ANNUAL REPORT

of the

CODE COMMITTEE

on

MILITARY JUSTICE

INCLUDING SEPARATE REPORTS

of the

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

THE JUDGE ADVOCATES GENERAL

OF THE U.S. ARMED FORCES,

AND THE CHIEF COUNSEL

OF THE U.S. COAST GUARD

For the Period

October 1, 1997 to September 30, 1998
ANNUAL REPORT

SUBMITTED TO THE

COMMITTEES ON ARMED SERVICES

of the

United States Senate

and the

United States House of Representatives

and to the

SECRETARY OF DEFENSE,

SECRETARY OF TRANSPORTATION,

and

SECRETARIES OF THE

ARMY, NAVY, AND AIR FORCE

PURSUANT TO THE

UNIFORM CODE OF MILITARY JUSTICE

For the Period

October 1, 1997 to September 30, 1998
CONTENTS

Section 1: JOINT ANNUAL REPORT OF THE CODE COMMITTEE

Section 2: REPORT OF THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

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

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

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

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

COMMITTEE PURSUANT TO THE

UNIFORM CODE OF MILITARY JUSTICE

October 1, 1997 to September 30, 1998

The Judges of the United States Court of Appeals for

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

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

the Director, Judge Advocate Division, Headquarters, United

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

Professor Fredric I. Lederer, Public Members appointed by

the Secretary of Defense, submit their annual report on the

operation of the Uniform Code of Military Justice pursuant

to Article 146, Uniform Code of Military Justice, 10 USC §

946.

The Code Committee met during fiscal year 1998 to

consider various matters pertaining to the administration

of the Uniform Code of Military Justice. This meeting was

open to the public and interested attendees participated in

the proceedings. Code Committee members were presented

reports on pending cases and trends in court-martial

activity within each of the Armed Forces. Reports and

discussions also took place concerning various proposals to

amend the Uniform Code of Military Justice and the Manual

for Courts-Martial.

The Code Committee received a report submitted by its

Subcommittee on Technology, and determined that a copy of

this report should be forwarded to the Secretaries of

Defense and Transportation noting certain areas that had

been identified in which the use of technology could

enhance the efficiency and effectiveness of the military

justice system. In addition, the Committee received and

considered an interim report of its Subcommittee on the

Commemoration of the 50th Anniversary of the Uniform Code of

Military Justice.

A representative of the Joint-Service Committee on

Military Justice presented the results of a recent survey

revealing a serious problem in the recruiting and retention

of military lawyers who were not being compensated in a
2

manner that would allow them to pay off student loans

incurred as a result of their legal education. As a result

of the discussion of this problem, the Code Committee

agreed that a letter should be sent to the Chairman and

Ranking Minority Members of both the Senate Committee on

Armed Services and the House Committee on National Security

expressing the Code Committee’s concern with respect to

this problem and urging Congress to consider appropriate

remedial legislation. Other subjects discussed by the Code

Committee included the public availability of copies of the

Manual for Courts-Martial, issues under review by the

Joint-Service Committee on Military Justice, and

publication of the opinions of the United States Court of

Appeals for the Armed Forces and of the various Armed

Forces Courts of Criminal Appeals.

Separate reports of the United States Court of Appeals

for the Armed Forces and the individual Armed Forces

address further items of special interest to the Committees

on Armed Services of the United States Senate and the

United States House of Representatives, as well as the

Secretaries of Defense, Transportation, Army, Navy, and Air

Force.

WALTER T. COX III

Chief Judge

EUGENE R. SULLIVAN

Associate Judge

SUSAN J. CRAWFORD

Associate Judge

H.F. “SPARKY” GIERKE

Associate Judge

ANDREW S. EFFRON

Associate Judge

Major General WALTER B. HUFFMAN, USA

The Judge Advocate of General of the Army

Rear Admiral JOHN D. HUTSON, USN

The Judge Advocate of General of the Navy
3

Major General BRYAN G. HAWLEY, USAF

The Judge Advocate of General of the Air Force

Rear Admiral JOHN E. SHKOR, USCG

Chief Counsel, U.S. Coast Guard

Brigadier General THEODORE G. HESS, USMC

Director, Judge Advocate Division

Headquarters, United States Marine Corps

EUGENE R. FIDELL, Esquire

Public Member

Professor FREDRIC I. LEDERER

Public Member
REPORT OF THE

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

October 1, 1997 to October 1, 1998

The Judges of the United States Court of Appeals for

the Armed Forces submit their annual report on the

administration of the Court and military justice during the

1998 Term of Court to the Committees on Armed Services of

the United States Senate and the United States House of

Representatives, and to the Secretaries of Defense,

Transportation, Army, Navy, and Air Force in accordance

with Article 146, Uniform Code of Military Justice, 10 USC

§ 946.

THE BUSINESS OF THE COURT

 The number of cases carried over on the Court’s

Petition Docket at the end of the 1998 Term of Court

reflected an increase of 23% from the number of cases

pending at the end of the prior reporting period. (See

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

the Master Docket decreased substantially by 64% during the

same period. (See Appendix B.)

 During the 1998 Term of Court the number of petitions

for grant of review remained fairly constant compared with

the prior reporting period. (See Appendix J.) The number

of oral arguments increased by 14% during the 1998 Term of

Court and the number of opinions released by the Court

increased by the same percentage compared with the prior

reporting period. (See Appendices C and D.)1

 The average processing time from the date of filing a

petition to the date of a grant by the Court remained

fairly constant during the 1998 Term of Court when compared

with the prior reporting period. (See Appendix E.)

 

1

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

during its 1998 Term the Court was notified that petitions for writ of

certiorari were filed with the Supreme Court of the United States in 30

Master Docket cases in which the Court issued a final decision.
2

Although the average processing time from the date of grant

to the date of oral argument increased by 17%, the

processing time from the date of oral argument to final

decision remained fairly constant compared with the prior

reporting period. (See Appendices F and G.) The average

processing time from the filing of a petition to final

decision on the Petition Docket decreased by 17%, and the

same overall average on the Master Docket decreased

slightly by 2%. (See Appendix H.) The overall average

processing time from filing to final decision in all cases

during the 1998 Term of Court increased by 19%. (See

Appendix I.)

 The Chief Justice of the United States, acting

pursuant to Article 142(f), Uniform Code of Military

Justice, 10 USC § 942(f), designated the Honorable Kenneth

F. Ripple, United States Court of Appeals for the Seventh

Circuit, and the Honorable H. Robert Mayer, United States

Court of Appeals for the Federal Circuit, to sit as judges

of the United States Court of Appeals for the Armed Forces

during the 1998 Term of Court. Additionally, Senior Judge

Robinson O. Everett was recalled and participated in the

review and decision of several cases during the same

reporting period.

 During its 1998 Term the Court admitted 319 attorneys

to practice before its Bar, bringing the cumulative total

of admissions before the Bar of the Court to 31,160.

PUBLIC AWARENESS PROJECT

(PROJECT OUTREACH)

 Pursuant to its practice established in 1987, the

Court scheduled several special sessions and heard oral

arguments in selected cases outside its permanent

Courthouse in Washington, D.C. during the 1998 Term of

Court. This practice, known as “Project Outreach”, was

developed as part of a public awareness program to

demonstrate not only the operation of a Federal Court of

Appeals, but also the effectiveness and quality of the

criminal justice system of the Armed Forces of the United

States. Hearings were conducted without objection of the

parties at Fort Bliss, Texas; the University of Texas

School of Law, Austin, Texas; the Wake Forest University

School of Law, Winston-Salem, North Carolina; the Catholic

University of America Columbus School of Law, Washington,

D.C.; the George Washington University School of Law,
3

Washington, D.C.; the United States Coast Guard Academy,

New London, Connecticut; the United States Military

Academy, West Point, New York; the United States Air Force

Academy, Colorado Springs, Colorado; and the Naval War

College, Newport, Rhode Island.

 This program has continued to promote an increased

public awareness of the fundamental fairness of the

military criminal justice system and the role of the Court

in the overall administration of military justice

throughout the world. The Court hopes that those who

attend these hearings from both military and civilian

communities will realize that the United States is a

democracy that can maintain an armed force instilled with

the appropriate discipline to make it a world power, while

affording all its members the full protection of the

Constitution of the United States and Federal law.

JUDICIAL VISITATIONS

 During the 1998 Term of Court the Judges of the Court,

consistent with past practice and their ethical

responsibility to oversee and improve the entire military

criminal justice system, participated in professional

training programs for military and civilian lawyers, spoke

to professional groups of judges and lawyers, and visited

with judge advocates and other military personnel at

various military installations throughout the world.

JUDICIAL CONFERENCE

 On May 7 and 8, 1998, the Court held its Annual

Judicial Conference in the Marvin Center, George Washington

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

Conference Program was certified for credit to meet the

continuing legal education requirements of numerous State

Bars throughout the United States in order to assist both

military and civilian practitioners in maintaining those

professional skills necessary to practice before trial and

appellate courts. The Conference opened with welcoming

remarks and a presentation by the Honorable Walter T. Cox

III, Chief Judge, United States Court of Appeals for the

Armed Forces, on the “State of the Court,” followed by

speakers for this year’s Conference who included Professor

Mark V. Tushnet, Georgetown University Law Center; Dean

Donald N. Zillman, Dean and Godfrey Professor of Law,

University of Maine School of Law; Professor Robert P.
4

Mosteller, Duke Law School; the Honorable John J. Farley,

III, Associate Judge, United States Court of Veterans

Appeals; Lieutenant Colonel Lawrence J. Morris, Major

Maurice A. Lescault, Jr., and Major Norman F.J. Allen, III,

The Judge Advocate General’s School, United States Army;

Professor Stephen A. Saltzburg, George Washington

University Law School; Lieutenant Colonel Anne L. Burman,

The Judge Advocate General’s School, United States Air

Force; Eugene R. Fidell, Esquire; Mr. Thomas E. Ricks,

National Military Reporter, Wall Street Journal; Richard

Parker, Deputy Chief of the Civil Division, United States

Attorney’s Office, Eastern District of Virginia; Robert C.

Erickson, Assistant United States Attorney, Eastern

District of Virginia; and Lieutenant Commander Tammy P.

Tideswell, Naval Justice School, United States Navy.

 The Judge Advocates Association Awards for outstanding

career attorneys in each of the Armed Forces were presented

by Colonel William R. Hagan, USA (Ret.), President of the

Judge Advocates Association.

