manual for Courts-Martial. To assure that, in tri

military judge alone, the recommendations of milit

for suspension of an adjudged sentence would have 

chance for acceptance by the commanding officers w

already empowered to suspend sentences, such trial 

should be urged to express in some detail in recor

trial why they believe suspension of sentence is 

appropriate. In a court-martial before members, t

military judge in his instructions on sentencing m

similarly advise the court members that they may m

nonbinding recommendation to the convening author

sentence be suspended and that, if they do so, the

explain the basis for their recommendation. Conv

authorities, in turn, might be required to express 

reasons for rejecting the suspension recommendatio

military judge or of court members. As to suspen

sentences at the appellate level, a possible solut

existing law has been suggested in a judicial opin

United States v. Clark, 16 M.J. 239, 242 (C.M.A. 1

(Everett, C.J., concurring). 

3. Whether the jurisdiction of the special 

court-martial should be expanded to permit adjudgm

sentences including confinement of up to one year, 

if any, changes should be made to current appellat

jurisdiction. 

Comment: The Commission recommended expand

jurisdiction of the special court-martial to perm

adjudging confinement at hard labor for a maximum 

year instead of the current limitation of six mon

clear majority of the Code Committee also favors t

4 
y

properly be referred to the expanded special court-

On the other hand, some Code Committee membe

anticipate that some serious cases might be diverte

the general court-martial level where they properly

At least one Committee member believes that the pre

jurisdictional limitation on the special court-mar

more consistent with its historical role. 

In many cases that are now sent to special 

courts-martial, the suggested expansion in confinem

jurisdiction would establish a higher maximum punis

that could be imposed by the court-martial for the 

being tried. This increase in the maximum punishme

exert a greater pressure upon the accused to plea b

and, in that event, the percentage of contested cas

likely be reduced. To the extent that sentencing 

authorities -- whether the judge or court members -

the maximum punishment into account in deciding wh

sentence to impose, the doubling from six months to 

months of the maximum punishment imposable by a spe

court-martial may tend to increase the sentence wh

actually adjudged by special courts. On the other 

cases referred to special courts that otherwise wo

referred to general courts would tend to have lesse

sentences. 

4. Whether military judges, including those 

at special and general courts-martial and those sit

the Courts of Military Review, should have tenure. 

Comment: The Commission rejected a proposal 

military judges at the trial and appellate level be 

fixed terms of office. There is no evidence to sug

judges are removed after a short time in office in 

punish them for unpopular rulings. Adequate admin

procedures presently exist to remove a military jud

misconduct or disability. 

Unlike most civilian judges, military judges 

enjoy many of the practical benefits of tenure bec

senior military officers, they usually are entitled 

on active military duty for 20 years, after which t

retire and draw retirement pay. To impose a forma

of tenure at this time would be an overkill. 

The Commission's consideration of tenure for 

judges appears to have heightened the attention be

to the position of a military judge. Certainly, i

important that this position be viewed as career-en

However, the grant of formalized tenure to military 

with a consequent reduction in the present flexibi
Granting Article III status, as discussed in th

following paragraphs, would solve the retirement pro

the Court of Military Appeals, since presumably the 

would then be participants in the judicial retiremen

program for Article III judges. However, a decision 

Article III status for the Court has major implicati

should not be embraced solely as a retirement remedy

6. Whether the United States Court of Militar

Appeals should be an Article III court under the Un

States Constitution. 


Comment: In connection with evaluating the ne

an improved retirement plan, the Commission was aske

consider whether the Court of Military Appeals shoul

Article III status. A majority of the members answe

the affirmative -- on the explicit condition that th

Court's present jurisdiction not be increased. 


However, a clear majority of the Code Committe

members -- which includes every uniformed service 

representative -- is opposed to Article III status f

Court. It is felt by that majority that the Court o

Military Appeals is assigned a limited role within t

overall military justice system and that it should r

responsible to the Commander in Chief. In opposing 

III status, the uniformed members of the Code Comm

suggest that, because the military society itself is 

the Court of Military Appeals is and must be differe

from the Article III courts. In their view, the fac

Article III judges are given life tenure, which the 

of the Court of Military Appeals do not have, would 

in consonance with the Commander in Chief's exercise 

responsibilities. 

Those members of the Code Committee who consi

a grant of Article III status is desirable believe 

a change would be responsive to the Court's role in 

military justice system -- especially now that the 

Court exercises certiorari jurisdiction over the Co

Military Appeals. In their view, the absence of Ar~

status for the Court reflects a failure to recogniz

the significance of its duties; and, grouping judge

Court of Military Appeals with other Article I judg

such as bankruptcy judges and judges of the Tax Cou

Claims Court -- seems unrelated to the uniqueness o

military society. 

7. Whether the membership of the United Stat

of Military Aopeals should be increased to five jud

Comment: Although the question was not speci

included in its charter, the Commission unanimously 

6 
/?,?)~

Robinson O. Everett 

Chief Judge 

U.S. Court of Milit

Chairman 
8 

THE BUSINESS OF THE COURT 

During the fiscal year 1985 term of the Court, 2753 petitio

review, certificates for review, cross-petitions, granted r

petitions, petitions for new trial, petitions for extraordinary 

appeal petitions were filed with the Court. This represents a 

percent from the fiscal year 1984 term and is the first term i

fiscal year terms of the Court that a record number of cases 

Among the petitions for grant of review filed with the Court, on

cases in which the United States had taken an appeal from a m

adverse ruling under the newly enacted provision of Article 

u:s.c. §862. 

The Court reviewed and acted on 2767 petitions for grant o

fiscal year 1985. Further review was granted in 264 of these ca

percent of the cases considered. On the master docket of man

certificates for review, and granted petitions, the Court took fin

casesl. Approximately 59 percent of the Court's actions on the 

cases resulted in reversal, in whole or in part, of the decision

of Military Review. Although the Court operated with only tw

during virtually all of this fiscal year term, the total number of c

the end of this period was reduced by about 5 percent to a year

811 cases, as compared with a year-end balance of 862 cases in 

The number of petitions for extraordinary relief and writ 

filed with the Court during fiscal year 1985 was slightly less th

year 1984, as 38 such petitions were filed during the curren

compared with 44 such petitions during fiscal year 1984. How

experienced an increase of approximately 10 percent in the num

filed during fiscal year 1985 over fiscal year 1984, as 1138 mo

in fiscal year 1985 as compared with 1036 motion filings in fisc

In addition to its case review workload, the Court admitted 4

practice before its Bar during the fiscal year 1985 term, bringing 

total of admissions before the Bar of the Court to 25,280. 

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

1985, the Court was notified that petitions for writ of certiorari wer

Supreme Court of the United States in 5 master docket cases in which the 

action. 
the Pentagon Chapter of the Federal Bar Association, Was

meetings of the Army Trial Defense Service, Walter Reed M

Washington, D.C., the American Bar Association, Detroit, Mic

Army Reserve Conference, Washington, D.C.; the National 

Advocates Conference, Leesburg, Virginia; the Staff Jud

Conference, Scott Air Force Base, Illinois; the Chicago B

Conference, Chicago, Illinois; an orientation on how the Army 

in Boots", Fort Sheridan, Illinois; a Law Day program of the A

of Special Investigations, Bolling Air Force Base; a meeting 

Law Committee of the Bar Association of the District of Col

Force Reserve Judge Advocates Conference in Atlanta, Georgi

Treasure Island, California; the 28th Military Judges Course, 

Virginia; a Memorial Service for Senator Sam J. Ervin, Jr., 

Presbyterian Church, Washington, D.C.; a meeting of the Ge

Committee, Federal Bar Association, Washington, D.C.; the 4

Judicial Conference, Hot Springs, Virginia; a meeting of the M

Committee, General Practice Section, American Bar Associatio

D.C.; the Judge Advocates Association Annual Meeting, Wash

Panel on Educating Judges at the American Bar Association's A

London, England; the annual meeting of the National 

Commissioners on Uniform State Laws, Minneapolis, Minne

Developments Course, U.S. Army Judge Advocate Gen

Charlottesville, Virginia; a meeting of the Federal Bar Associa

Michigan; and the Trial and Defense Counsel meeting at Lo

Base, Denver, Colorado 

Additionally, Chief Judge Everett served as a Judge of the A

Moot Court Competition at the University of Tennessee 

Knoxville, Tennessee, and the final round of the Sutherland C

Competition at the Catholic University of America Law Schoo

D.C. 

Judge Walter T. Cox, III, visited the Naval Legal Service 

Activity, Naval Base, Charleston, South Carolina; attended a 

with Admiral James D. Watkins, Chief of Naval Op~rations

conference of Coast Guard Judge Advocates; hosted a dinner 

Advocates General of the Armed Services; delivered an address a

U.S. Army Judge Advocate General's Conference at the Ju

10 
Additionally, Judge Cox addressed the members of Detach

Cadet Wing, Clemson University, South Carolina; studen

Advocacy Course, U.S. Army Judge Advocate Gen

Charlottesville, Virginia; Army Reservists attending the Re

Program, Fitzsimmons Army Medical Center, Denver, Colora

the Court-Martial Defense Team, llOth Judge Advocate Genera

Fort Carson, Colorado; the 11th Interservice Military Ju

Maxwell Air Force Base, Alabama; and the 1985 Marine Staff J

Conference, Arlington, Virginia. He also participated in Law D

at Naval Bases in Norfolk, Virginia, and Charleston, Sout

addressed the Air Force 5th Circuit Judges and Prosecutors Con

Air Force Base, and the U.S Navy Judge Advocate Gener

Washington, D.C. 

HOMER FERGUSON CONFERENCE 

The Tenth Annual Homer Ferguson Conference was held 

Washington University on May 13-14, 1985, under the joint 

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

previous years, was certified for credit to meet the continuing 

requirements of various State Bars, and was designed to give b

civilian practitioners an opportunity to develop and maintain th

skills necessary to practice before trial and appellate courts. 

for this year's conference included: 

The Honorable Strom Thurmond, Chainnan, United States Senate Ju

Committee. 

The Honorable Tim Murphy, U.S. Department of Justice. 

Professor Paul F. Rothstein, Georgetown University Law Center. 

Professor Henry B. Rothblatt, Trial and Appellate Lawyer. 

Professor Kenneth F. Ripple, Notre Dame Law School. 

The Honorable Francis J. Larkin, Associate Justice, Massachusetts T

Professor Stephen A. Saltzburg, University of Virginia Law School. 
Dr. Elizabeth L Finch, Child Psychiatrist, Family Counseling Center, 

Institute of Washington, D.C. 

Commander Jerry D. Spencer, USN, Chairman, Department of Foren

Armed Forces Institute of Pathology. 


Major James B. Thwing, JAGC, U.S. Army. 


The Honorable Michael J. Valentine, Chief Judge, Juvenile and Dom

Fairfax District Court, Virginia. 

General Paul X. Kelley, Commandant of the Marine Corps. 

Lieutenant Colonel Owen D. Basham, JAGC, U.S.Army. 

Colonel Harold L Miller, JAGC, U.S. Army. 

Colonel William G. Eckhardt, JAGC, U.S. Army. 

Brigadier General William K. Suter, Chief Judge, U.S. Army Court o

Review. 


The Honorable Robinson 0. Everett, Chief Judge, U.S. Court of Mili

The Honorable Walter T. Cox, III, Associate Judge, U.S. Court of M

The invocation for this year's conference was offered by 

Patrick J. Hessian, Chief of Chaplains, U.S. Army. 

As in previous years this year's conference was attended 

uniformed and civilian lawyers as well as Judges of the Cou

Review, legal scholars, and commentators in the field of milit

educational purposes, the conference was videotaped and such ta

available to anyone interested in examining the latest developm

of military justice. 

12 
accused and, therefore, the military judge's ruling was consisten

Amendment, U.S. Constitution, and with Article 46, Uni

Military Justice, 10 U.S.C. §846. 

The question of whether photographs of a lineup in wh

participated could be admitted into evidence to bolster a pretrial 

of such an accused was addressed by the Court in United States 

MJ. 463 (C.MA. 1984). The Court observed that photograp

the factfinder in determining whether such a lineup was s

therefore such photographs were admissible even under circumsta

defense did not raise an issue of suggestiveness. Thus, the Co

trial judge's ruling under Mil. R. Evid. 321 in accepting ph

lineup over objections by the defense counsel. 

The parameters of Mil. R. Evid. 305(e), which requires an 

notify counsel of an intended interview of his or her clie

circumstances, were addressed by the Court in United States 

MJ. 184 (C.MA. 1985). The Court therein specifically reje

argument that the investigator was required to notify cou

interview concerned an offense that was unrelated to another offe

rise to the attorney-client relationship. The Court also reje

suggestion that an investigator should be required to ask an a

presently represented by counsel, observing that the rule contem

responsibility for informing an investigator that the susp

represented by counsel should be placed on the suspect 

In United States v Everage, 19 M.J. 189 (C.M.A. 1985), 

called upon to address the question of when the defense may 

evidence concerning the credibility of an accused. The Court no

Evid. 608(a) (2) precluded the admissibility of evidence of tru

except when the character of the witness for truthfulness "has b

opinion or reputation evidence or otherwise." The specific iss

Everage was whether cross-examination of the accused would co

attack on her credibility as to pennit favorable defense evidence 

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

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

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

precedential value and should no be cited in briefs filed with the Court. 
such evidence where the accused was charged with a violation 

regulation because such evidence should have been admitted u

Evid. 404. Subsequently, in United States v Weeks, 20 MJ

1985), the Court adopted a four-pronged analysis to test whether a

prejudiced by an erroneous exclusion of evidence of good militar

requiring the military judge to determine (1) the strength of the 

case; (2) the plausibility or implausibility of the defense theory o

the materiality of the proffered testimony; and (4) the quality of 

defense evidence in resolving the issue of prejudice. This test was 

applied in United States v Vanderlinder. 20 MJ. 41 (C.M.A. 

States v Traveler, 20 MJ. 35 (C.MA. 1985); United State

Ml. 33 (C.M.A. 1985); United States v Wilson 20 MJ. 

1985); and United States v Klein 20 MJ. 26 (C.M.A. 1985). 

CHALLENGES AND MISTRIALS 

Relying on paragraph 62f(13), Manual for Courts-Martial, U

1969 (Revised edition), which required sustaining challenges "in 

having the trial and subsequent proceedings free from substanti

legality, fairness, and impartiality," the Court held in United Sta

19 MJ. 159 (C.M.A. 1985), that the military judge erred 

challenges against two court members. The Court observed th

captain who had signed the charge sheet and whose office was da

accused had previously spoken with the two challenged court 

make sure that the appropriate disciplinary action was taken

disclaimer of predisposition by each of the court members was p

nature and unaccompanied by any explanation from the membe

Lhey should be believed. 

In United States v Brice 19 MJ. 170 (C.MA. 1985), the C

the military judge erred by rejecting a defense motion for a mist

charge case where the court members attended a lecture by a Co

the Marine Corps during a continuance in the court-martial and 

concerned drug use. As the accused was charged with various drug 

Court held that a mistrial should have been granted in view o

timing of the lecture in question, i.&., during the course of the tria

14 
, 

y , §, 

Military Justice Act of 1983, P.L. No. 98-209, 5(c)(l), 97 St

was addressed in United States v. Tucker, 20 MJ. 52 (C.M.A

case the military judge granted a defense motion to dismiss the 

basis that the accused had been denied a speedy trial. His rul

appealed to the United States Navy-Marine Corps Court of Mil

the Government under Article 62, UCMJ, which reversed 

Thereafter, the accused filed a petition for grant of review w

States Court of Military Appeals and the appellate government 

to dismiss the petition, asserting that the Court was withou

review the case under the provisions of Article 62. The 

argument was predicated on the basis that Article 62 did not spe

tf1e issue of whether the Court could entertain such cases. 

Government's argument, the Court observed that Article 67(b)

to review all cases reviewed by the Courts of Military Review

observed that the legislative history of Article 62 reflected 

contemplated further review of decisions of Courts of Military 

Court of Military Appeals because an earlier version of the 

Article 62, which specifically excluded review by the Co

Appeals, was omitted when Article 62 was finally amende

Furthermore, the Court observed that Article 62 was modeled 

§3731, which authorized certain appeals by the Government in 

District Court, and that this statute authorized petitions for 

Supreme Court of the United States on writ of certiorari. Fin

observed that the Manual for Courts-Martial, United States, 

Executive Order of the President of t.ie United States, also int

62 as authorizing review by the Court of Military Appeals b

908 (c) (3) of the Manual specifically authorized submission o

review by the Court of Military Appeals. 

In United States v. Brandt 20 MJ. 74 (C.M.A. 1985), the 

a court-martial was without jurisdiction to try an accused w

request for enlisted members was signed by counsel rather th

Court rejected a government argument that the Court's ea

United States v White, 21 U.S.C.M.A. 583, 45 C.M.R. 35

held that the requirement of Atticle 25 (c) (1), UCMJ, 10 U.S

that such a request should be signed by an accused was 
eye on his torso, proceeding to a flight deck of an aircraft carrie

an aircraft during flight operations was so disruptive of the area t

constituted a breach of the peace within the meaning of Article 

Code of Military Justice, 10 U.S.C. §916. The offense of 

justice was examined in United States v Jones. 20 MJ. 38 

wherein the Court held that the accused's act of flushing heroin 

toilet after he had been apprehended for the suspected possessio

an act constituting obstruction of justice. The Court specific

defense claim that such act could not constitute the charged off

judicial proceeding had not yet begun. Rather, the Court held 

defense argument may be valid as to the offense set forth in 18 

the military offense was separate and distinct and did not de

existence of a pending judicial proceeding. 

MILITARY PROCEDURE 

The issue of whether an accused could be retried on a seco

where the charge on the original charge sheet had been dismisse

judge because it was not timely within the statute of limitation

Article 43, Uniform Code Military Justice, 10 U.S.C. §843, wa

the Court in !,!nited States v. Jackson, 20 M.J. 83 (C.M.A. 1

the Court noted that a trial judge granted a defense motion to d

of unauthorized f.bsence because the charge sheet reflected that 

by the officer exercising summary court-martial jurisdiction 

years after the date of the offense. Thereafter, the accused was a

trial for the same period of unauthorized absence but on a differe

which reflected that such charge sheet was received by the of

summary court-martial jurisdiction before the expiration o

statute of limitations pericxl. The military judge rejected a def

dismiss the charge and the accused was ultimately convicted. 

defense argued that the refusal to dismiss the charge in the seco

constituted a violation of the double jeopardy clause and that 

was barred by the doctrine of res iudicata, However, the Co

defense arguments, noting that jeopardy had not attached d

proceeding because evidence had not been received and that the 

judicata did not apply because the original ruling of the tria

involve the litigation of the accused's guilt or innocence. In 

16 
g p

()

the context of the military society, the affidavits constituted 

command influence and were therefore admissible within o

exceptior.s recognized under that rule. 