WALTER T. COX III

Chief Judge

EUGENE R. SULLIVAN

Associate Judge

SUSAN J. CRAWFORD

Associate Judge

H.F. “SPARKY” GIERKE

Associate Judge

ANDREW S. EFFRON

Associate Judge
5

USCA STATISTICAL REPORT

1998 TERM OF COURT

CUMULATIVE SUMMARY

CUMULATIVE PENDING OCTOBER 1, 1997

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

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

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

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

CUMULATIVE FILINGS

Master Docket .............................. 216

Petition Docket ............................1197

Miscellaneous Docket ....................... 21

TOTAL ......................................1434

CUMULATIVE TERMINATIONS

Master Docket .............................. 400

Petition Docket ............................1142

Miscellaneous Docket ....................... 25

TOTAL ......................................1567

CUMULATIVE PENDING OCTOBER 2, 1998

Master Docket .............................. 105

Petition Docket ............................ 290

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

TOTAL ...................................... 398

OPINION SUMMARY

CATEGORY SIGNED PER CURIAM MEM/ORDER TOTAL

Master Docket ........... 117 8 275 400

Petition Docket ......... 0 0 1142 1142

Miscellaneous Docket .... 5 0 20 25

TOTAL ................... 122 8 1437 1567
6

FILINGS (MASTER DOCKET)

 Remanded from Supreme Court ............... 3

 Returned from Court of Criminal Appeals.... 3

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

 Certificates filed ........................ 32

 Reconsideration granted ................... 3

 Petitions granted (from Petition Docket)... 175

 TOTAL ..................................... 216

TERMINATIONS (MASTER DOCKET)

 Findings & sentence affirmed .............. 317

 Reversed in whole or in part .............. 81 Signed .... 117

 Granted petitions vacated ................. 0 Per curiam . . 8

 Other disposition directed ................ 2 Mem/order .. 275

 TOTAL ..................................... 400 TOTAL ...... 400

PENDING (MASTER DOCKET)

 Awaiting briefs ........................... 34

 Awaiting oral argument .................... 32

 Awaiting lead case decision (trailer cases) 31

 Awaiting final action ..................... 8

 TOTAL ..................................... 105

FILINGS (PETITION DOCKET)

 Petitions for grant of review filed .......1185

 Petitions for new trial filed ............. 1

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

 Petitions for reconsideration granted ..... 5

 Returned from Court of Criminal Appeals ... 2

 TOTAL .....................................1197

TERMINATIONS (PETITION DOCKET)

 Petitions for grant dismissed ............. 1

 Petitions for grant denied ................ 898

 Petitions for grant granted ............... 175

 Petitions for grant remanded .............. 49 Signed ...... 0

 Petitions for grant withdrawn ............. 19 Per curiam .. 0

 Other ..................................... 0 Mem/order..1142

 TOTAL .....................................1142 TOTAL .... 1142
7

PENDING (PETITION DOCKET)

 Awaiting briefs ........................... 137

 Awaiting Central Legal Staff review ....... 46

 Awaiting final action ..................... 107

 TOTAL ..................................... 290

FILINGS (MISCELLANEOUS DOCKET)

 Writs of error coram nobis sought ........... 1

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

 Writs of mandamus/prohibition sought ........ 1

 Other extraordinary relief sought ........... 3

 Writ appeals sought ......................... 15

 TOTAL ....................................... 21

TERMINATIONS (MISCELLANEOUS DOCKET)

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

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

 Petitions granted ........................... 4

 Petitions denied ............................ 20 Signed .... 5

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

 Other ....................................... 0 Mem/order.. 20

 TOTAL ....................................... 25 TOTAL ..... 25

PENDING (MISCELLANEOUS DOCKET)

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

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

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

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

RECONSIDERATIONS & REHEARINGS

 BEGIN END DISPOSITIONS

CATEGORY PENDING FILINGS PENDING Granted Denied Total

Master Docket .... 1 80 6 3 72 75

Petition Docket .. 0 28 0 5 23 28

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

TOTAL ............ 1 108 6 8 95 103

MOTIONS ACTIVITY

 BEGIN END DISPOSITIONS

CATEGORY PENDING FILINGS PENDING Granted Denied Other Total

All motions ..... 23 822 25 736 76 8 820
Petition Docket Year End Pe

260

199 212

326

353

291 295

379

235

0

100200300400500

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX A
Master Docket Year End Pen

48

72 69

95

152

119

105

73

156

0

50

100150200

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX B

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

Weiss, No. 67869/MC.

2/ This figure does not include 87 trailer cases to United States v. Mitchell, No. 93-1044/NA, and 9 trailer cases to U

Rexroat, No. 93-5007/AR.

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

1/

2/ 3/
Oral Arguments Per Year

89

100

112

124 122

144

112 116 115

0

255075

100125150

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX C
Total Opinions Per Year

56

120

65

105

64

125

95

129

112

129

101

144

95

111

117 118

107

11

0

255075

100125150

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

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

 APPENDIX D
Days from Petition Filing to 

113 117

96

114 113 109

151

143 140 

0

255075

100125150175200

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX E
Days from Petition Grant

 to Oral Argument

158

131

143 151

188

244

276

213

161

0

50

100150200250300

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX F
Days from Oral Argument

 to Final Decision

185

148 141 151 159 166 169

194

163 

0

50

100150200250

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX G
Days from Petition Filin

to Final Decision

55

387

57

269

57

324

69

347

90

258

92

312

90

473

75

486

99

38

0

50

100150200250300350400450500550

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

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

 APPENDIX H
Days from Filing to

Final Decision in All Cas

76 75

82

108

145

178

138

120

139

0

20406080

100120140160180

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX I
Total Petitions Filed Per 

2383

2160

1813

1291

1610

1514

1251

1435

1234 

0

250500750

1000125015001750200022502500

FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 

 APPENDIX J
APPENDIX K

SELECTED DECISIONS AFFECTING THE

ADMINISTRATION OF MILITARY JUSTICE

WITHIN THE ARMED FORCES 1

PUBLIC ACCESS TO ARTICLE 32 PROCEEDINGS

Citing previous cases of the Court which held that the

right to a public trial set forth in the Sixth Amendment to

the Constitution applied to courts-martial, the Court held

in ABC, Inc. v. Powell, 47 MJ 363 (1997), that in the

absence of cause shown that outweighs the value of

openness, a military accused is entitled to a public

Article 32, UCMJ, pretrial investigative hearing. The

Court further held that when an accused is entitled to a

public hearing, the press enjoys the same right and has

standing to complain if access is denied. However, the

Court declined to adopt a position advanced by the news

media that requiring a witness to testify about personal

sexual history never qualified as a basis for closing such

a pretrial hearing. Rather, the Court held that a decision

on this specific issue must be made on a case-by-case,

witness-by-witness, and circumstance-by-circumstance basis

as to whether closure is necessary to protect the welfare

of a victim or alleged victim of sexual assault. After

noting that the decision to close the Article 32 hearing in

the case at hand had been made for unsubstantiated reasons,

the Court ordered it opened to the public and the news

media unless future compelling circumstances dictated a

different result.

 

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

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

convenience of the reader to assist in easily locating cases of

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

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

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

FORFEITURES AND REDUCTION IN GRADE

In United States v. Gorski, 47 MJ 370 (1997), the

Court held that the 1996 addition of Article 58b, UCMJ, and

the amendment of Article 57(a)(1), UCMJ, mandating

forfeitures for certain sentences and providing an earlier

reduction in grade violate the Ex Post Facto Clause of

Article I, § 9, of the Constitution when applied to courtmartial offenses committed prior to the effective date of

this legislation. The Court held in this regard that a

change in a minimum sentence was protected by Article I, §

9, and that the same rationale should apply to forfeiture

of pay and allowances since they constitute a form of

punishment under the military justice system.

Similarly, the Court held in Goldsmith v. Clinton, 48

MJ 84 (1998), that a statute which had been enacted after

an accused military officer was tried and sentenced could

not be used to drop him from the rolls and place him in a

non-pay status. 2

MENTAL RESPONSIBILITY

Reviewing a decision by a Court of Criminal Appeals

that limited the proof of lack of mental responsibility by

an accused to objective evidence, the Court in United

States v. Dubose, 47 MJ 386 (1998), ruled that such a

holding was error since all relevant evidence, both

objective and subjective, should be considered by the trier

of fact. In this regard, the Court ruled that the

testimony of experts in the fields of psychology and

neuropsychology was relevant and properly admissible in

evaluating whether a military accused had met the statutory

burden of proving lack of mental responsibility by clear

and convincing evidence.

EXPERT TESTIMONY

Examining the parameters of expert testimony in United

States v. Birdsall, 47 MJ 404 (1998), the Court held that

certain opinion testimony of a medical doctor and a

psychologist exceeded the scope of Military Rule of

Evidence 701 and resulted in reversible error in a sexual

assault case. The Court held in this regard that the trial

 

2

 The Supreme Court of the United States subsequently reversed this

decision in Clinton, et al., v. Goldsmith, 119 S.Ct. 1538 (1999).
3

judge erred by allowing a medical doctor to express his

opinion as to whether the alleged child sexual victims had

been sexually abused and by allowing a psychologist to

state her opinion on the credibility of the same alleged

victims. The Court emphasized in its ruling on this issue

that the testimony in question involved the ultimate issue

which the court-martial members were equally capable of

resolving and constituted an improper comment on the

victims’ credibility.

EXTRAORDINARY PROCEEDINGS IN A CAPITAL CASE

The Court in Loving v. Hart, 47 MJ 438 (1998),

addressed the constitutionality of a death sentence in the

context of an extraordinary writ-appeal case after the

Court of Criminal Appeals denied a petition for

extraordinary relief which challenged such a sentence. The

extraordinary relief challenge was litigated after the

Court had affirmed the death sentence in this case on

direct review, United States v. Loving, 41 MJ 213 (1994),

modified on reconsideration, 42 MJ 109 (1995), and after

the Supreme Court of the United States had affirmed this

decision (517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36

(1996)). Citing a number of its prior decisions the Court

concluded it had jurisdiction to consider the merits of the

accused’s claim under the provisions of the All Writs Act,

28 USC § 1651(a). The accused’s claim was predicated on a

question raised during oral argument before the Supreme

Court of the United States as to the validity of an

aggravating factor set forth in Rule for Courts-Martial

1004(c)(8) which used the phrase “actual perpetrator of the

killing” in reference to a felony murder conviction under

Article 118(4), UCMJ. In ruling thereon, the Court held

the conviction and death sentence to be sufficient to

withstand such a constitutional challenge. Citing several

Supreme Court cases concerning this issue, the Court held

that the military judge’s failure to define the phrase

“actual perpetrator of the killing” in a manner to require

an intent to kill was not constitutionally deficient in

view of existing Supreme Court precedent and the evidence

of record, since there was no reasonable possibility that

the court members understood the term “actual perpetrator

of the killing” to mean anything other than an intentional

killing. In addition, the Court ruled that, even assuming

arguendo that the phrase should have been further defined

by the military judge, such error was harmless beyond a

reasonable doubt under the circumstances of this case.
4

STATUTE OF LIMITATIONS

Recognizing that the Uniform Code of Military Justice

constituted the primary expression by Congress of the

rights and responsibilities of servicemembers, the Court

addressed the scope and purpose of the Right to Financial

Privacy Act (RFPA), 12 USC §§ 3401-3422, in United States

v. Dowty, 48 MJ 102 (1998), and ruled that such act

provided protection to military servicemembers charged with

violations of the Uniform Code. Thus, the Court held that

a military accused could properly contest the Government’s

attempt to obtain his financial records by filing a motion

in the appropriate United States District Court. However,

disagreeing with the ruling of the military trial judge on

a statute of limitations issue in the context of an appeal

by the United States under Article 62, UCMJ, the Court

ruled that the provisions of the RFPA that tolled the

statute of limitations also applied to Article 43, UCMJ,

and that the military trial judge had erroneously dismissed

certain charges against this accused. The Court held in

this regard that a citizen, whether military or civilian,

cannot claim coverage of the RFPA to protect against

intrusion by the Government into his private records while,

at the same time, disclaiming coverage of the RFPA to toll

the running of a statute of limitations during their

exercise of the very process under the statute by which

they claim that protection.

DEFENSE COUNSEL

Resolving an allegation by an accused in United States

v. Russell, 48 MJ 139 (1998), that his trial defense

counsel was ineffective for failure to locate a witness,

the Court established a standard for review of such claims

by holding that an accused must allege specific information

that counsel could have located the witness after a

reasonable investigation, that the witness would have been

available to testify, and that the substance of the

witness’s testimony would have assisted the accused’s

defense. After analyzing the record, the Court held that

the established standard had not been satisfied by the

accused in this particular case.

In United States v. Calhoun, 49 MJ 485 (1998), the

Court addressed an issue of first impression by rejecting a

defense assertion that no defense counsel employed by the
5

Government could be free from command influence when his

prior defense counsel’s office was searched by military

investigators after a question was raised that such defense

counsel may have been involved in the subornation of

perjury. Rather, the Court refused to adopt a per se rule

and held that the government funding of a civilian defense

counsel was not required unless an objective, disinterested

observer, with knowledge of all the facts, could reasonably

conclude that there was at least an appearance of unlawful

command influence over all military and other government

defense counsel. The Court noted in this regard the

extraordinary measures undertaken by the Government to

protect the attorney-client privilege in military courtmartial cases and ruled that no such finding was required

in the case at hand.