The propriety of a military judge making statements to the 

addressed by the Court in United Sta.tes v. Garwood, 20 M

1985). Although concluding that the military judge's conduct 

improper, the Court held that the accused was not prejudiced. 

held in Garwood that the accused was not subjected to imperm

prosecution as he offered no evidence that such prosecution w

"bad faith" or constituted "invidious" prosecution. Addition

rejected a defense claim in Garwood that the court members c

subconsciously influenced by some of the news reports, noting 

martial process was dependent upon the honesty and integrity 

and that a mere allegation of potential subliminal perception w

raise an issue as to the members' qualifications and impartiality. 

The issue of whether a lay witness could testify as to the id

and hashish was answered by the Court in United Sta.tes v D

(C.M.A. 1985). Noting its prior decision that a user of a drug 

opinion on its identity, the Court held in J2ay that a lay w

testify where she had previously used the substances in questio

the Court observed in J2ay that the evidence was sufficie

conviction where the accused's own statements indicated that t

question were the alleged contraband 

The question of whether United States v Breese, 11 M

1982), established a rebuttable or a conclusive presumption t

interest exists where two co-accused are represented by the sa

addressed by the Court in United States v Devitt, 20 MJ. 240 

Therein, the military judge did not inquire into the matter a

accused, who were husband and wife, were represented by th

Observing that circumstances could exist which do not constit

that, if a conflict did exist, the accused involved could 

voluntarily choose to be represented by the same counsel, the 

the Government should be allowed to demonstrate such matters 

they existed. Accordingly, the Court held that est

rebuttable presumption and remanded the case to determine if a 
g pg

that the convening authority was obligated to limit any reduction 

adjudged sentence to pay grade E-3. Finally, in United States v 

MJ. 279 (C.MA. 1985), the Court addressed the question 

unanswered in United States v Schelin, 15 M.J. 218 (C.MA. 

whether items in a Navy ship's store constitute military p

examining the purposes for and the organizational structure of sh

Court held that property stocked by a ship's store was military p

the meaning of Article 108, UCMJ, 10 U.S.C. §908. 

ROBINSON 0. EVERETT 

Chief Judge 

WALTER T. COX, III 

Associate Judge 

18 
CUMULATIVE FILINGS 

Master Docket 

Mandatory appeals filed 

Certificates filed 

Reconsiderations granted 

Petition Docket 

Petitions for grant filed 

Cross-petitions for grant filed 

Petitions for new trial filed 

Miscellaneous Docket 

TOTAL 

CUMULATIVE TER.MINATIONS 

Master Docket 

Petition Docket 

Miscellaneous Docket 

TOTAL 

CUMULATIVE END PENDING 

Master Docket 

Petition Docket 

Miscellaneous Docket 

TOTAL 

OPINION SUMMARY 

CATEGORY SIQNEll 

Master Docket 58 

Petition Docket 2 

Miscellaneous Docket 1 

TOTAL 61 

PERClJEIAM 

15 

0 

0 

15 

:MEM/ORPER 

191 

'2:165 

36 

2992 

FILINGS (MASTER DOCKE1) 

Mandatory appeals filed 

Certificates filed 

Reconsideration granted 

Petitions granted (from Petition Docket) 3 

TOTAL 

0 

7 

2 

264 

273 

Jn 26 percent of these cases, the Court specified issues which were 

appellanL 
TOTAL 

FILlNGS (PETITION DOCKE1) 

Petitions for grant of review filed 


Petitions for new trial filed 


Cross-petitions for grant filed 


TOTAL 


TERMINATIONS (PETITION DOCKE1) 

Petitions for grant dismissed 

Petitions for grant denied 

Petitions for grant granted 

Petitions for grants remanded 

Petitions for grant withdrawn 

Other 

TOTAL 

PENDING (PETITION DOCKE1) 


Petition briefs pending 


Staff auomey action pending 


Coon action pending 


TOTAL 


FILlNGS (MISCELLANEOUS DOCKE1) 


Writs of error coram nobis sought 


Writs of habeas corpus sought 


Writs of mandamus/prohibition sought 


Other extraordinary relief sought 


Writ appeals sought 


TOTAL 


TERMINATIONS (MISCELLANEOUS DOCKE1) 

Petitions withdrawn 

Petitions remanded 

Petitions granted 

Petitions denied 

Petitions dismissed 

TOTAL 

245 

2696 


8 


2 


2706 

10 


2428 


264 

37 

21 

7 

2767 

270 

95 

198 

563 

3 

s 

16 

8 

6 

3s 

0 

1 

2 

33 

1 

37 

Signed 

Per ruriam 

Mem/Ord

TOTAL 

Signed 

Per ruria

Mem/ord

TOTAL 

20 
Master Docket 7 4 1 3 

Petition Docket 7 2 1 5 

TOTAL ""15" 7 2 9 

Miscellaneous Docket 1 1 0 1 

MOTIONS ACTIVITY 

.ll.!illlN m-m msroSIDON

CATEGORY PENDING .E!l.Jlli.T..S PFNPINQ Granted Rejected 

All motions 48 1138 31 1022 133 
22 

During fiscal year 1985, the court-martial rates show an Arm

in the number of courts-martial. The total number of persons t

of courts-martial in fiscal year 1985 is 11 % lower than for 19

decrease reflects primarily a decrease in special and summar

(i.e., a 7% decrease in special courts-martial empowered to 

conduct discharge, a 21 % decline in non-BCD special courts-m

decrease in summary courts-martial). There was a 1 % decrease 

general courts-martial, which has remained relatively constan

The overall conviction rate for fiscal year 1985 was 91.9%, wh

slight decline from the 93% conviction rate for the previous fisc

STATISTICAL SUMMARY: FISCAL YEAR 1985 

{See Appendix A) 

U.S. ARMY LEGAL SERVICES AGENCY 

The U.S. Army Legal Services Agency includes the U.S. 

the Government Appellate Division, the Defense Appellate D

Defense Service, the Trial Counsel Assistance Program, the C

Division, the Regulatory Law Office, Patents, Copyrights 

Division, and the Professional Recruiting Office. The latter fo

no function related to the U.S. Army Judiciary and its court

The Contract Appeals Division and the Regulatory Law Off

Army and the Department of Defense in certain contractua

disputes before commissions and boards. The Patents, 

Trademarks Division controls and coordinates the named subjec

activities of the Department of the Army. The Professional R

coordinates the recruitment of lawyers for the Army. 

Management Office function has been manned and funded in 

automation of the Agency. 
1,496 clients at general courts-martial, and 2,935 clients at s

martial. In addition, USATDS counsel advised 66,141 Article 

40,095 clients facing administrative action. 

USATDS continued to develop its deployment capability. 

deployed to the Sinai in support of the Multi-National Force

counsel actively participated in command training exercises. 

TRIAL COUNSEL ASSISTANCE PROGRAM 

During fiscal year 1985 the Trial Counsel Assistance Progra

Legal Services Agency, provided advice and training for trial 

program responded to almost 1400 requests for assistance by p

counsel with verbal advice and written authorities. The progr

training seminars at 13 locations in the United States and 

program's monthly publication, designed to keep trial coun

criminal law, has now been incorporated into a newly creat

Section" of The Army Lawyer. This change in format will 

efficiencies and increased circulation. 

SIGNIFICANT MILITARY JUSTICE ACTIONS 

Actions involving military justice handled by the Criminal 

Office of The Judge Advocate General, included: evaluating 

legislation, Executive Orders, pamphlets and regulations affectin

of the Army and the Department of Defense; monitoring the ad

military justice, including evaluation of on-going major proje

opinions for the Army Staff; reviewing various aspects of crim

action by the Army Secretariat and Staff; and responding to 

Congressional and other inquiries relating to military justice. 

CHANGE OF MILITARY JUSTICE REGULATION 

Army Regulation 27-10, Military Justice, was revised effec

1985. The revision made minor administrative and proced

Revisions are also programmed for December 1985 and June 19

regulation current with changing Army policies, changes to t

Courts-Martial, 1984, and evolving case law. 

24 
In accordance with the requirement established by Executi

July 13, 1984, the Committee forwarded the first annual revie

for Courts-Martial, 1984, to the General Counsel, Departmen

April 2, 1985. The review recommended that numerous amen

to the Manual. Most noteworthy were proposed amendments 

Rules of Evidence to adopt the "good faith" and "inevit

exceptions to the exclusionary rule. Other proposals were des

drafting deficiencies in the 1984 Manual and to revise ineff

first introduced into the military justice system in the 1984 Man

During the year the Committee drafted and forwarded to 

legislative proposals to amend the Uniform Code of Military 

proposal would incorporate many of the insanity pro

Comprehensive Crime Control Act of 1984 into the Code 

Another proposal would clarify the military's ability to di

component personnel in response to the holding in United S

18 M.J. 259 (C.M.A. 1984). The last proposal would have cre

offense of espionage as Article 106a. A similar bill was later 

of the DOD Authorization Act of 1986. 

MILITARY JUSTICE ACT OF 1983 ADVISORY COMM

As part of the Military Justice Act of 1983, Congress d

Department of Defense form a commission to study six issues: 

1. Whether the military judge should exercise the sentencin

non-capital courts-martial. 

2. Whether there should be power for suspension of sente

trial judges and Courts of Military Review. 