In United States v. Clark, 49 MJ 98 (1998), the Court

held that the appellant’s post-trial affidavit asserting

ineffective assistance of his trial defense counsel was

sufficient to require a factual inquiry under its earlier

decision in United States v. Ginn, 47 MJ 236 (1997). The

Court noted in this negligent homicide case that

appellant’s allegations concerning the failure of his

defense counsel to call an accident reconstruction expert

witness, if left unrebutted, would overcome the presumption

of competence and, thus, would suffice to establish

ineffective assistance of counsel.

JURISDICTION – RESERVISTS

The Court in Willenbring v. Neurauter, 48 MJ 152

(1998), resolved an issue which questioned the

applicability of Article 2(d), UCMJ, to a reservist who had

committed offenses while serving on active duty not as a

member of the reserves, but rather as a member of a regular

component of the Armed Forces. In rejecting a defense

argument that Article 2(d) was limited to an offense

committed while a member of a reserve component, the Court

emphasized the historical development of military criminal

jurisdiction as set forth by the Supreme Court of the

United States in various cases, the intent of Congress as

expressed in documents formulated during consideration of

the legislative proposals which led to enactment of the

Uniform Code of Military Justice and amendments thereto,

the Court’s own prior cases, and the evolution of the

reserve components into a component of the “total force”

concept of the Armed Forces. The Court ruled that, in the
6

context of such historical development, the phrase “active

duty” as used in Article 2(d) did not distinguish between

reserve and regular components and that such phrase was

inconsistent with the restrictive definition argued by the

appellant in this case.

SELECTION OF COURT MEMBERS

In United States v. White, 48 MJ 251 (1998), the Court

rejected a defense argument that the selection of a

disproportionately high number of commanders for service as

court members violated Article 25, UCMJ, and held that

since the qualities required for selection for command were

totally compatible with the statutory requirements for

selection as court members, evidence that more commanders

than non-commanders were selected for a court-martial panel

was not sufficient to raise an issue of court packing,

absent some evidence of improper motives or systematic

exclusion of a class or group of eligible candidates.

MILITARY INSPECTIONS

In United States v. Jackson, 48 MJ 292 (1998), the

Court rejected a defense argument that a commander’s

receipt of specific information about the presence of

contraband in his unit precluded a valid inspection

pursuant to Military Rule of Evidence 313. The Court held

in this case that so long as the primary purpose of the

inspection is “unit readiness” and not disciplinary

proceedings, it is permissible both (1) for an inspection

to take place after the commander receives specific

information about the presence of contraband and (2) for an

inspection for weapons or contraband to result in

disciplinary proceedings. In addition, the Court ruled

that a military judge could take into account the nature of

the contraband in determining whether unit readiness rather

than criminal prosecution of an individual was the primary

purpose for conducting a particular inspection.

DURESS

In United States v. Vasquez, 48 MJ 426 (1998), the

Court held that the military judge properly rejected a

defense requested instruction on the defense of duress.

After noting the genesis and purpose of this specific

defense, the Court ruled that the issue was not raised by

the accused’s claim that he was concerned about the
7

potential mistreatment of his friends in a foreign prison,

since he had a reasonable opportunity to seek appropriate

legal advice concerning his apprehension about their

safety. Thus, the Court noted that a nexus or causal

relationship between the threat and the wrongful act was

ensured by the requirement of the immediacy element of the

defense of duress, which encouraged individuals to promptly

report threats rather than breaking the law, and that this

element directly related to the requirement of a reasonable

apprehension of death or serious bodily harm.

SUBSTANTIVE LAW

In United States v. Arriaga, 49 MJ 9 (1998), the Court

held that an accused could be convicted of the offense of

obstruction of justice under Article 134, UCMJ, by lying to

military police investigators. In reaching this decision

the Court specifically rejected a defense argument that the

holding of the Supreme Court in United States v. Aguilar,

515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), that

interpreted 18 USC § 1503 as precluding prosecution for

lying to investigative agents alone, applied to an Article

134 prosecution for obstruction of justice. The Court

emphasized that the Supreme Court’s decision in Aguilar

rested on a particular analysis of the repeated references

in 18 USC § 1503 to “grand juror” and “petit juror” in the

context of an ongoing grand jury investigation or trial and

that such a restrictive analysis was inapplicable to the

prosecution of obstruction of justice in military law.

NEW TRIAL

In United States v. Brooks, 49 MJ 64 (1998), the Court

examined the procedures for resolving a petition for new

trial under the provisions of Article 73, UCMJ, and Rule

for Courts-Martial 1210(f)(2). The Court stressed that the

three elements set forth in Rule 1210(f)(2) for evaluating

newly discovered evidence required a determination as to

whether post-trial affidavits raised any material issues of

fact that must be resolved by a factfinding hearing under

the criteria set out in United States v. Ginn, 47 MJ 236

(1997).

RESIDUAL HEARSAY EVIDENCE

In addressing the admissibility of an out-of-court

statement made by an alleged victim under Military Rule of
8

Evidence 803(24), the Court held in United States v.

Johnson, 49 MJ 467 (1998), that a trial judge, in

evaluating the requirement for indicia of reliability,

should consider both those indicia that add to a

statement’s reliability as well as those indicia that

detract from a statement’s reliability in determining its

admissibility. After reviewing the record in this case,

the Court concluded that the trial judge had properly

admitted the statement in question.

PEREMPTORY CHALLENGE

In United States v. Ruiz, 49 MJ 340 (1998), the Court

held that a peremptory challenge of the only female member

of a court-martial panel by the trial counsel required some

explanation after the defense counsel contested such

challenge. Noting that it had previously decided in United

States v. Whitham, 47 MJ 297 (1997), that a gender-based

challenge involved the Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986), requirement for some

explanation by the challenging counsel, the Court further

held that the per se rule formulated in United States v.

Moore, 28 MJ 366 (CMA 1989), concerning a race-based

peremptory challenge, should be extended to a gender-based

peremptory challenge.

REHEARING

In United States v. Ruppel, 49 MJ 247 (1998), the

Court rejected a defense argument that a military judge

violated Rule for Courts-Martial 810(a)(3) by admitting

evidence underlying an accused’s conviction of a sex

offense involving his natural daughter at a separate

rehearing on the merits regarding offenses against the same

accused involving his stepdaughter. The Court ruled in

this regard that such evidence was admissible if it

qualified for admissibility under Military Rule of Evidence

404(b). The Court also held that the relationship between

Rule 810(a)(3) and Rule 404(b) was similar to the

relationship between Rule for Courts-Martial 910(g)(3),

relating to the prohibition against notifying court members

of a guilty plea of an accused prior to findings on

contested offenses, and Military Rule of Evidence 404(b),

citing United States v. Rivera, 23 MJ 89 (CMA 1986).
9

SENTENCING EVIDENCE

The Court held in United States v. Loya, 49 MJ 104

(1998), that the military judge committed reversible error

by rejecting defense evidence, during sentencing

proceedings, of the quality of medical treatment provided

to the victim when the accused was convicted of involuntary

manslaughter. The Court observed that the proffered

defense evidence tended to show additional facts and

circumstances surrounding the death of the victim which

would provide a more complete picture of the tragic event.

EVIDENCE

In United States v. Morris, 49 MJ 227 (1998), the

Court considered whether an appellate court could disagree

with the ruling of a trial judge that excluded an accused’s

confession in determining whether other evidence that was

admitted at trial was tainted and thereby constituted

improper derivative evidence of that confession. Citing

its own prior cases the Court held that, by considering the

accused’s confession, the Court of Criminal Appeals did not

reverse the trial judge’s ruling since the circumstances

surrounding the confession were being considered only with

respect to whether other evidence which was admitted at

trial was properly admissible or was tainted. In addition,

the Court held that the enactment of Article 62, UCMJ,

which gave the Government the right to appeal certain

rulings of the trial judge, did not overrule its earlier

decision in United States v. Nargi, 2 MJ 96 (CMA 1977), but

that Article 62 and Nargi are complementary: Nargi allowing

an appellate court to examine the underlying basis for a

ruling which excludes evidence, and Article 62 providing a

procedure for reversing a ruling on admissibility and

compelling the military judge to admit evidence.

In United States v. Blanchard, 48 MJ 306 (1998), the

Court addressed a question concerning the standards for

admissibility of taped conversations and rejected

appellant’s argument that the seven-prong test employed in

some federal circuits for admissibility of a taped

conversation should be applied in courts-martial. Noting

that disagreement existed among the federal circuits as to

the appropriate test for authentication and admissibility

of taped conversations and that Military Rule of Evidence

901(b)(5) particularly addressed authentication of voices

on tape recordings and expressly contemplated the more
10

flexible approach employed by several federal circuits for

this type of evidence, the Court held that the tape

recordings in this case were properly presented to the

court members for their determination as to authenticity.

CHALLENGES FOR CAUSE

In reviewing a military judge’s denial of a defense

challenge for cause for abuse of discretion the Court ruled

in United States v. Ovando-Moran, 48 MJ 300 (1998), that in

order for a court member’s vocational or professional

experience to be disqualifying, the member must demonstrate

a bias or prejudice resulting from or inseparable from this

experience. Thus, the Court held that the military judge

in this sexual assault case did not err in denying a

challenge for cause against a medical doctor who had

limited experience in the subject matter of the expert

testimony given at trial, since there was no indication

that this court member would thereby be rendered unable to

impartially listen to and evaluate such testimony.
REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY

OCTOBER 1, 1997 TO SEPTEMBER 30, 1998

During fiscal year 1998 (FY 98), the Office of The Judge Advocate

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

prepare military publications and regulations, and develop and draft

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

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

provided judicial and appellate services, advice, assistance, and

professional education to ensure the orderly and efficient

administration of military justice. Numbers in this report are based

on military end strength of 484,054 in FY 98 and 487,812 in FY 97.

MILITARY JUSTICE STATISTICS

STATISTICAL SUMMARY: FY 98

(See Attached Table)

U.S. ARMY LEGAL SERVICES AGENCY

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

OTJAG, includes the following organizations involved in the

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

Government Appellate Division, the Defense Appellate Division, the

Trial Defense Service, and the Trial Counsel Assistance Program.

U.S. ARMY JUDICIARY

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

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

Division, and the Trial Judiciary.

U.S. ARMY TRIAL DEFENSE SERVICE

During FY 98, the United States Army Trial Defense Service

(USATDS) continued to provide high quality, professional defense

counsel services to soldiers throughout the Army from 56 offices

worldwide. USATDS workload data for FYS 97 and 98 is displayed below.

FY 97 FY 98

General Courts-Martial (includes cases which

did not go to trial)

796 694

Special Courts-Martial (includes cases which

did not go to trial)

344 286

Administrative Boards 564 597

Nonjudicial Punishment 33,185 32,181

Consultations 30,026 28,668
2

USATDS conducted its bi-annual Capital Litigation Seminar at

Andrews Air Force Base. Military and civilian capital litigation

specialists provided instruction to over ninety military attorneys

from all four services. At Fort Polk, Louisiana, two USATDS counsel

successfully defended a client in a contested capital court-martial,

avoiding the death penalty.

Media attention continued to focus on soldiers accused of

fraternization, rape, and other consensual or nonconsensual sexual

offenses. In the most widely reported case, United States v.

McKinney, the trial court found the former Sergeant Major of the Army

guilty of one offense (obstruction of justice), out of nineteen

charged offenses, and reduced him to Master Sergeant.

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

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

and Bosnia. At certain locations, USATDS maintained inter-service

agreements to provide defense services to military personnel from

other services. TDS has continued to support soldiers in Physical

Evaluation Boards (PEB) at three selected locations, and is reviewing

a request to undertake PEB representation at a fourth location in

Europe.