3. Whether trial and appellate military judges should be give

4. Whether special courts-martial should be allowed to im

year confinement at hard labor. 
The Commission submitted an extensive report to Congress 

1984. The Commission recommended that special courts-martial 

impose up to one year confinement; that the United States Cou

Appeals be organized under article III of the Consitution; and th

improvements be made in the retirement system for judges of the 

Court of Military Appeals. In addition, the Commission recomme

membership of the Court be increased to five judges. The 

recommended against adoption of the remaining proposals specifie

FOREIGN CRIMINAL JURISDICTION 

As executive agent for the Department of Defense, the Depa

Army, through International Affairs Division, Office of The Ju

General, maintains information concerning the exercise of for

jurisdiction over U.S. personnel. 

During the reporting period, December 1, 1983, through N

1984, a total of 123,508 U.S. personnel, military and civilian, 

with offenses subject to the primary or exclusive jurisdictio

tribunals. A total of 112,905 of these offenses were charged ag

personnel. Of this number, 90,976 of the charges against milit

were subject to exclusive foreign jurisdiction. Nonetheless, forei

released 604 of the exclusive foreign jurisdiction offenses to 

authorities for appropriate disposition. 

The remainder of the military offenses subject to foreig

totaling 21,929 offenses, were concurrent jurisdiction offen

alleged violations of both U.S. military law and foreign law, o

foreign country had the primary right to exercise jurisdiction. 

authorities obtained a waiver of primary foreign jurisdiction in 1

incidents, for a worldwide waiver rate of 88. l %. 

Foreign authorities reserved for their disposition a total of 92

allegedly committed by military personnel. A total of 91,741 of 

were relatively minor. 90,924, or 97.8%, involved traffic violation

A total of 10,603 civilian employees and dependents were 

offenses subject to foreign jurisdiction. As civilians are not sub

courts-martial in peacetime, the U.S. had no effective jurisdict

offenses. Nonetheless, foreign authorities released 404 of thes

26 
Marine, 1985), the court held the state DWI laws are not 

persons subject to the UCMJ. The court reasoned that the A

Act was not operative where there was federal statute pr

conduct that state law controls. In this case, Article 11

specific federal statute which precludes the operation of the A

Act. 

The case is being appealed. Navy litigation is coordina

services and the Department of Justices. A soldier at Fort 

similar argument in the Magistrate Court in Hawaii. 

jurisdictions can be expected. 

If the Maine cases are adopted throughout the federal cou

may be an increase in soldier DWI cases processed as nonjudi

courts-martial. 

EDUCATJON AND TRAINING 

During fiscal year 1985, The Judge Advocate General's 

Charlottesville, Virginia, provided legal education to lawy

service and other federal agencies. Forty-five resident cour

with 3,253 students in attendance. Courses were attended b

Navy, 105 Marine, 164 Air Force, 27 Coast Guard, 72 Arm

556 civilian, and 16 foreign students. Three Basic Classes, t

107th were conducted. A total of 210 Army JAGC officers g

Classes.·. 

The 33d Graduate Course, with an enrollment of 69 stu

May 17, 1985. In addition to 60 Army judge advocates, th

five Marine, one Navy, and three foreign officers. The 34

began on August 1, 1985. This class contains 57 Army

Navy, and three foreign officers. 

During fiscal year 1985, the School continued to prov

with legal orientations prior to their assumption of com

general officers attended General Officer Legal Orientation 

battalion and brigade command designees attended one of f

Officer Legal Orientation Courses. Additionally; instructor
pg gp

Richard "Racehorse" Haynes enchanced the advocacy training. Ad

Division presented instruction in three nonresident courses--a 

course in Germany, one in the Pacific to bring the latest legal de

Army, Navy, Air Force and Marine Corps lawyers serving t

Advanced Noncommissioned Office Course at Fort Benjamin Har

The International Law Division sponsored four one week c

Law of War, a one week Advanced Law of War Seminar which co

operational law, a one week Judge Advocate Operations Overseas 

dealt with status of forces agreements, and two one week course

Aspects of Terrorism. Additionally, the Division provided inst

for a one week course in the Federal Republic of Germany on th

sponsored by U.S. Army Europe. All courses were designed for an

both judge advocates and operational staff officers. In keep

"operationalization of international law", the major focus of the c

practical, hands-on training, rather than on lecture. Similar in

presented to both active and reserve forces to ensure that they we

provide timely, accurate legal advice on military operations. 

Instruction provided by the Contract Law Division, including 

courses on the acquisition of major end items and weapon system

to meet the training needs of all attorneys involved in the fede

process. Courses are available for the novice and the experience

In fiscal year 1985 the Contract Law Division sponsored ten co

education courses, including the two-week Contract Attorneys 

was offered five times, with eighty-four students; in the 

continuing legal education courses were two Fiscal Law 

Commercial Activities Course, a Claims, Litigation, and Rem

and the Annual Government Contract Course, a Law Symposiu

180 attorneys from throughout the Department of Defense. 

personnel of the Contract Law Division presented contract law 

Reserve Component Technical Training sites and a continuing l

course in Europe. Fiscal law courses were presented at si

Charlottesville for a number of Army commands and activities

Corps of Engineers and U.S. Army Finance and Accou

Personnel of the Division also participated jointly with the 

Agency and the Criminal Investigation Command in week lon

designed to provide students with ways to improve co

28 
Indiana. 

The Legal Assistance Branch of the Administrative and Civ

produced two new publications. The first is a two-volume, 1,50

entitled The Legal Assistance Officer's Deskbook and F

publication contains a discussion of the law followed by sa

forms in the substantive areas of law most frequently pra

assistance officers. Secondly, the Branch produced The All 

State Notarial Laws In addition, the Branch with the assistan

component attorneys throughout the United States, updated an

All States Will Guide The Legal Assistance Officer's Fede

Sunnlement and the Army Legal Assistance Information 

Branch also produced a Model Tax Assistance Program for ado

staff judge advocates throughout the Army. The Branch m

liaison with the Chiefs of Legal Assistance of the other se

cooperative effort with the Air Force, produced a two-volume, h

the Air Force's All States Law Summaries. Two additional 

covering consumer law matters were scripted and are awaiting 

The Judge Advocate Guard and Reserve Affairs Departmen

resident courses for Reserve Component Judge Advocates in 

Approximately 140 Army Reserve and National Guard judge ad

Triennial Training in International Law, Claims, and Contract 

and 28 June 1985. Phase VI of the Judge Advocate Officer A

(Contract and International Law) was attended by 139 students 

period. The attendance by Army National Guards at Triennial 

the Guard's continued strong participation in School program

U.S. Army Reserve School in Farrell, Pennsylvania, provide

support for both courses. The Department also sponsor

Component Technical (On-Site) Training Program. Between O

May 1985, the School provided continuing legal education 

persons in 23 regional population centers throughout the 

Attendees represented all services and all components. On-site 

up 8% in 1984-85, highlighted by strong showings by Active 

National Guard judge advocates. The Guard-hosted New 

instruction was a great success, and more are planned for the fu

of Active and Reserve Component judge advocate officers 

Program continues to be invaluable. 
spoke of the legal relationship between the President and Congre

The Second Gilbert A. Cuneo Lecture in Contract Law, "The 

Contracting with the Federal Government," was presented 

Trimble, Vice-President for Contracting, Martin Marietta 

January 7, 1985. The School hosted the 1985 Worldwide Ju

General's Conference during October 2-5, 1985. Over 150 

advocates from posts throughout the world conferred on areas 

discussed recent developments in all areas of military law. 

New editions of DA Pam 27-7, Military Justice Handbo

Summary Court-Martial Procedure; DA Pam 27-7, Military Jus

Military Administrative Law Handbook: DA Pam 27-162, Cla

Your Conduct in Combat Under the Law of War: TC 27-3, M

Officer Training: TC 27-10-3, Instructor's Guide -- The Law of 

27-1-3, Army Rules for Imposing Nonjudicial Punishment, 

School is responsible, were published during fiscal year 1985. T

TC 27-2, Military Justice -- Enlisted Personnel Training. was 

and will soon be issued. Revision of several other publications i

instructional deskbooks were made available to attorneys in th

the Defense Technical Information Center. Articles of inter

attorneys continue to be distributed to the field through the DA 

series, Military Law Review, and the DA Pam 27-50-seri

Lawyer. A revised AR 27-5, Army Law Librruy Service, will 

1986. 

The Combat Developments Office has redesigned all Staff J

(SJA) offices from Corps down to the Heavy Separate Brigades

and Trial Judiciary assets have been placed in Tables of Or

Equipment (TOE) documents as separate from the SJA office

entitled "Legal Services Command" is being developed to "c

SJA, defense and judiciary personnel presently in Tables of D

Allowance (TDA) documents that are actually dedicated to the TO

TOE units being designed are 32d AADCOM, 2d Infanrry Divisi

Theater Defense Division. For the first time, Combat Dev

engage in doctrine and personnel utilization assessments durin

and Team Spirit. 

30 
fiscal year 1985 end strength compares with an end strength o

year 1984, 1821 in fiscal year 1983 and 1815 in fiscal year 1

distribution of the Corps at the end of the fiscal year was 6 g

118 colonels, 214 lieutenant colonels, 387 majors, 1022 captai

lieutenants. There were 45 officers (41 captains and 4 fi

participating in the Funded Legal Education Program. There 

warrant officers. 

To ensure that the best qualified candidates for initial com

status, and The Judge Advocate General's Officer Graduate Cour

formal boards were convened under The Judge Advocate G

instructions several times during the year. 

· In November 1984 a selection board was convened to select 

commissioned officers to commence law school under the 

Education Program. 