TRIAL COUNSEL ASSISTANCE PROGRAM

During FY 98, the U.S. Army's Trial Counsel Assistance Program

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

training, and trial assistance to military prosecutors world-wide. In

addition to services provided to Army attorneys, TCAP had an expanded

constituency among prosecutors in the Air Force, Navy, Marine Corps,

and Coast Guard. TCAP provided four basic categories of services

during FY 98: (1) telephone/e-mail inquiry assistance; (2) advocacy

training courses; (3) publications; and (4) trial assistance.

During FY 98, TCAP personnel (three Army judge advocates

supported by a civilian paralegal) accomplished the following:

responded to 553 telephonic requests for assistance; answered 155 email requests for assistance; sent out materials 137 times in response

to calls; conducted eleven three-day advocacy training courses in the

continental United States, Panama, Korea, Hawaii, and Germany,

providing 242 hours of continuing legal education to 208 judge

advocates from all services at a cost of $16,905 or $81.27 per judge

advocate trained; held a video teleconference which was transmitted to

or later provided to every installation; and performed press liaison

duties for The Judge Advocate General (TJAG) in one court-martial. In

addition, TCAP started up the new TCAP Website consisting of 5

databases and nearly 500 full-text searchable documents. The Website

is readily accessible via the Lotus Notes system or the World Wide Web
3

(WWW). Nearly 400 applications for access from the WWW alone have

been processed. The largest percentage of these applications were

from Reservists, National Guard, and sister services. On one

occasion, TCAP provided a briefing on the TCAP Website at The Judge

Advocate General’s School (TJAGSA). This presentation was to the

Criminal Law New Developments Course.

Beyond this extensive support to trial counsel, TCAP attorneys

prepared 8 Answers and Returns to Habeas Corpus petitions filed with

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

United States Court of Appeals for the Tenth Circuit and one for the

Eastern District of North Carolina. TCAP reviewed, monitored, and

responded to 8 Extraordinary Writs filed in either the Army Court of

Criminal Appeals or the Court of Appeals for the Armed Forces and

handled three Government Appeals. Finally, they prepared briefs and

presented oral argument four times before the Army Court of Criminal

Appeals.

CRIMINAL LAW DIVISION

The Criminal Law Division, OTJAG, advises The Judge Advocate

General on military justice policy, legislation, opinions, and related

criminal law actions. Specific responsibilities include: promulgating

military justice regulations and reviewing Army regulations for legal

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

federal felony and magistrate court prosecutions, legal opinions for

the Army Staff, statistical analysis and evaluation, and Congressional

inquiries.

JOINT SERVICE COMMITTEE ON MILITARY JUSTICE

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

representative to the Joint Service Committee on Military Justice

(JSC). The JSC was established by the Judge Advocates General and the

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

conducts an annual review of the MCM as required by Executive Order

12473 and DOD Directive 5500.17. The JSC proposes and evaluates

amendments to the UCMJ, MCM, and serves as a forum for exchanging

military justice information among the services.

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

basis. In addition the Army representative served as the Chairman of

the Joint Service Committee until June 1, 1998.

During FY 98, the JSC completed its fourteenth annual review of

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

comment and a public meeting was held to receive comments from

interested parties. Highlights of the annual review’s proposed

changes include: setting forth the rules for issuing protective orders

preventing the parties and witnesses from making out of court
4

statements when there is a substantial likelihood of material

prejudice to a fair trial; clarifying which convictions are admissible

on sentencing; updating all of the model specifications by removing

the reference to the 20th Century from the date of the offense; and

incorporating numerous references into the existing rules, discussion,

and punitive articles regarding confinement for life with or without

eligibility for parole. Additionally, the JSC proposed legislation

amending Article 111 of the UCMJ to provide an alcohol blood/breath

concentration of 0.08 grams or more per 100 milliliters of blood or

210 liters of breath as a per se standard of illegal intoxication for

drunken operation of a vehicle, vessel or aircraft. Following

revision of the proposed changes in response to the public comments,

the proposed MCM changes should be forwarded to the DoD General

Counsel in early 1999.

The JSC continued its work on adultery which it started in FY 97

at the request of the Secretary of Defense. The proposed adultery

changes from the Senior Review Panel were published in the Federal

Register and comments on the changes were received at a public

meeting. During FY 99 the JSC will review those public comments to

see if the proposed changes should be revised in light of the

comments.

During FY 98, the JSC completed its review of the new DoD policy

prohibiting hazing and how to best make punitive any violations of

that policy. The JSC recommended to the DoD General Counsel that the

DoD policy be implemented by service directive rather than by changes

to the MCM or UCMJ. That recommendation was endorsed by the DoD

General Counsel and forwarded to the individual services. An Army

regulatory policy prohibiting hazing was subsequently drafted and is

currently being staffed.

FOREIGN CRIMINAL JURISDICTION

As Executive Agent for the Department of Defense, the Department

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

OTJAG, compiles information concerning the exercise of foreign

criminal jurisdiction over U.S. personnel.

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

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

picture of the exercise of foreign criminal jurisdiction during this

reporting period:
5

 1 Dec 1995 1 Dec 1996

 to to

 30 Nov 1996 30 Nov 1997

Foreign Offense Citations 4,611 4,870

Total Civilian 1,336 1,487

Total Military 3,275 3,383

 Exclusive Foreign Jurisdiction 152 187

 Concurrent Jurisdiction 3,123 3,196

 Traffic/Other Minor Offenses 331 346

 Foreign Jurisdiction Recalls 901 609

With the exception of Foreign Jurisdiction Recalls, there was a

slight increase in all categories. This increase was proportional

across all categories in certain major offenses, such as robbery,

larceny, aggravated assault, simple assault, drug offenses, as well as

in certain minor offenses, such as traffic offenses, disorderly

conduct, drunkenness and others.

This year, foreign authorities released 22 of the 187 exclusive

foreign jurisdiction cases involving military personnel to U.S.

authorities, for disposition. In concurrent jurisdiction cases in

which the foreign countries had the authority to assert primary

jurisdiction, U.S. military authorities were able to obtain waivers of

the exercise of this jurisdiction in 2,752 cases. Overall, waivers

were obtained by the U.S. in 86.1 percent of all exclusive and

concurrent jurisdiction cases. This figure reflects a 10 percent

increase in such waivers from 1995-1996, when the relevant figure was

75.6 percent.

During the last reporting period, civilian employees and

dependents were involved in 1,336 offenses. Foreign authorities

released 192 of these cases (14.4 percent of this total) to U.S.

military authorities for administrative action or some other form of

disposition. This year, civilian employees and dependents were

involved in 1,487 offenses. The foreign authorities released 250 of

these cases (16.8 percent of the current total).

Foreign authorities tried a total of 1,231 cases. Eighteen

trials, or 1.5 percent, resulted in acquittals. Those convicted were

sentenced as follows: 18 cases resulted in executed confinement; 64

cases resulted in suspended confinement; and 1,131 cases (91.9 percent

of the total trials) resulted in only fines or reprimands.

PROFESSIONAL RESPONSIBILITY

The Standards of Conduct Office (SOCO) manages TJAG’s

professional responsibility program. This program includes tasking

judge advocates for field inquiries into allegations of professional
6

misconduct, reviewing reports of inquiry, and advising The Assistant

Judge Advocate General on appropriate resolution of ethics cases.

SOCO oversees the operation of TJAG's Professional Responsibility

Committee and its issuance of advisory ethics opinions. It is also

responsible for overseeing professional responsibility training within

the Army. Working closely with TJAGSA, SOCO assists judge advocates

in implementing training programs in their commands and offices.

During 1997, seventeen professional conduct inquiries were

closed. This is a 49% decrease from 1996’s thirty-three cases. Of

the cases closed in 1997, six of the allegations of attorney ethical

violations were founded. Two of the founded cases were minor or

inadvertent violations of ethical rules. Of the remaining four cases,

two involved reserve component judge advocates suspended by their

state bars for matters unrelated to military service. One was a

National Guardsman who, in his state capacity, failed to diligently

appeal a client’s state court-martial conviction. The third case

involved a judge advocate who was relieved for lying and disclosing

confidential client information.

Through the end of November 1998, SOCO closed fourteen new

professional responsibility inquiries. Based on projected rates,

closed professional conduct inquiries will decrease by ten percent in

1998. Of the cases closed in 1998, four of the allegations of

attorney ethical violations were founded. Three of the four founded

cases were for minor or inadvertent violations of ethical standards.

The fourth case was for legal malpractice when a judge advocate

improperly advised a legal assistance client on a separation agreement

in 1988.

LITIGATION

The number of civil lawsuits against the Department of the Army

and its officials dropped slightly from previous years, with about 600

actions filed in FY 98. Cases that require civilian courts to

interpret the UCMJ constitute a small but significant portion of this

total. Most of these cases are filed by (former) soldiers seeking

collateral review of courts-martial proceedings in district courts,

usually via petitions for writs of habeas corpus, or in the Court of

Federal Claims in back-pay actions. Other suits involve challenges to

confinement conditions, to decisions to deny clemency or parole, to

revoke parole, or to other administrative actions taken by confinement

facility officials.

One case of particular note involved a habeas petition brought by

a soldier seeking to stay his pending court-martial for refusing to

obey orders to wear United Nations accouterments (blue beret and

brassard) incident to his unit’s deployment to Macedonia. During FY

98, an appellate court affirmed the district court’s decision
7

dismissing the petition, holding that federal civilian courts should

ordinarily not entertain such actions until the military justice

system (including all appeals) has run its course.

Another suit involves a class action filed by all inmates

currently confined at the United States Disciplinary Barracks (USDB).

The inmates claim that they are subject to unsafe living conditions

that violate the Eighth Amendment proscription against cruel and

unusual punishment. They allege that the USDB main building is

structurally unsound, that they are exposed to unsafe environmental

conditions, and that they are improperly subjected to certain

administrative practices. During FY 98, the district court denied the

inmates’ request for a preliminary injunction ordering the Army to

transfer them to other correctional institutions. The Army recently

filed a motion for summary judgment maintaining that there is no issue

of fact that the inmates are not exposed to unsafe living conditions

and that the administrative practices of which they complain are

proper, accepted correctional methods.

EDUCATION AND TRAINING

In Charlottesville, Virginia, the Criminal Law Department of The

Judge Advocate General’s School continued to lead the way in the

Corps-wide effort to improve and sustain trial advocacy skills.

Each Basic Course student is required to serve as trial and

defense counsel in three different advocacy exercises, an

administrative separation board, a guilty plea, and a contested courtmartial.

The unrivaled success of The Advocacy Trainer, A Manual for

Supervisors was clearly the highlight of 1998. Over 300 copies were

distributed worldwide and to sister services. The Trainer contains

numerous skill development drills in all aspects of court-martial

practice. The package of scripted and videotaped training scenarios

is designed to give supervisors – primarily chiefs of justice and

senior defense counsel – the ability to conduct “off the shelf”

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

made and orders were received from the Air Force, Navy and Marine

Corps as well. Following closely on its heels was the ATII 1998

Supplement.

The 4th Military Justice Managers Course included a new block of

instruction to “train the trainer” how to utilize The AT. The

Graduate Course was offered two electives regarding advocacy training,

enabling the School to draw on the advocacy skills and experience of

Graduate Course students and to spur the development of training

scenarios for practitioners.
8

 The department co-hosted the 2d National Security Crimes and

Intelligence Law Workshop in June 1998. This course was designed to

bring together practitioners and investigators in the national

security field. Military and civilian students from all services

attended the course, which was capped by an address from Mr. Thomas

Taylor, Office of the General Counsel, Department of Defense. The

next iteration of this course will occur in June 1999.

The department continued to strengthen its links to the sister

services and the civilian bar this year, not only by sharing the

Advocacy Trainer but also by instructing at each other’s courses.

Majors Edye Moran and Norm Allen served as instructors at the Air

Force Trial and Defense Counsel Advocacy Course. Major Hudson offered

instruction on testifying to agents at the Advanced Foreign CounterIntelligence Training Course, Fort Meade, Maryland, and Major Sitler

enlightened civilian attorneys in the art of trial advocacy at a

prosecutor’s workshop in Vale, Colorado.

Again the department was host to several distinguished guest

speakers, including Mr. Gerald P. Boyle, Esquire, Milwaukee,

Wisconsin, who spoke to the 9th Criminal Law Advocacy Course (CLAC) in

April; Mr. David Baugh, Esquire, Richmond, Virginia, who spoke to the

10th CLAC in September; and Colonel (Ret.) John Smith, who spoke to

the 10th CLAC in September. Brigadier General John S. Cooke, Retired,

delivered the Twenty-Sixth Kenneth J. Hodson Lecture on Criminal Law

in March 1998. Walter T. Cox III, Chief Judge of the Court of Appeals

for the Armed Forces, again opened the 41st Military Judge Course in

May, with his popular and motivational presentation on the challenges

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

had the opportunity to hear Brigadier General Wayne E. Alley, Retired,

now a federal district judge in Oklahoma, deliver his experienced

perspectives on judging. The 21st Criminal Law New Developments

Course in November 1997 featured Associate Judge Andrew S. Effron,

United States Court of Appeals for the Armed Forces, who enlightened

students about the significance of history in the military justice

system. Dr. Bruce Leeson, Department of Psychiatry, U.S. Disciplinary

Barracks (USDB), presented a lecture on new developments in the

psychiatric treatment of USDB inmates. Students in the New

Developments Course also had the opportunity to hear Colonel Lee D.

Schinasi, Retired, now at the University of Miami School of Law,

present his sage ideas on “Daubert, Science, and Syndrome: A

Landscape Under Construction.”

PERSONNEL, PLANS, AND POLICIES

The Total Army strength of the Judge Advocate General’s Corps at

the end of FY 98 was 4,438. The Reserve Component strength of the

Judge Advocate General’s Corps was 2939 with 665 officers serving in

the Army Reserve National Guard (ARNG) and 2274 officers serving in
9

the United States Army Reserve (USAR). The Active Army strength of

the Judge Advocate General’s Corps was 1,499. The Active Army

strength includes 54 officers participating in the Funded Legal

Education Program.

The diverse composition of the Active Army Judge Advocate

General’s Corps included 111 African-Americans, 44 Hispanics, 42

Asians and Native Americans, and 349 women. The Active Army FY 98 end

strength of 1,499 compares with an end strength of 1523 in FY 97, 1541

in FY 96, 1561 in FY 95, 1575 in FY 94, 1646 in FY 93, and 1710 in FY

92. The Active Army grade distribution was 4 general officers; 129

colonels; 212 lieutenant colonels; 315 majors; 749 captains; and 36

first lieutenants. Sixty warrant officers, 357 civilian attorneys,

and 1,487 enlisted soldiers supported Active Army legal operations

worldwide.

To ensure selection of the best-qualified candidates for

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

convened advisory boards several times during the year. Competition

for appointment in the Active Army Corps remains strong, with almost

seven applicants applying for each opening.

Two hundred and five Judge Advocate officers completed the

following resident service schools:

U.S. Army War College 2

National War College 1

Industrial College of the Armed Forces 2

Department of Justice Fellowship 1

U.S. Army Command and General Staff College 16

The Judge Advocate Officer Graduate Course 56

The Judge Advocate Officer Basic Course 127

During FY 98, ten officers completed funded study for LL.M.

degrees in the following disciplines: environmental law, contract

law, international law, tax law, and labor law.

As a separate competitive category under the Department of

Defense Officer Personnel Management Act, Active Army officers of the

Judge Advocate General’s Corps compete among themselves for promotion.

During FY 98, the Secretary of the Army convened six selection boards

to recommend Active Army Judge Advocate officers for promotion to

higher grades.

WALTER B. HUFFMAN

Major General, USA

The Judge Advocate General of the Army
Page 1 of 2

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 1998

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 685 639 46 -7.5%

BCD SPECIAL [A] 273 250 23 -12.5%

NON-BCD SPECIAL 14 11 3 +7.6%

SUMMARY 489 464 25 +23.4%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT 0%

PART 2 – DISCHARGES APPROVED [B]

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES (+ dismissals) 138 (+14)

 NUMBER OF BAD-CONDUCT DISCHARGES 406

SPECIAL COURTS-MARTIAL [A]

 NUMBER OF BAD-CONDUCT DISCHARGES 148

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 581

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 150

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 193

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

TOTAL ON HAND BEGINNING OF PERIOD 98 [C]

 GENERAL COURTS-MARTIAL [D]

 BCD SPECIAL COURTS-MARTIAL [D]

REFERRED FOR REVIEW 771 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL CASES REVIEWED 783 [E]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL PENDING AT CLOSE OF PERIOD 85 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

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

REVIEWED DURING LAST REPORTING PERIOD +6.0%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

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

NUMBER 720

PERCENTAGE 98.49%

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

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF (326 of 783) 41.6%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -10.5%

PERCENTAGE OF TOTAL PETITIONS GRANTED (46 of 326) 13.6%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD +37.2%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA 5.8%

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

LAST REPORTING PERIOD (50 in FY 97; 54 in FY 98) + 7.4%
Page 2 of 2

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

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 5

RECEIVED 27

DISPOSED OF 24

 GRANTED 2

 DENIED 9

 NO JURISDICTION 13

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 8

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 514

SPECIAL COURTS-MARTIAL 214

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 171

SPECIAL COURTS-MARTIAL 73

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 484054

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 41,447

RATE PER 1,000 85.6

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD +3.7

EXPLANATORY NOTES

 

[A] Cases convened by GCM convening authority.

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

[C] Includes only cases briefed and at issue.

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

[E] Includes Article 62 appeals, All Writs Act cases, and appeals withdrawn.
REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

OCTOBER 1, 1997 TO SEPTEMBER 30, 1998

SUPERVISION OF THE ADMINISTRATION OF

MILITARY JUSTICE

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

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

Judge Advocate General made frequent inspections of legal offices in

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

administration of military justice.

ARTICLE 69(a), UCMJ, EXAMINATIONS

Sixty-four general courts-martial records of trial not

statutorily eligible for automatic review by the Navy-Marine Corps

Court of Criminal Appeals (NMCCA) were forwarded for examination to

the Office of the Judge Advocate General in fiscal year 1998. Three

required corrective action by the Judge Advocate General. One was

forwarded by the Judge Advocate General to NMCCA for review pursuant

to Article 69(d), UCMJ. Twenty-one cases were pending review at the

close of fiscal year 1998.

ARTICLE 69(b), UCMJ, APPLICATIONS

In fiscal year 1998, 20 applications under Article 69(b), UCMJ,

were received for review. Additionally, seven such applications

remained pending from fiscal year 1997. Of these 27 applications, 14

were denied on the merits, while relief was granted in whole or in

part in one case. Twelve cases are currently pending review.

ARTICLE 73, UCMJ, PETITIONS

In fiscal year 1998, one petition for new trial was received by

the Office of the Judge Advocate General and that petition was denied.

APPELLATE DEFENSE DIVISION

Appellate Defense Practice. Appellate Defense received 1982

records of trial in fiscal year 1998. A total of 2249 cases were

filed, ending the backlog generated over previous years. This

accomplishment was the work of the 17 active duty and 25 reserve Navy

and Marine Corps judge advocates assigned to Appellate Defense. A

total of 27% were fully briefed to the Navy-Marine Corps Court of

Criminal Appeals, and another 13% were summarily assigned. In

addition, 353 cases were petitioned to the Court of Appeals for the

Armed Forces, and three to the Supreme Court of the United States.
2

Capital Litigation. The Defense Capital Litigation Center

completed its first full year of work in this most visible area of

law. The Center, headed by Captain Henry Lazzaro, JAGC, USNR provides

advice on trial and plea strategies, including research, motiondrafting, identification of expert witness issues, and expert witness

identification. In fiscal year 1998, the Center provided its

expertise in seven Navy and Marine Corps trial level cases where the

death penalty was sought or seriously considered.

The Center also provided advice, coordination, and the

procurement of Reserve counsel and funding for four pending appellate

level cases in which the death penalty was approved in the initial

action. The Center maintained liaison with and provided mutual

assistance to its counterparts in the Army and Air Force concerning

the three capital cases on appeal in those services. Finally, the

Center plays a large role in training trial defense counsel and

appellate counsel both at the Naval Justice School in Newport, Rhode

Island and at Marine Corps Air Station, Cherry Point, North Carolina.

Trial Defense Assistance. Appellate Defense provides advice to

trial defense counsel in the field on a continuing basis. The advice

is available electronically via extremely current reports on the

status of appellate case law and by telephone with the senior

Appellate Division who are detailed as field liaison officers.

Reserve Support. The reserve component continues to provide

outstanding support to the Appellate Defense Division. The reserve

units include: NAMARA (Defense) 111 in Oklahoma City, Oklahoma, which

has six reserve attorneys (plus one additional duty attorney) and is

headed by Captain Kristy L. Christen, JAGC, USNR;

NAVJAG 109 in Columbus, Ohio, which has four reserve attorneys

(plus 1 part-time additional duty attorney), headed by Captain Ben J.

Piazza, JAGC, USNR; and NR VTU 0614, which has three reserve

attorneys; and six independent Marine Corps Reservists. These twentyone reserve attorneys reviewed 1314 cases in 1998, nearly 60% of the

Division's caseload. In addition, several reserve attorneys provided

specialized assistance in capital cases. The Appellate Defense

Division supplies a tremendous example of reserve and active duty

commands working as a team to accomplish a mission that neither could

possibly do alone.

APPELLATE GOVERNMENT DIVISION

Appellate Representation. The eight Navy and five Marine Corps

judge advocates assigned to the Appellate Government Division filed a

total of 1753 pleadings last year; 1416 with the Navy-Marine Corps

Court of Criminal Appeals and 337 with the Court of Appeals for the

Armed Forces.
3

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

a function within the Appellate Government Division that provides a

central coordinating point to assist field trial counsel and staff

judge advocates in the effective prosecution of courts-martial.

Eleven appellate counsel are detailed to implement this program. In

fiscal year 1998, prompt assistance was provided in response to almost

750 telephone calls or electronic messages from trial counsel and

staff judge advocates requesting advice or information about cases

pending or being tried. Additional assistance was provided through

training presentations. The Appellate Government Division also

published 12 Electronic Viewpoints to the field dealing with a variety

of current legal issues.

Presentations. Government counsel participated in the 1998

Judicial Conference of the United States Court of Appeals for the

Armed Forces and made presentations at the Army Judge Advocate

General’s School, the Navy-Marine Corps Trial Judiciary Conference in

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

Minneapolis, Minnesota, the Courts of Criminal Appeals Judge’s

Conference in Washington, D.C., the Trial Services Office, Pearl

Harbor, Hawaii, the Trial Services Office, Seattle, Washington, and

multiple presentations at the Naval Justice School in Newport, Rhode

Island. These presentations included extensive support of the

Government’s Capital Litigation Course.

 Reserves. The Appellate Government Division provided training

to, while receiving outstanding support from, 13 Naval reservists

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

reservists. The reservists continued to make a significant

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

NAVY-MARINE CORPS TRIAL JUDICIARY

The Navy-Marine Corps Trial Judiciary (NMCTJ) consists of 34

active duty judges and 24 reservists serving in 13 circuit and four

branch offices. During fiscal year 1998, NMCTJ provided judicial

services in 470 general courts-martial and 2322 special courtsmartial. These numbers represent a decrease in general courts-martial

(78) and special courts-martial (376), compared to fiscal year 1997.