Seventy-eight judge advocate officers completed the fo

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 •• , •• , •• , , ••• , , ••• , , , ••

During fiscal year 1985 five officers completed fully funded 

degrees in specialized fields of law. As a result of the Defense O

Management Act (DOPMA), newly appointed judge advocates 

fiscal year were commissioned as first lieutenants. The J

General's Corps is a separate competitive category, and selects a

officers based on Judge Advocate General's Corps grade vacanc

HUGHR. OV

Major General

The Judge Adv
PART 2. DISCHARGES APPROVED I From recor~s shown 10 Pa rt 3 l 

GENl"AL COU..Tl.UAlllTIAL (CA LIVEU 

NUMIE" OP DISHONOfllABLE DtSCHAAGES 

NUMlt" OF IAD CONDUCT OtSCHA"'GES 

PEC1AL COUf'TS·MAfllTIAL (SA LEVELl 

NVM8Ut OF I.AD CONDUCT DISCHAfllGES 

PART 3 ·RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

'Diii lllEVIEW UNDEflll AfllTICLE M. GENERAL c6u111TS-MAlllTIAL 

PART4-WORKLOADOFTHE U.S. ARMY COURTOFMILITARYREVIE

TOTAL ON HAND BEGINNING OF PEflllOD 

. GENE,.AL COUlllTS-MA.fllTIAL 

•co Sl"ECIAL COUlllTS-MAfllTIAL 

QENElllAL COUfllTS-MAlllTIAL 

aco Sl'ECIAL COUfllTS-MAlllTIAL 

TOTAL CASES lllEVllWED 

OENEPIAL COUPITl-MA..rTIAL 

ICD Sf'ECIAL COUllrrS-MA,.TIAL 

TOTAL f'ENOING AT CLOSE 011 l't:PllOD 

GENElllAL COU,.TS-MA,.TIAL NA 

BCD Sf'ECIAL COU,.TS-MA,.TIAL U4 

PIA.TE OF INCPIEASE t+)IOECllllASE (-) OVElll HUMBEA OF CASES 

llllEVIEW!'D ou•UNQ LAST lllEl'Otl!TINQ ,E,.100 +207. 

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE THE U.S. ARMY COUR

REVIEW 

1

::::.'N:m I 2 ~:iE [:::::I:J:{:f:::::::::::::::::::!:::::::,:::::]:::m:::::::]:::::m::::::::t:::::1::::

PART 6 ·U.S. COURT OF Ml LITARY APPEALS ACTIONS 

PElllCENT.A.GE OF COMlll flllEVIEWED CASES FOflllWAAOED TO USCMA 

PEACENTAGE OP tNClllEASI (+)/OECllllEASE {-) OVEPll PlllEVIOUS "'E'OPITING 'EflUOO 

PEPICENTAGE OP TOTAL ,ITITIONS GPIANTED 

Pl,.CENTAGI Of "ITITIONS GAANTED OP TOTAL CASES IUVIEWEO BY COMlll 

"ATE Of INC,.EAll C+~/DICllll:EASE C-) OVE" THI NUMIElllt Of CASES lllEVIEWED OUPlllNO 

LAST fllE,OfltTING '11111100 

l'AGEIOF2 

NOTE A. noes not include 7 cases in which review was waived. 

JI. Does not include 1 case in which review was waived. 

c. Includes 19 Miscellaneous Docket cases of which 6 were Go

Article 62. 

D. Does not include 5 cases in which review was withdrawn. 

E. The Court ordered appointment of counsel in 12 additional 

32 
GENERAL COUATS·MAATIAL 

S'ECIAL COUfllTS-MAfllTIAL 

TAIALS BY MILITAlllY JUDGE WITH MIMBElllS 

OENEAAL COUfllTS-MAATIAL 

SP'ICIAL COUfllTS·MARTIAL 

979 

1205 

441 

4b2 

:=

:/

=::

::::

PART 9 ·COMPLAINTS UNDER ARTICLE 138 

NUMllEA 0' COMPLAINTS I 40 

PART 10-STRENGTH 


A\11 ....GI ACTl\11 DlJTY ST"ENGTH I 7 86 I 719 k: 


PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

•NUMBEA 0111 CASES WHl"I NONJUDICIAL "UNISHMENT IM,.OSED 121,154 

AA.TE l'fA 1,000 154 

lllATE OF INCREASE C+)/OECAEASE (-)OVER P'lltEVIOUS PUUOO +9 

l'AGE10F1 

Note.F. ~ncludes 2 applications returned for curative action hy f

2 applications filerl out cf time with good cause not sh
34 

General continued to visit commands within the United States, E

Far East in the supervision of the administration of military justic

COURT-MARTIAL WORKLOAD 

There has been a small decrease in a total number of courts

fiscal year 1985. (See Appendix A, attached to this report.) Du

1985, the Navy-Marine Corps Court of Military Review recei

4,518 new courts-martial cases, consisting of 774 general cou

3,744 special courts-martial, as compared with 4,676 courts-ma

of 749 general courts-martial, and 3,927 special courts-martia

year 1984. Of the 4,518 new cases received by the Navy-Mari

of ¥ilitary Review in fiscal year 1985, 4,109 accused requ

counsel (91%). 

ARTICLE 69(a), UCMJ, EXAMINATIONS 

Seventy-six general courts-martial cases which were not stat

for automatic review by the Navy-Marine Corps Court of M

were examined in the Office of the Judge Advocate General unde

Uniform Code of Military Justice, in fiscal year 1985. 

ARTICLE 69(b), UCMJ, APPllCATIONS 

The number of applications filed pursuant to Article 69(b), U

Military Justice, under which the Judge Advocate General may v

the findings or sentence of courts-martial which have become fi

of Article 76, but have not been reviewed by the Navy-Marine 

Military Review, increased slightly during fiscal year 1985. Ap

received in 76 cases; 32 applications were pending from prior 

108 cases, 49 were reviewed during the fiscal year. Of tho

reviewed, 46 were denied on the merits, while relief was granted

part, in three cases. Three cases received were beyond the statu

and returned to the applicant for resubmission upon a showing 

for untimely initial submission. Six cases were returned for co

the Manual of the Judge Advocate General. Fifty cases were pe

the close of fiscal year 1985. 
ppg 

NAVY-MARINE CORPS TRIAL JUDICIARY 

The Navy-Marine Corps Trial Judiciary provided military jud

general courts-martial (GCM) during fiscal year 1985, an inc

GCMs from the prior fiscal year level of 771. In fisca

approximately 80% (800 of 1,016) of these GCMs were trie

judge alone. This is an increase over previous years (70% in fi

66% in fiscal year 1983). 

There were 6,642 special courts-martial (SPCM) tried duri

1985, a decline of 796 cases from the 7,438 SPCMs conducte

year 1984. In fiscal year 1985, apporximately 90% (6,030 of 

SPCMs were tried before military judge alone. In fiscal year 

the SPCMs (6.663 of 7,438 cases) were tried before military ju

in fiscal year 1983, 90% of the SPCMs (8,265 of 9, 197) we

military judge alone. 

Military judges attending continuing legal education sem

meetings/conferences: 

East Coast Military Judges Meeting of the Navy-Marine Corps T

Navy Air Station, Norfolk, Virginia (3-4 December 1984) 32 a

military judges and 9 reserve military judges 


West Coast Military Judges Meeting of the Navy-Marine Corps T

Marine Corps Recruit Depot, San Diego, California (10-11 De

24 active-duty military judges and 8 reserve military judges 

Eleventh Interservice Military Judges' Seminar: 


Maxwell Air Force Base, Montgomery, Alabama (10-11 Marc

active-duty military judges (2 active-duty military judges also 

guest speakers) 


Criminal Evidence Course: 


National Judicial College, Reno, Nevada (14-20 April 1985) 1 

Marine Corps judge 


36 
U.S. Army Trial Judiciary (European Division) Conference: 

Garmish, Germany (8-14 September 1985) 9 active-duty Nav

reserve Navy judge 

1985 Navy JAG Corps Conference: 


Springfield Hilton Hotel, Springfield, Virginia (22-27 Septem

9 active-duty Navy judges and 1 reserve Navy judge 


Medical-Scientific Evidence Course 

National Judicial College, Reno, Nevada (29 September - 4 O

1 active-duty Marine Corps judge 

Captain Byrne, Chief Judge, Navy-Marine Corps Trial Judicia

administrative briefings for students at the Military Judges' Cours

U.S. Army JAG School, Charlottesville, Virginia (12-14 June 

Naval Justice School, Newport, Rhode Island (13-16 August 1

conducted a working visit to the Office of the Circuit Military 

water Judicial Circuit, Norfolk, Virginia (28-29 June 1985) and p

the retirement ceremony for Captain M. Freed, outgoing Ci

Judge, Tidewater Judicial Circuit, and at the assumption of duti

Ziemniak, who relieved Captain Freed. Captain Byrne also par

Reserve weekend training drill for Reserve Navy judges at the Na

College, Reno, Nevada (13-24 February 1985). The Chief Judge 

the USMC Staff Judge Advocate's conference held 14-18 Apri

Quality Inn, Arlington, Virginia 

On behalf of the Chief Judge, Lieutenant Colonel Atkins, 

Judge, Navy-Marine Corps Trial Judiciary, participated in a Res

training drill at the Naval Justice School, Newport, Rhode Isla

and 11September1985. 

Also on behalf of the Chief Judge, Colonel Blum, Circuit M

Piedmont Judicial Circuit, Camp Lejeune, North Carolina, paid a 

to and participated in the instruction of students at the Military J

at the Naval Justice School, Newport, Rhode Island, between 13 

1985. 