NMCTJ provided judicial services to Fleet and Shore activities,

and Marine Forces in the United States and around the world.

Additionally, NMCTJ provided judicial services to Coast Guard

activities in Alaska.

Members of the Trial Judiciary participated in continuing

judicial education at the Trial Judiciary's annual training

conference, the Naval Justice School, the Army Judge Advocate

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

Judges' Seminar. NMCTJ also provided training at various levels,
4

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

judge advocates through both formal and informal training sessions.

NAVAL LEGAL SERVICE COMMAND

Naval Legal Service Command (NAVLEGSVCCOM) provides a wide range

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

personnel, dependents, and retirees from 58 offices world-wide: eight

Navy Legal Service Offices (NLSOs), five Trial Service Offices (TSOs),

the Naval Justice School, and 45 detachments and branch offices.

NAVLEGSVCCOM provides counsel for courts-martial, administrative

separation boards, physical evaluation boards, legal assistance, and

local commanders. NAVLEGSVCCOM also provides assistance for claims

processing and adjudication, and training judge advocates, legalmen,

and other DoD/DON personnel.

Over the last year NAVLEGSVCCOM closed several NLSO and TSO

detachments and branch offices. NLSO Southwest Branch Office,

Guantanamo Bay and NLSO Europe and Southwest Asia Branch Office,

London closed. TSO East Branch Offices, Brunswick, Earle, and Newport

closed. TSO Southeast Detachments, Memphis and Gulfport closed, as

well as the Branch Office at Guantanamo Bay. TSO West Branch Office,

Port Hueneme closed, as well as TSO Pacific Branch Office, Guam.

These closures were necessary due to a loss of funding in fiscal year

1999 for 20 enlisted and 18 officers, which forced NAVLEGSVCCOM to

consolidate functions into regional hubs.

The field version of the Military Justice Management Information

System (MJMIS) was not as successful as we originally anticipated. We

have reverted back to JAGMIS for the tracking of services provided and

courts-martial and hope to implement a new management information

system in the near future.

NAVLEGSVCCOM is commanded by the Deputy Judge Advocate General of

the Navy and includes 311 officers, 218 enlisted, and 250 civilians.

NAVAL JUSTICE SCHOOL

Organization. Naval Justice School (NJS) reports to Commander,

Naval Legal Service Command, for administrative and operational

control. The main NJS facility is located in Newport, Rhode Island.

Teaching detachments are based in San Diego, California, and Norfolk,

Virginia (areas of Fleet concentration). Also reporting to Commanding

Officer, NJS, is the Defense Institute of International Legal Studies

(DIILS), operating under the Expanded International Military Education

and Training (EIMET) Program.

Mission Statement. NJS oversees training of judge advocates,

Limited Duty Officers (Law), and Legalmen to ensure their career-long

professional development and readiness; provides comprehensive formal

training to all Sea Service judge advocates and other legal personnel
5

to promote justice and ensure the delivery of quality legal advice and

other legal services; and trains Sea Service commanders and senior

officers in the practical aspects of military law to enable them to

perform their command and staff duties, and train other Sea Service

personnel to assist in the sound administration of military justice.

Coordination. Through the Inter-Service Legal Education Review

Committee (ISLERC), the Commanding Officer of NJS and the Commandants

of the Army and Air Force JAG Schools meet semi-annually to discuss

new initiatives and opportunities for cross-training and to increase

cooperation and efficiency in the training of legal personnel within

the Department of Defense.

Academic Programs. NJS has five "core" courses, each containing

substantial blocks of instruction relating to the UCMJ and operation

of the military justice system. These courses are:

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

offered four times per fiscal year, is the accession level course in

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

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

justice and courts-martial advocacy training (other topical areas

include legal assistance and administrative law). Upon graduation

from NJS, judge advocates are certified in accordance with Article

27(b), UCMJ. Fiscal year 1998 graduates include:

Navy: 84

Marine Corps: 50

Coast Guard: 19

Air Force: 2

International: 3

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

three times per fiscal year, trains enlisted personnel selected for

conversion to the legalman rating. In fiscal year 1998, the course

consisted of two phases: (a) Paralegal, dedicated to training Navy

legalmen in military justice practice (six weeks), and (b) Court

Reporters (three weeks). There were 43 fiscal year 1998 graduates.

3. Senior Officer Course (SOC) in Military Justice and Civil

Law. This four-day course is taught in Newport, Rhode Island, and

other areas of Fleet and Fleet Marine Force concentration. In fiscal

year 1998, the course was offered 18 times at 11 different locations.

The course prepares senior officers (typically 04-06) to execute their

legal responsibilities inherent in command. The majority of the

course focuses on such areas as nonjudicial punishment and courtsmartial procedures. Fiscal year 1998 participants in SOCS included:
6

 Navy: 678

Marine Corps: 210

Coast Guard: 8

Civilian: 7

Air Force: 4

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

officers perform a host of military justice functions in many commands

that are not large enough to warrant assignment of a judge advocate.

This four-week course prepares these collateral duty legal officers

(typically pay grades 0-1 to 0-3) to assume legal duties in their

respective commands. This course is offered a total of 16 times per

fiscal year at Newport, Rhode Island, San Diego, California, and

Norfolk, Virginia. Fiscal year 1998 legal officers trained included:

Navy: 422

Marine Corps: 55

Coast Guard: 1

International: 3

5. Legal Clerk Course. Legal clerks are typically assigned to

assist non-lawyer legal officers within a command. This is usually a

collateral duty for a command yeoman, or personnelman, or a Marine

Corps legal services specialist. This two-week course provides

training in the preparation of legal forms and reports, service record

entries, post-mast and post courts-martial procedures. In fiscal year

1998, the course was offered a total of 20 times at Newport, Rhode

Island, San Diego, California, and Norfolk, Virginia. Fiscal year

1998 participants included:

Navy: 276

Marine Corps: 19

Civilian: 3

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

continuing legal education programs throughout the fiscal year that

contained detailed instructions relating to UCMJ functions. These

included:

Officer Courses Length

Reserve Judge Advocate Course Two weeks

Staff Judge Advocate Course Two weeks

Capital Litigation Course Three days

 (Separate offerings for Prosecution and Defense) each

Intermediate Trial Advocacy Course One week

Advanced Trial Advocacy Course Two days

Coast Guard Law Specialist Course One week

Reserve JAGC Military Law Update Workshops Two days

Computer Crimes Two days

National College of District Attorneys Course One week

Senior Leadership Military Justice Refresher Two days
7

Enlisted Courses Length

Reserve Legalman Course Two weeks

Army Reserve Court Reporting Course Two weeks

Mid-Career Legalman Course Two weeks

Coast Guard Legal Clerk Course Three weeks

Senior Legalman Course One week

International Programs. DIILS provides expertise in over 150

legal topics related to Military Law, justice systems, and the rule of

law, with an emphasis on the execution of disciplined military

operations. DIILS has presented programs to over 9,600 senior

military and civilian government officials in 66 countries worldwide

since its inception in late 1992. Teams consisting of judge advocates

from all uniformed services utilize the UCMJ and personal experiences

to compare, contrast, and develop military justice systems in emerging

democracies. In fiscal year 1998, DIILS presented 53 weeks of

seminars in 39 developing nations. Significantly, 24 percent of the

participants have been civilian members of these governments who

determine policy and create new military justice codes.

Publications. NJS is responsible for the publication of the

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

any additional materials directed by higher authorities. In fiscal

year 1998, Volume 45 of the Naval Law Review was published and

contained several articles related to Operational and International

Law. NJS also updated several of its study guides.

MARINE CORPS ACTIVITIES

The Marine Corps judge advocate community consisted of

approximately 392 judge advocates during fiscal year 1998. Nearly

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

0-3 or below. Forty-one officers were new accessions, ordered to

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

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

from ABA-accredited law schools by way of government-sponsored law

education programs. Four of these officers graduated from the Funded

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

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

and 15 are now attending law school under the ELP(LAW).

Twelve judge advocates attended resident professional military

education courses in fiscal year 1998. Six majors and two lieutenant

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

Judge Advocate General's School. Two captains completed the

Amphibious Warfare School in Quantico, Virginia, and one major

completed the Command and Staff Course. Two lieutenant colonels

completed top level schools and two majors received LL.M. degrees

through the Special Education Program (SEP). Fifteen officers are

currently attending resident professional military education courses

and two are assigned to the SEP. As unrestricted officers, Marine
8

Corps judge advocates continued to fill numerous non-legal billets.

Two judge advocates serve in command billets, one at Company F, Marine

Security Guard Battalion, Frankfurt, Germany, and the other at

Headquarters Battalion, Marine Corps Base, Hawaii. During fiscal year

1998, two judge advocates (one colonel and one lieutenant colonel)

were approved for command. Ten judge advocates continued to serve in

joint billets.

The Marine Corps Reserve judge advocate community averaged 393

officers during fiscal year 1998. Approximately 300 of these officers

were actively participating in the Reserve. One reserve colonel judge

advocate currently serves as appellate judge on the Navy-Marine Corps

Court of Criminal Appeals. Eleven reserve judge advocates, major

through colonel, serve as appellate counsel in the Navy-Marine Corps

Appellate Review Activity. Reserve judge advocates serve at bases and

stations throughout the country and overseas. They provide legal

support alongside, and are indistinguishable from, their active duty

counterparts in billets ranging from instructors at Naval Justice

School to legal assistance attorneys at Marine Corps Base, Camp

Pendleton, California. Reserve judge advocates are also found serving

in non-legal billets at various combat arms and supporting commands.

JOHN D. HUTSON

Rear Admiral, USN

The Judge Advocate General of the Navy
Page 1 of 2

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

Report Period: FY 1998

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 470 459 11 -14%

BCD SPECIAL 2322 2309 13 -14%

NON-BCD SPECIAL 0 0 0 0%

SUMMARY 1783 1762 21 +9%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT -6%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 173

 NUMBER OF BAD-CONDUCT DISCHARGES 199

SPECIAL COURTS-MARTIAL ( SA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 1658

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 413

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 1550

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 60

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

 APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 2008

 GENERAL COURTS-MARTIAL 488

 BCD SPECIAL COURTS-MARTIAL 1520

REFERRED FOR REVIEW 2002

 GENERAL COURTS-MARTIAL 431

 BCD SPECIAL COURTS-MARTIAL 1571

TOTAL CASES REVIEWED 2518

 GENERAL COURTS-MARTIAL 468

 BCD SPECIAL COURTS-MARTIAL 2050

TOTAL PENDING AT CLOSE OF PERIOD 1495

 GENERAL COURTS-MARTIAL 453

 BCD SPECIAL COURTS-MARTIAL 1042

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

REVIEWED DURING LAST REPORTING PERIOD +25%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

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

NUMBER 2002

PERCENTAGE 100%

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

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 16%

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

PERCENTAGE OF TOTAL PETITIONS GRANTED 12%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -2%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA 2%

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

LAST REPORTING PERIOD + 4%
Page 2 of 2

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

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 7

RECEIVED 20

DISPOSED OF 15

 GRANTED 1

 DENIED 14

 NO JURISDICTION

 WITHDRAWN

TOTAL PENDING AT END OF PERIOD 12

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 346

SPECIAL COURTS-MARTIAL 2143

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 130

SPECIAL COURTS-MARTIAL 180

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 171

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 550,287

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 31,575

RATE PER 1,000 57.3

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD -7%
 REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE

OCTOBER 1, 1997 TO SEPTEMBER 30, 1998

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

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

Judge Advocate General made official staff inspections of field legal

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

participated in various bar association meetings and addressed many

civic, professional, and military organizations.

THE AIR FORCE COURT OF CRIMINAL APPEALS

The Court workload and production has remained relatively stable

over the past two years. Court manning has dropped from nine to seven

judges, with two of the seven judges (Chief Judge Rothenburg and Judge

Morgan) scheduled to leave the Court by the middle of fiscal year

1999. The Court’s ability to maintain a level of production

commensurate with the number of cases referred for review has been

largely attributable to the record-setting work of two judges (Judge

Senander and Judge Morgan). With the pending departure of Chief Judge

Rothenburg and Judge Morgan, the number of cases awaiting review will

increase until the Court is once again fully manned.

The ex post facto application of UCMJ Articles 57(a) and 58b to

adjudged sentences, as well as other post-trial issues, presented a

significant portion of the Court’s workload. The Court implemented a

state-of-the-art Internet webpage that provides access to its

published opinions, rules, and other appellate information of interest

to practitioners and the public. The Court has also laid the

groundwork for one of the first electronic filing of pleading systems

in the federal courts. The courtroom is undergoing a full renovation,

scheduled to be complete by May 1999. The Court will hear oral

arguments at the Washington Navy Yard and Andrews AFB in the meantime.

USAF JUDICIARY ORGANIZATION

The USAF Judiciary Directorate has responsibility for overseeing

the administration of military justice throughout the United States

Air Force, from nonjudicial proceedings to the appellate review of

courts-martial. Additionally, the Directorate has the staff

responsibility of the Air Force Legal Services Agency in all military

justice matters which arise in connection with programs, special

projects, studies, and inquiries generated by the Department of

Defense (DoD), Headquarters USAF, members of Congress, and various

agencies. The Judiciary Directorate consists of the Trial Judiciary

Division, Government Trial and Appellate Counsel Division, Appellate

Defense Division, Trial Defense Division, Military Justice Division,

and the Clemency, Corrections and Officer Review Division.
2

TRIAL JUDICIARY DIVISION

 The Air Force Trial Judiciary had an average of 20 active duty

trial judges, 5 reserve trial judges, and 9 noncommissioned officers

assigned throughout 5 judiciary circuits worldwide. The Chief Trial

Judge, his military judge assistant and one noncommissioned officer

are assigned to the Trial Judiciary headquarters. The military

judges’ duties include: presiding over all general and special courtsmartial tried in the United States Air Force; serving as investigating

officers under Article 32, UCMJ; legal advisors for officer discharge

boards and other administrative boards; and hearing officers at public

hearings held to consider draft environmental impact statements.

During the year, military judges averaged approximately 120 days on

temporary duty to perform these functions at locations other than

their bases of assignment.

The Chief Trial Judge made supervisory visits to all three

continental United States (CONUS) circuits and both of the overseas

circuits to review workload and facilities. The Trial Judiciary has a

Website on the Internet for trial judges. The Website contains

reference materials and is updated continually.

The Twenty-Fourth Interservice Military Judges’ Seminar was

conducted by the Trial Judiciary at The Air Force Judge Advocate

General’s School, Maxwell AFB, Alabama, from 19-24 April 1998. This

seminar was attended by 65 military judges from the trial judiciaries

of the Army, Navy, Marine Corps, the Air Force and by a military trial

judge from Canada.

Five active duty trial judges and two reserve trial judges

attended the three-week Military Judges’ course conducted by The Army

Judge Advocate General’s School in Charlottesville, Virginia, from 4

through 22 May 1998. In November 1997, two active duty judges

attended the Trying Capital Cases Course in Reno, Nevada conducted by

the National Judicial College. In August 1998, seven judges, six

active duty and one reservist, attended the Special Problems in

Criminal Evidence Course in Reno, Nevada.

The Chief Trial Judge attended both the mid-year and the annual

meeting of the American Bar Association. He serves on the Executive

Committee of the National Conference of Special Court Judges and as

Chair of the Military Courts Committee. He also serves as the Chair

of the Military Courts Committee of the Judiciary Division, Federal

Bar Association. These interactions with civilian judges are most

beneficial in promoting a greater mutual understanding of the military

and civilian justice systems and the roles of military and civilian

judges.
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GOVERNMENT TRIAL & APPELLATE COUNSEL DIVISION

APPELLATE GOVERNMENT COUNSEL

In November 1997, the Chief, Trial and Appellate Government

Counsel Division and three appellate counsel traveled to The Army

Judge Advocate General’s School to attend the Criminal Law New

Developments Course. This course covered the latest military cases in

all significant areas of criminal law. In addition to providing the

newest counsel an update in the most recent criminal law developments,

it was an opportunity for both appellate counsel and trial counsel to

spend several hours together outside of the classroom to discuss ways

to better serve the base legal offices.

Appellate government counsel helped develop and plan the firstever Military Justice Administration Workshop (MJAW) designed to

assist numbered Air Force and base legal offices in understanding the

complexities and problems associated with administering a military

justice program. In December 1997, two appellate government counsel

taught at the first MJAW conducted at the Air Force Judge Advocate

General’s School at Maxwell AFB, Alabama. These same two appellate

government counsel also provided instruction at the MJAW conducted at

the HQ SPACECOM legal office in February 1998.

Appellate government counsel also prepared and provided an

appellate update on United States Court of Appeals for the Armed

Forces (USCAAF) and Air Force Court of Criminal Appeals (AFCCA)

decisions and trends in case law for each of the trial counsel

workshops in the five judicial circuits. Additionally, appellate

government counsel provided instruction on a myriad of military

justice topics at the Trial and Defense Advocacy Course, the Advanced

Trial and Defense Advocacy Course, and the Staff Judge Advocate Course

conducted at the Air Force Judge Advocate General’s School.

The Trial and Appellate Government Counsel Division continues to

manage the Advocacy Continuing Education (ACE) Program. The web page

dedicated to the ACE Program is routinely updated with materials of

assistance to trial counsel worldwide, including the Trial Counsel

Deskbook annually prepared by appellate government counsel. Easy

access to these materials supplements the briefing provided by

appellate government counsel at the Trial and Defense Advocacy Course

and the Advanced Trial and Defense Advocacy Course.

Appellate government counsel have contributed to “Project

Outreach,” sponsored by USCAAF and the AFCCA, by conducting oral

arguments before audiences at the United States Air Force Academy and

Air Force Judge Advocate General’s School, educating personnel about

the fairness and professionalism of the military justice system.

Currently there are seven reserve judge advocates assigned as

appellate government counsel. They continue to provide superb

support, greatly assisting the Trial and Appellate Government Counsel

Division in carrying out its mission. In addition to preparing

written briefs, three of the reserve counsel have presented oral
4

argument before the Court of Appeals for the Armed Forces during the

fiscal year.

Appellate practice before USCAAF and AFCCA is cyclic as indicated

below.

AFCCA FY 95 FY 96 FY 97 FY 98

Briefs Filed 412 329 434 320

Cases Argued 33 27 22 10

USCAAF FY 95 FY 96 FY 97 FY 98

Briefs Filed 71 80 85 48

Cases Argued 33 52 58 59

SUPREME COURT FY 95 FY 96 FY 97 FY 98

Petition Waivers Filed 24 4 15 17

Briefs Filed 2 0 0 0

CIRCUIT TRIAL COUNSEL

The manning authorizations for the fiscal year included 18

Circuit Trial Counsel (CTC) at three circuit offices in CONUS, while

four CTCs cover the Pacific and European theaters, two per theater.

During fiscal year 1998, Circuit Trial Counsel had tried 268 general

courts-martial or 56% of all general courts-martial. In addition,

Circuit Trial Counsel had tried 44 special courts-martial and

represented government interests in 10 officer discharge boards held

Air Force wide. Several CTCs attended the Criminal Law New

Developments Course at the Army Judge Advocate General’s School in

Charlottesville, Virginia. Workshops for base-level prosecutors were

conducted by the CTCs in all five judicial circuits. Circuit Trial

Counsel also utilize their talents by teaching as adjunct instructors

at the Trial and Defense Advocacy Course and the Advanced Trial and

Defense Advocacy Course.

APPELLATE DEFENSE COUNSEL DIVISION

The past year has again been an eventful one for the Air Force

Appellate Defense Division. In response to a petition filed by the

United States Solicitor General, the United States Supreme Court

granted certiorari in the case of Clinton v. Goldsmith. This is the

second consecutive year that division personnel have been involved in

an Air Force case in which the Supreme Court granted certiorari. The

division is currently preparing its Brief for the Respondent.

During this period, the case of United States v. Simoy was argued

by division personnel, including a reserve attorney, and decided by

the United States Court of Appeals for the Armed Forces. This case

was the only Air Force death penalty case.
5

Issues concerning Articles 57(a) and 58b, UCMJ, were again major

issues this year before both the Air Force Court of Criminal Appeals

and the Court of Appeals for the Armed Forces.

Appellate counsel continued to support trial defense counsel in

the field through active participation in Circuit Defense Counsel

Workshops. Counsel provided briefings at the workshops to field trial

defense practitioners on new developments in military criminal law.

Appellate counsel also taught new Area Defense Counsel at Area Defense

Counsel Orientation Courses.

The following figures reflect the division’s workload over fiscal

year 1998:

AFCCA

Cases Reviewed 603

Oral Arguments 10

USCAAF

Supplements to Petitions 424

Grant Briefs 40

Oral Arguments 59

Supreme Court

Petitions 17

Briefs in Opposition 1

Briefs on the Merits 0

TRIAL DEFENSE DIVISION

The Trial Defense Division is responsible for providing all

defense services within the Air Force through Area Defense Counsel

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

Chief Circuit Defense Counsel (CCDC). These personnel report directly

to the Chief, Trial Defense Division (JAJD), who reports to the

Director, United States Air Force Judiciary (JAJ).

The ADC office at Howard AFB, Panama, was closed this year due to

impending closure of the installation, and a new defense office was

opened at Hanscom AFB, Massachusetts. Both of these changes took

place within the Eastern Circuit. The Division is manned with 81 ADCs

stationed at 71 bases worldwide. They receive paralegal support from

72 DPs. The Division has 21 CDCs and 5 CCDCs. The CCDCs, along with

all but four of the CDCs, are stationed at the circuit offices located

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

Germany; and Yokota AB, Japan. A single defense paralegal is assigned

to each of the three CONUS circuits.
6

The continuing success of the Air Force’s Area Defense Program is

largely attributable to its independence and its energized personnel.

Other than advising and representing clients, training remains the

division’s top priority. Aside from on-the-job training and mentoring

that is provided by CCDCs and CDCs, newly appointed defense counsel

receive formal training at the Area Defense Counsel Orientation and at

various Circuit-sponsored workshops. DP training was broadened in

1998 with the introduction of Circuit DP Conferences. The Division

also provided adjunct faculty members for the Trial and Defense

Advocacy Course and the Advanced Trial Advocacy Course, held at the

Air Force Judge Advocate General’s School, Maxwell AFB, AL.

MILITARY JUSTICE DIVISION

The Military Justice Division prepares opinions and policy

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

for Correction of Military Records. They also assemble reports on

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

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

Service Committee on Military Justice (JSC). On 1 June 1998, the

division chief became the chairman of the JSC.

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

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

on applications submitted to the Air Force Board for Correction of

Military Records. The Division provided 120 formal opinions

concerning such applications. They also received 374 inquiries in

specific cases requiring either formal written replies or telephonic

replies to senior officials, including the President and members of

Congress. The Division took the lead in developing, planning, and

teaching the first two Military Justice Administration Workshops.

Finally, the Military Justice Division provided representatives to all

interservice activities involving military justice and support for the

Code Committee. The Military Justice Division also reviewed 77

records of trial for review under Article 69(a), UCMJ. On 30 December

1997, The Judge Advocate General referred one of those cases, United

States v. Rogers, to the Air Force Court of Criminal Appeals for

review pursuant to Article 69(d)(1), UCMJ.