As has been the case in previous fiscal years, the judge's bille

been gapped due to a projected reduction in caseload, and upon 
(NA VLEGSVCCOM) consisted of 21 naval legal service offices 

legal service office detachments, located in areas of naval 

throughout the world; the Naval Justice School, located in New

Island; and the Office of Legal Counsel at the Naval Academy

Maryland. The pilot Trial Defense Activity and its two detac

disestablished on 1 July 1985. The total manpower authoriz

NA VLEGSVCCOM includes 427 officers, 231 enlisted legalm

civilian employees. Navy judge advocates in the NA VLE

comprise approximately 40% of the Navy's total judge advocate s

The NA VLEGSVCCOM, under the command of the Jud

General in his capacity as Commander, NA VLEGSVCCOM, 

provide a broad range of legal service to afloat and ashore comm

individual servicemembers. These services include court-mar

defense counsel, administrative discharge board counsel for 

recording and preparation of records of trial, advice to command

justice and other legal aspects of the functioning of comm

processing and adjudication, counsel for the party at physical evalu

and legal assistance to servicemembers and their dependents. 

Phase I of the Judge Advocate General Management Inform

(JAGMIS), the field office case tracking system, was implemente

Legal Service Command and many staff judge advocate offices 

May 1985. Efforts are underway to enhance the software for P

increase training levels at all sites. Phase II of JAGMIS 

headquarters information systems for military justice data c

appellate case tracking. Phase II is in the concept development/d

stage of development, and approval of equipment acquisition plan

during December 1985. With allowance for software develo

anticipated that Phase II will be implemented in June or July 1986

NAVAL JUSTICE SCHOOL 

During fiscal year 1985, the Naval Justice School continued to 

the tempo and range of its operations. In addition to providing 

5,925 students worldwide, an increase of 8% over last year, the 

three new courses to the curriculum and broadened its involve

Corps publications. These additional courses were developed to e

38 
labor law likely to be encountered by a command legal advisor. I

hours of classroom instruction and 7 hours of practical exercises 

This past year, 33 Navy and 5 Marine Corps attorneys completed 

Senior Legalman Management Course. This two-week c

annually, provides senior legalmen with the specialized train

matters, civilian and military personnel management, and othe

skills required of mid-level supervisors at naval legal service off

are 61 hours of classroom instruction and 13 hours of workshops 

Twenty E-7 through E-9 legalmen attended the first offering of th

Lawyer Course. The Naval Justice School completed five 

nine-week lawyer course during fiscal year 1985. This course, w

basic training in military justice and military administrative an

incoming Navy and Marine Corps attorneys, consists of 

classroom instruction and 53 hours of practical exercises, inclu

courts and more than a dozen seminars designed to enhance 

skills. The course was completed by 149 Navy and 72 Marine C

fiscal year 1985. 

Legal Officer Course. During fiscal year 1985, the scho

sessions of this five-week course. The legal officer syllabus is d

nonlawyer, such as a junior officer about to assume duties as le

ship, aircraft squadron, small station, or other military unit w

lawyer attached. Included in the course are 126 hours of classro

and 79 hours of practical exercises and seminars. Last y

consisted of 233 Navy officers, 39 Marine Corps officers, tw

officers, and three members of the Navy's legalman rating. Thes

graduates of the course are the first increment of a program 

seasoned legalmen to independent duty as legal advisors in lieu o

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

Naval Operations, prepares commanding officers, executive 

officers-in-charge to handle command legal responsibilities. Six 

course were held at Newport, Rhode Island, with 172 students 

additional 25 offerings of the course were held at the follow

locations: Pensacola, Jacksonville and Mayport, Florida; Cha

Carolina (2); Norfolk, Virginia (2); Puget Sound, Washington; 

California (2); San Diego, California (2); Camp Pendleton, Ca

Spain; Pearl Harbor, Hawaii (2); Subic Bay, Philippines; Yo
Corps and 7 Air Force judge advocates completed this course. 

Legalman Course. This nine-week course, offered twice in fisc

provides instruction in military law and electronic court report

enlisted personnel selected for conversion to the legalman rating. 

162 hours of lecture, 118 hours of practice transcription, and 

seminars and other practical exercises. In fiscal year 1985, 47 N

Army students completed this course. As in past years, the Army 

use the Naval Justice School's legalman course to train its court rep

Legal Clerk Course. This two-week course, designed to train 

the Navy's yeoman rating to process routine legal matters at sma

commands, was originally scheduled for three sessions in fiscal ye

to the large demand for quotas, however, the school provided an a

offerings of this course. Included in the legal clerk curriculum ar

lecture and 25 hours of practical exercises. In fiscal year 1985, 

completed the course. 

Reserve Courses. In addition to training active-duty personn

Justice School also presents a number of courses each year to tr

The two-week Reserve Lawyer Course prepares inactive-duty la

Naval and Marine Corps Reserve to perform the duties of an acti

advocate. Similarly, the one-week Reserve Legalman Course, of

phases, prepares enlisted personnel in the inactive-duty Reserv

legalmen. During fiscal year 1985, 60 students completed a cour

instruction at the school. 

Local Briefings. In addition to the formal courses listed abo

Justice School presented more than 500 hours of instruction o

seizure, confessions and admissions, nonjudicial punishment, i

administrative separations, and the law of armed conflict to 3,1

the Surface Warfare Officers School, Chaplains School, Officer 

School, Officer Candidate School, Senior Enlisted Academy

College, Naval Science Institute, and Naval Academy Preparat

Newport, Rhode Island. 

Publications. Besides expanding its curriculum of formal cour

Justice School also became more involved in JAG Corps public

end of fiscal year 1985, the school assumed responsibility for p

JAG Corps' major scholarly periodical, the Naval Law Review. I

school published four issues of its Update Series. a co

40 
During fiscal year 1985, the increased emphasis on Reserve 

Training Units (MTUs) continued. In addition to providing thous

of legal assistance services to active-duty and Reserve Marines an

the twelve Law MTUs have begun assuming missions directl

active-duty commands and HQMC staff agencies. Also, some 

lawyers (including six military judges) train for mobilization b

drills and annual active duty with the commands to which th

assigned if mobilized. 

On 1 October 1984, the chairmanship of the Joint-Service C

Military Justice (JSC) was relinquished at end of term by the in

Force representative. The Marine Corps was next in turn to 

position and accepted the chair for the first time in JSC 

chairmanship term is two years. 

The new procedures for furnishing Marine Corps defense cou

have been in place now for over a year. They continue to be wel

commanders and judge advocates alike. The Chief Defense Co

Marine Corps and the three Regional Counsel exercise overall su

defense counsel performance and prepare defense counsel fitness r

Also during fiscal year 1985, nine Marine judge advocates atten

service schools, including the Naval War College, the Marine Cor

and Staff College, Amphibious Warfare School, and the U.S

School at Charlottesville, Virginia. Three Marines received their M

degrees from civilian law schools in the Special Education P

hundred and sixty-four Marines received continuing legal educat

and military schools through courses funded by Headquarters, 

Corps; a substantial number of judge advocates received con

education funded by their parent commands. Twenty-seven of th

Corps judge advocates are serving in command or staff 

assignments. 

The Marine Corps hosted the Spring Meeting of the A

Association Standing Committee on Military Law, held at the M

Recruit Depot, Parris Island, South Carolina, on 17-18 May 1985

to a tour of Marine Corps facilities at Parris Island, the progra

panel discussion on the changing role of the military lawyer. 
42 
PART 2. DISCHARGES APPROVED 

GENERAL COURTS-MARTIAL (CA LEVEL) 

NUMBER OF DISHONORABLE DISCHARGES 

NUMBER OF BAO CONDUCT DISCHARGES 

SPECIAL COURTS-MARTIAL {SA LEVELi 

NUMBER OF BAD CONDUCT DISCHARGES 

PART 3- RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR REVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL 

FOR REVIEW UNDER ARTICLE 68 ·BCD SPECIAL COURTS-MARTIAL 

FOR EXAMINATION UNDER ARTICLE 69- GENERAL COURTS-MARTIAL 

PART 4. WORKLOAD OF THE NAVY/MARINE 

TOTAL ON HANO BEGINNING OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

REFERRED FOR REVIEW 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS·MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

97 

306 

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


REVIEWED DURING LAST REPORTING PERIOD 937 (-181) 


PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE COUR

REVIEW 

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

PERCENT.A.OE OF COMA REVIEWED CASES FORWARDED TO USCMA 

PERCENTAGE OF INCREASE (+I/DECREASE 1-l OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF TOTAL PETITIONS GRANTED 

PERCENTAGE OF INCREASE (+I/DECREASE 1-1 OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMR 

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

LAST REPORTING PERIOD 

P.4.GE 1 OF J 
SPECIAL COURTS-MARTIAL 

TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS·MARTIAL 

SPECIAL COURTS·MARTIAL 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 


NUMBER OF COMPLAINTS I 123 [.:::::<:.=·· ..·...:::::=::=·:·.:..::=·:·.·=· 


PART 10 ·STRENGTH 


AVERAGE ACTIVE DUTY STRENGTH 759, 931 !?}:;::::<·.· .·.... 


PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUOtC1AL PUNISHMENT IMPOSED 82, 888 

109 .08 

RATE OF INCREASE (+)/DECREASE(-) OVER PREVIOUS PERIOD -12h 

PAGE20F2 

RATE PER 1.000 

44 
US Air Force Judiciary Activities 


During fiscal year (FY) 1985, the Judiciary Directorate of th

Judge Advocate General processed over 3406 actions involving 

The Directorate has the overall responsibility for supervising the 

of military justice throughout the United States Air Force, fr

proceedings to appellate review of courts-martial. Additionally, 

has the staff responsibility of the Office of The Judge Advocate 

military justice matters which arise in connection with pro

projects, studies and inquiries generated by the Air Staff, Headq

the Secretaries, Departments of Defense, Army, Navy, and Air F

of Congress and other federal, state and civil agencies. S

Directorate's activities are discussed below: 

a. The Judiciary Directorate serves as the action agency fo

military justice issues in applications submitted to the Air F

Correction of Military Records. Formal opinions were provided 

of the Air Force concerning 219 applications. 

b. The Directorate received 856 inquiries in specific cases r

formal written replies or telephonic replies to senior exec

including the President and members of Congress. 

c. The Directorate provided representatives to all interse

involving military justice. This included the Joint Service C

support for the Code Committee. 

Automated Military Justice Analysis and Management 

The Automated Military Justice Analysis and Manag

(AMJAMS), which became operational in July 1974, is a fully 

system which allows The Judge Advocate General's Departmen

collate data concerning courts-martial and nonjudicial pun

information is used to provide current statistical reports as a m

for use by this headquarters, major commands, general 

jurisdictions and individual bases. It enables the Departm

specific inquiries on cases in progress and to prepare studies on 
Division of the Executive Office became the new directorate, a

process a new division for program development (AF/JASX). P

initiated to upgrade the FLITE system into an interactive system 

on mainframe computers at the 2nd Information System Gr

Antonio. It was determined that the 2nd ISG would also ho

information management systems to AMJAMS and CAMP, to b

the Air Force Justice Information Management System (AFJIMS) 

Force Claims Information Management System (AFCIMS). 

Plans were generated to begin an extensive, structured requireme

of the justice and claims systems, as well as other office managem

in order to draft adequate blueprints for the design of the new IMSs

is part of an ongoing (FY 1985-87) Air Force wide study of al

support areas. The JA study was to begin October 1st 

Over 900 microcomputers were fielded by JAS to some 300 Ai

offices worldwide thorugh FY 1985 purchases. Additionally, an i

processing program was fielded to be used until selection of a com

office automation software suite. Extensive prototyping and 

available spreadsheet and database management systems were acco

Initial operational testing was accomplished on the Defense 

Authorities Retrieval and Analysis System (DEARAS) and 

investigation into laser disk technology for application to that 

other possible distJibuted database systems was accomplished. 

Trial Judiciary 

The Air Force Trial Judiciary had an average of 31 military act

five reserve military trial judges, including the Chief Trial Ju

assistant, assigned to 12 locations worldwide. 

The Trial Judiciary had begun to automate the management sy

budgeting function with the acquisition of microcomputers for 

seven Circuit Offices. The programs have been written an

administrators trained in their use. Further improvements in the p

computer communications capability are planned for 1986. 

Circuit Trial Counsel Program 

The number of assigned circuit trial counsel (CTC) remained 

FY 1985. The average number of days TDY per case made a jump 

46 
FY79 FY80 FY81 FY82 FY83 FY84 

General 229 345 323 378 385 348 

(96%) (92%) (90%) (88%) (84%) (82%) 

Special 292 229 219 119 55 73 

(27%) (17%) (16%) (9%) (5%) (7%) 

Total 521 574 542 497 440 421 

(46%) (38%) (31%) (25%) (26%) (29%) 

In support of the urinalysis program a training workshop was 

continue to insure that at least one circuit trial counsel from eac

specially trained to prosecute these complex, scientific evide

addition to circuit trial counsel, 21 judge advocates nomin

commands attended. The successful prosecution of urinalysis case

support the important fight against drug abuse in the Air Force. 

Appellate Government Counsel 

In recognition of the substantial increase in workload generated 

court-martial activity starting in 1979 and 1980 and the added re

legislated by the 1984 Military Justice Act, two additional judge ad

authorized and assigned to the division. A petition for Certiorari 

United States v. Johanns, was filed with the United States Supr

August 1985. The Supreme Court denied the Petition for Writ of 

7 October 1985. No other Air Force cases reached the Supreme 

services did have certiorari activity, and this division expended 

number of man-hours on such cases. Appeals under Article 62, 

not been numerous, but significantly more cases were considered a

than were actually filed. 

Defense Counsel Program 

The Area Defense Counsel Program continued to provid

members facing adverse administrative actions and judicial an

proceedings with excellent representation by extremely well qua

Authorizations for area defense counsel increased from 120 

additional positions being authorized for George AFB, Californ
clients who had been convicted by courts-martial and who

authorized review by The United States Air Force Court of Mil

(AFCMR) and The United States Court of Military Appeals (US

workload was as follows: 

AFCMR 

ERRORS FILED 767 

ORAL ARGUMENTS 12 

OTHER MOTIONS 31

USCMA 

SUPPLEMENTS TO PETITIONS 39

BRIEFS IN SUPPORT 12

GRANT BRIEFS 16 

ORAL ARGUMENTS 23 

OTHER MOTIONS/PETITIONS 15

Confinement Facilities 

At the end of the fiscal year, 776 Air Force personnel were in 

45 pretrial and 73 l post-trial. The figure 776 represents the se

number in confinement in over 12 years. The Air Force priso

peaked at 824 during FY 1985. In addition, 92 Air Force priso

parole and 93 in excess leave status on 30 September, 1985. 

The average approved sentence to confinement resulting from g

martial during FY 1985 was 35 months, up significantly over th

This placed considerable pressure on our long-term confineme

During the early part of FY 1985, the Fort Lewis Installati

Facility, which began accepting Air Force prisoners in the latte

1983 and now accepts those with sentences of up to two years, 

allocation of Air Force prisoners from 125 to 150. In addition, 

prisoners awaiting transfer to the United States Disciplinary Barra

with sentences in excess of two years, was alleviated in early FY 

acquisition of 30 additional spaces at that facility. At the close of 

Air Force was fully utilizing its 200 spaces there, but about 20 

48 
The Preventive Law and Legal Aid Group (AF/JACA) in

program involving standardized organization of preventive la

resources within all Air Force legal offices, essentially indexing 

these resources within base-level libraries. Objectives are to 

retrieval of available information, to ensure informational 

maintained and kept current, and to save valuable time and manp

in the field by providing more and better products via the P

Clearinghouse. 

For the first time, the staff helped organize and implement 

income tax training course for overseas bases. In Europe it 

legal assistance providers, but in the Pacific the program also in

of unit tax advisors. With respect to tax forms distributio

(priority one) was used to ensure arrival of forms prior to clien

forms from employers. Moreover, HQ USAF/ JAES centrally 

Air Force legal assistance offices worldwide, reproducible f

state and federal tax forms and instructions. AF/DAPD a

reproduction of the forms when no other local sources were avai

An entirely new system for recording legal assistance 

developed, including a revised legal assistance card (AF Form 

system recognizes the important role of trained paralegals in 

legal services, facilitates recordation of more detailed inform

type assistance provided, and records actual time spent on each 

both preventive law and manpower standpoints, the new 

generate more meaningful information for better resource manag

Legal assistance service were provided to over 450,000 

million different matters during calendar year 1985. In li

American Bar Association Standing Committee on Legal 

Military Personnel, the Chief of the Preventive Law and Le

visted over 30 military legal assistance offices and crossfed ma

throughout the Air Force and our sister services. 

The Reporter, AFRP 110-2 

The Reporter continues to provide timely information on a 

legal issues. Topics given in-depth analysis in FY 1985 includ
The Air Force Judge Advocate General School 

Resident Courses 

The Air Force Judge Advocate General School, Leadership an

Development Center, Maxwell AFB, Alabama, conducted 

courses affecting military justice in FY 1985. 

a. Advanced Trial Advocacy Course-This 1-week course prov

advance advocacy skills to judge advocates currently serving as 

circuit trial or defense counsel. Thirty-four judge advocates 

course. 

b. Judge Advocate Staff Officer Course - A course providing s

instruction on the basics of military law. This course was offer

in FY 1985 and was attended by 107 judge advocates and one fo

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

provides Air Force Reserve personnel and National Guardsmen w

information on recent developments in military law. This cour

twice in FY 1985 and was attended by 128 Reservists and 1

Guardsmen. 

d. Staff Judge Advocate Course - This 2-week course pro

assigned staff judge advocates with both a refresher course in m

an update on recent developments. A total of 68 judge advocate

course, including six Reservists and five Air National Guardsmen

e. Trial and Defense Advocacy Course - This 1-week course

times during FY 1985, provides basic advocacy training to ju

acitvely engaged in trial practice and was attended by 96 Air For

judge advocates. 

f. Military Judges' Seminar - This 1-week seminar provides 

a forum in which to present and discuss new developments in m

This course was offered once in FY 1985 and was attended 

judges from all services. 

g. Basic Legal Services Specialist Course. This 6-week cour

at the Legal Services Specialist Course at Keesler AFB, Missi

offered 10 times during FY 1985 to 126 airmen and NCO's. 

refresher training· is also conducted at Keesler AFB, Mississippi

refresher course was offered four times, and 27 attended. 

50 
Character Evidence 

Advanced Advocacy 

Advanced Trial Techniques 

Sentencing 

Search and Seizure 

Government Lawyer and Professional Responsibility 

Short Courses at Civilian Universfties 

Ten judge advocates attended courses at the National Judicial 

University of Nevada during FY 1985 

Masters in Law Program 

During FY 1985, one judge advocate received a Master of 

criminal law. 

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

Six judge advocates attended the military judge's course at 

JAG School, Charlottesville, Virginia. Judge advocates also at

of War Workshop, Advanced Law of War Seminar, and 

Advocacy Course, and the Fiscal Law Course at the U.S. Arm

Six judge advocates attended the military judge's course at th

School, Newport, Rhode Island. 

Personnel 

As of 1October1985, there were 1346 judge advocates on a

total included 5 generals, 108 colonels, 221 lieutenant colone

656 captains, and 38 first lieutenants. 

ROBERT W. NO

Major General, U

The Judge Advoc
SUMMARY 67 58 9 OVERALL RATE OF INCREASE !+)/DECREASE(-} OVER LAST REPORT 

PART 2. DISCHARGES APPROVED 

REFERRED FOR REVIEW 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS·MAATIAL 

BCD SPECIAL COURTS-MARTIAL 

AA.TE OF INCREASE (+)/DECREASE(-) OVER NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD -3.0 % 

GENERAL COURTS-MARTIAL ICA LEVEL) 

NUMBER OF DISHONORABLE DISCHARGES 

NUMBER OF BAO CONDUCT OlSCHARGES 

SPECIAL COURTS-MARTIAL {SA LEVEL) 

NUMBER OF BAO CONDUCT DISCHARGES 368 

PART 3 ·RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR REVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL 4 2 2 

FOR REVIEW UNDER ARTICLE 66 ·BCD SPECIAL COUFITS-MARTIAL 32 9 

FOR EXAMINATION UNDER ARTICLE 69 ·GENERAL COURTS-MARTIAL 45 

PART 4 ·WORKLOAD OF THE AIR FORCE 

TOTAL ON MANO BEGINNING OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

88 

61 

PART 5 ·APPELLATE COUNSEL REQUESTS BEFORE COURT 

REVIEW 

-;.-u"_Mc_·.-·,..-"T_A_G_E----+-~-~~~~%---~li~~:~~~~:~;;~~::~~~~ .·.·.·.·.·.·.·.·.·.·.·.·.·.·.··:-·-:-:-:-:-:-:-:-:·:·:···:·:·:-:-:-:-:·:·:·:·:·:-:·:·::::::::::::::::::.;:::

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 7Sl 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY COMA '""J 751 

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

LAST REPORTING PERIOD 

PAGEIOF2 

52 
PART 8- ORGANIZATION OF COURT 

TRIALS BY MILITARY JUDGE ALONE 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS-MARTIAL 

TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS·MARTIAL 

248 

433 

PART 9 - COMPLAINTS UNDER ARTICLE 138 


NUMBER OF COMPLAINTS. I 2 9 


PART10-STRENGTH 

AVERAGE ACTIVE DUTY STRENGTH 583,760 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 2 

RATE PER 1.000 

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

PAGE 2 OF l 

\ 


Total 125 144 206 239 

COURTS-MARTIAL 

Attorney counsel are detailed to all special courts-martial. Norm

judges are detailed to all special courts-martial; however, one case 

tried with members only. For most cases, the presiding judge was 

general courts-martial judge. When he was unavailable, military 

other primary duties were utilized for special courts-martial. C

detail of judges is centrally exercised by the Chief Trial Ju

requirements have been met in a timely fashion. 

GENERAL COURTS-MARTIAL 

Charges referred to the five general courts-martial received this 

twenty-four specifications alleging violations of Articles 91, 92, 

One accused was tried by a court comprised of enlisted member

accused tried by courts with members, one received a sentence wh

bad conduct discharge and another, an 0-5, was sentenced to dism

U.S. Coast Guard 

SPECIAL COURTS-MARTIAL 

Seventeen of the forty-three accused tried by special courts-mart

year were tried by the military judge alone. Six of the twenty-six 

by members were acquitted of all charges and specifications. Onl

court-martial was tried without a military judge being detailed; 

president of the court was Article 27(b), UCMJ, certified. Seven 

discharges were awarded, three to accused tried by military judge a

to accused tried by courts with members. One of the punitive di

changed to confinement by the convening authority. Fourteen o

whose charges were referred to special courts-martial were nonrate

E-1 thru E-3), sixteen were petty officers (pay grades E-4 thru E-

chief petty officers (pay grades E-7 thru E-8), and one was an 

grade 0-3). 
112(a) (marijuana offenses) .............................

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

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

The following is a breakdown ofsentences awarded by the milita

in special courts-martial (16 convictions). 

Sentence C

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

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

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

forfeiture of pay ($8,825 total) .•..•..•......•.•...........•.

fines ($2,500 total) ...........................••............

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

56 
forfeiture of pay ($20,072 total) ............................

fine ($1,250 total) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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

In five of these twenty convictions the accused pied guilty to 

specifications. 

The following indicates the three sentences imposed mo

courts-martial in the past three fiscal years. 

FY Number of Forfeitures Confinement Reduct

Convictions in ~ad

85 36 24 (67%) 18 (50%) 28 (78

84 . 32 21 (66%) 18 (56%) 26 (81

83 62 35 (56%) 35 (56%) 49 (79

(average % for 3 years) 

SUMMARY 

One of the five general courts-martial, with members, adjud

which included a bad conduct discharge. One officer, 0-5, convic

court-martial received a sentence of dismissal from the Coast 

seven percent of the accused tried by special court-martial were t

judge alone, and twenty-five percent of them pied guilty to 

specifications. Twenty-five percent of the accused tried by speci

with members pied guilty to all charges and specifications. The

percent decrease in total courts-martial this fiscal year from last 

CHIEF COUNSEL ACTION UNDER ARTICLE 69, UC

In addition to the required reviews of courts-martial conducte

petitions filed by accused under Article 69, UCMJ, a discreti

conducted under Article 69 of all courts-martial not requiring ap
no direct commissioned attorneys in this year's class. All nine 

eligible for Article 27(b), UCMJ, certification upon graduation. O

course was devoted to military justice. Nonjudicial punishmen

professional responsibility and ethics, court procedures, trial/de

duties, and the Articles of the Code most frequently litigated wer

areas covered. Each student was given an opportunity to demon

acquired knowledge and skills in moot courts. 18 Coast Guar

currently undergoing post-graduate studies in law and will be ce

specialists at the completion of their studies. 

ADDITIONAL MILITARY JUSTICE STATISTICS 

Appendix A contains additional basic military judge statistics for 

period and reflects the increase/decrease of the workload in variou

EDWIN H. DANIE

Rear Admi.ral, USC

Chief Counsel, U.S

58 
SUMMARY 77 7J. 

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

PART 2 ·DISCHARGES APPROVED 

GENERAL COURTS-MARTIAL (CA LEVEL.J 

NUMBER OF DISHONORABLE DISCHARGES 00 

NUMBER OF BAO CONDUCT DISCHARGES 01 

SPECIAL COURTS-MARTIAL ISA LEVELJ 

NUMBER OF BAO CONDUCT DISCHARGES 06 

PART 3 - RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG 

FOR REVIEW UNDER ARTICLE 66 ·GENERAL COURTS-MARTIAL 

FOR REVIEW UNDER ARTICLE 68 - BCD SPECIAL COURTS-MARTIAL 

FOR EXAMINATION UNDER ARTICLE 69 ·GENERAL COURTS·MARTIAL 

PART 4 ·WORKLOAD OF THE COAST GUARD 

TOTAL ON HAND BEGINNING OF PERIOD 

GENERAL COURTS·MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

REFERRED FOR REVIEW 

GENERAL COURTS·MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL CASES REVIEWED 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

TOTAL PENDING AT CLOSE OF PERIOD 

GENERAL COURTS-MARTIAL 

BCD SPECIAL COURTS-MARTIAL 

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


Re VIEWED DURING LAST REPORTING PERIOD -57% 


PART 5- APPELLATE COUNSEL REQUESTS BEFORE COAST GUARD COURT 

REVIEW 

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

PERCENTAGE OF COMA REVIEWED CASES FORWARDED TO USCMA 4 8 

PERCENTAGE OF INCREASE f+llDECF=IEASE {-)OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF TOTAL PETITIONS GRANTED 1 4 

PERCENTAGE OF INCREASE f+l/OECAEASE f-1 OVER PREVIOUS REPORTING PERIOD 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED av COMA 1 8 

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

LAST REPORTING PERIOD 

PAGEi OF:! 
SPECIAL COURTS-MARTIAL 

TRIALS BY MILITARY JUDGE WITH MEMBERS 

GENERAL COURTS-MARTIAL 

SPECIAL COURTS-MARTIAL 

PART 9 ·COMPLAINTS UNDER ARTICLE 138 


NUMBER OF COMPLAINTS I 06 f<· 


PART 10 ·STRENGTH 

PART 11 ·NONJUDICIAL PUNISHMENT (ARTICLE 15) 

NUM8£1111 OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 

AVERAGE ACTIVE DUTY STRENGTH 38 280 

RATE PEA 1.000 

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

PA.GE~ OF 2 

.!. Military judges are normally assigned to all cases refe=ed to 

The Coast Guard, therefore, considers all special courts-martia

potential BCD cases. In a rare exception, one special court-ma

was tried without a military judge. However, the President of 

cou..rt was certified under Article 27(b), UCMJ. 

~ One accused tried by special court-martial received a sentence 

included a BCD. He waived his rights to appellate review under 

R.C.M. 1110, M:M 1984. 

l 	There were three Extraordinary Writs filed with the OIR this fi

l 	11n appeal under R.C.M. 908, M:M 1984, was filed with the OIR an

decided in favor of the governrrent. Appellate Cefense Counsel 

decision to the Court of Military Appeals. 

60