CLEMENCY, CORRECTIONS & OFFICER REVIEW DIVISION

The primary responsibilities of the Clemency, Corrections and

Officer Review Division are to (1) recommend appropriate disposition

of statutorily required sentence review actions by the Secretary of

the Air Force in officer and cadet dismissal cases; (2) recommend

action by The Judge Advocate General or the Secretary of the Air

Force, as appropriate, to effect statutorily authorized clemency for

members of the Air Force under court-martial sentence; (3) represent
7

The Judge Advocate General on the Air Force Clemency and Parole Board;

(4) make recommendations for the Secretary of the Air Force to the

Attorney General on Presidential Pardon applications by courtmartialed Air Force members; and (5) advise The Judge Advocate General

and Security Force Command on corrections issues.

Confinement

At the end of fiscal year 1998, a total of 403 Air Force

personnel were in post-trial confinement, a six-percent decrease from

last fiscal year. Of those, 178 inmates were in long-term confinement

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

Kansas, and 66 are serving time in the Federal Bureau of Prisons (BOP)

system. There were 12 inmates in the Return-to-Duty Rehabilitation

(RTDR) Program, with two graduating and being returned to duty during

this period. The number of Air Force inmates on parole at the end of

fiscal year 1998 was 153, a 16 percent increase from last fiscal year.

AIR FORCE JUDGE ADVOCATE GENERAL’S SCHOOL

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

seven professional continuing schools organizationally aligned as part

of Air University’s Ira C. Eaker College for Professional Development

at Maxwell Air Force Base, Alabama. The William L. Dickinson Law

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

supports Paralegal Studies. The AFJAGS conducts legal education for

attorneys and paralegals from all military services; provides

instruction at other Air University schools and colleges; publishes

The Reporter and The Air Force Law Review; and maintains JAG

Department liaison with civilian professional organizations, law

schools, and states requiring continuing legal education.

Resident Courses

 The AFJAGS conducted some 50 classes in-residence covering nearly

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

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

seminars, and workshops conducted at the AFJAGS included:

 Accident Investigation Officers

 Advanced Environmental Law

 Advanced Labor and Employment Law

 Advanced Trial Advocacy

 Claims and Tort Litigation

 Deployed Air Reserve Components Operations and Law

 Environmental Law

 Environmental Law Update

 Federal Employee Labor Law

 Federal Income Tax Law

 International Law

 Judge Advocate Staff Officer

 JAG Family Team Building

 Law Office Managers

 Legal Aspects of Information Operations
8

 Military Judges

 Military Justice Administration (First time ever held in FY 98)

 Operations Law

 Paralegal Apprentice

 Paralegal Craftsman

 Reserve Component WebFLITE

 Reserve Forces Judge Advocate

 Reserve Forces Paralegal

 Staff Judge Advocate

 Trial and Defense Advocacy

 Included in this curriculum, the AFJAGS conducted four “Surveys

of the Law” for both judge advocates and paralegals in the reserve

components. The surveys are conducted at a civilian conference center

in Denver, Colorado. The surveys provide concentrated legal updates

and include extensive reviews of recent developments in military

justice and civil law. During fiscal year 1998, over 600 reserve and

Air National Guard judge advocates and paralegals attended the AFJAGS

Survey of the Law. In addition, the AFJAGS conducted two “road shows”

in EUCOM and PACOM to update Air Force, Army, and Navy personnel

assigned overseas on a host of legal topics, including military

justice and professional ethics.

Distance Learning Courses

 The AFJAGS utilizes distance learning for those educational

offerings that lend themselves to effective teaching through this

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

Logistics Contracting Course and the Fiscal Law Course via teleseminar

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

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

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

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

format.

Outside Teaching

 In addition to the resident courses, the AFJAGS faculty provided

military justice instruction in the following colleges, schools,

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

Command and Staff College; Squadron Officer School; College of

Aerospace Doctrine, Research, and Education; International Officers

School; Basic Officers’ Training Course; Commissioned Officers’

Training Course; USAF First Sergeant Academy; Senior Noncommissioned

Officer Academy; Group Commanders’ Course, and the Chaplain

Orientation Course.

 The AFJAGS participated in the Expanded International Military

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

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

program is designed to further U.S. foreign policy goals as

established in the Foreign Assistance Act. The E-IMET Program

involves joint U.S. military teaching teams sent abroad to teach human
9

rights, military justice, civilian control of the military, law of

armed conflict, rules of engagement, and general democratic

principles. Faculty from the AFJAGS continued to participate in a

number of E-IMET program missions in fiscal year 1998.

 Publications

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

professional legal journal consisting of articles of interest to Air

Force judge advocates, civilian attorney advisors, and other military

lawyers. The Law Review is a scholarly publication that encourages

frank discussion of relevant legislative, administrative, and judicial

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

Department’s quarterly legal publication containing articles of

general interest, were distributed in March, June, September, and

December. Each issue of The Reporter has two sections dedicated to

contemporary military justice issues. A third section addresses

ethical issues that have surfaced in the military justice context.

The school updated and redistributed substantial numbers of its most

popular publication, The Military Commander and the Law, a 600+ page

compendium of legal topics addressing the issues confronting today’s

Air Force commanders. The Military Commander and the Law is also

available to military users on WebFLITE, where it is revised every six

months.

LEGAL INFORMATION SERVICES

LEGAL INFORMATION SERVICES, also known as JAS, released version

III of the Automated Military Justice Accounting and Management

(AMJAMS III) software this summer. AMJAMS III moves this program onto

a Microsoft Windows compatible format and incorporates the trial

judiciary and appellate processing of a case. AMJAMS now tracks each

AF military justice case from preferral through each case’s final

appellate action. The cooperation of the Appellate Government and

Defense communities, the Trial Judiciary, and the Air Force Court will

allow us to have one database to track all military justice actions

from cradle to grave.

WebFLITE, our legal research database, stays involved in our

military justice program. WebFLITE usership has increased ten-fold

over the past five years, converting it to the Department’s

communications hub as well as a world class legal research asset. JAS

hosts the public web sites for USCAAF and AFCCA. JAS plans to provide

the same service to the Discharge Review Boards for all of the

Services. Last year, Judge Cox, Chief Judge of USCAAF, asked the

WebFLITE staff to work with him to create a system for the electronic

filing of documents with the Court. The Air Force Court of Criminal

Appeals agreed to participate and to be the test bed for the project.

A test of the system, starting with enlargements of time, is scheduled

to begin in fiscal year 1999.
10

The JAS Resources Division, working with an Air Force paralegal

process action team, is examining the use of voice recognition

software to transcribe records in Court-Martial cases. JAS has

purchased two units from the Audioscribe Corporation, and they have

been given to two experienced court reporters to test in the field.

Initial results are very favorable. Both court reporters are happy

with the units and legal offices are impressed with the time they can

save normally devoted to transcribing a record of trial. Following

the completion of the test program, the team will examine ways in

which this new technology can be distributed and used in the field.

PERSONNEL

As of 30 September 1998, there were 1,328 judge advocates on

duty. Company grade officers (captains and first lieutenants) made up

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

including two major generals and three brigadier generals; 25% were

majors and the remaining 15% lieutenant colonels.

BRYAN G. HAWLEY

Major General, USAF

The Judge Advocate General of the Air Force
Page 1 of 2

APPENDIX - U. S. AIR FORCE MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 1998

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 442 411 31 -16.1%

BCD SPECIAL 304 288 16 -24.9%

NON-BCD SPECIAL [A]

SUMMARY 76 73 3 +8.6%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT -18.0%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 44

 NUMBER OF BAD-CONDUCT DISCHARGES 269

SPECIAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 53

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 359

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 141

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 74

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

TOTAL ON HAND BEGINNING OF PERIOD 368

 GENERAL COURTS-MARTIAL 271

 BCD SPECIAL COURTS-MARTIAL 97

REFERRED FOR REVIEW 562

 GENERAL COURTS-MARTIAL 411

 BCD SPECIAL COURTS-MARTIAL 151

TOTAL CASES REVIEWED 576

 GENERAL COURTS-MARTIAL 407

 BCD SPECIAL COURTS-MARTIAL 169

TOTAL PENDING AT CLOSE OF PERIOD 354

 GENERAL COURTS-MARTIAL 275

 BCD SPECIAL COURTS-MARTIAL 79

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

REVIEWED DURING LAST REPORTING PERIOD -3.5%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

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

NUMBER 561

PERCENTAGE 99.8%

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

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF (457/576) 79.3%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -9.0%

PERCENTAGE OF TOTAL PETITIONS GRANTED (74/457) 16.2%

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

PERIOD[B] - 30.7%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA( 74/576) 12.8%

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

LAST REPORTING PERIOD (527:457) -13.3%
Page 2 of 2

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

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 0

RECEIVED 6

DISPOSED OF 4

 GRANTED 0

 DENIED 4

 NO JURISDICTION 0

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 2

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 246

SPECIAL COURTS-MARTIAL 164

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 196

SPECIAL COURTS-MARTIAL 140

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 23

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 378,981

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 7984

RATE PER 1,000 21.07

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD -5.9%

EXPLANATORY NOTES

 

[A] The Air Force does not convene Non-BCD SPCMs. Of the 304 BCD SPCMs tried, there were 121 convictions with a

 BCD adjudged and 167 convictions without a BCD adjudged.

[B] The percentage decrease is a result of the aberration caused by the FY 1997 petitions granted pertaining to U.S. v.

 Gorski, 47 M.J. 370 (1997).
REPORT OF THE CHIEF COUNSEL OF THE COAST GUARD

OCTOBER 1, 1997 to SEPTEMBER 30, 1998

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

and filed at Coast Guard Headquarters during FY-98 and the five

preceding years.

Fiscal Year 98 97 96 95 94 93

General Courts-Martial 18 6 22 11 9 14

Special Courts-Martial 21 9 16 8 23 31

Summary Courts-Martial 8 10 14 14 15 11

Total 47 25 52 33 47 56

COURTS-MARTIAL

Attorney counsel were detailed to all special courts-martial.

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

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

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

unavailable, military judges with other primary duties were used for

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

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

timely fashion.

GENERAL COURTS-MARTIAL

Nine of the 18 accused tried by general courts-martial this fiscal

year were tried by military judge alone. Two of the 9 accused tried

by military judge alone received a dishonorable discharge and 5

received a bad-conduct discharge. Four of the 9 accused tried by

general courts-martial with members received sentences which included

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

courts-martial which included enlisted members and no accused elected

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

one of the general courts-martial resulted in convictions. Five of

the accused whose charges were referred to general courts-martial were

nonrated (pay grades E-1 through E-3), 7 were petty officers (pay

grades E-4 through E-6), 5 were chief petty officers (pay grades E-7

through E-9), and one was a junior officer (W2 through O-3).

The following is a breakdown of the sentences adjudged in general

courts-martial tried by military judge alone (9 convictions):

Sentence Cases Imposed

dishonorable discharge - - - - - - - - - - - - - - - - - - - - 2

bad conduct discharge - - - - - - - - - - - - - - - - - - - - - 5

confinement - - - - - - - - - - - - - - - - - - - - - - - - - - 9

reduction in rate - - - - - - - - - - - - - - - - - - - - - - - 8

fined (total $20,000.00)- - - - - - - - - - - - - - - - - - - - 1

forfeiture of all pay and allowances - - - - - - - - - - - - - 4
2

The following is a breakdown of sentences adjudged in general

courts-martial tried by members (8 convictions).

Sentence Cases Imposed

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

bad-conduct discharge - - - - - - - - - - - - - - - - - - - - - 3

confinement - - - - - - - - - - - - - - - - - - - - - - - - - - 3

reduction in rate - - - - - - - - - - - - - - - - - - - - - - - 8

hard labor without confinement- - - - - - - - - - - - - - - - - 5

restriction - - - - - - - - - - - - - - - - - - - - - - - - - - 5

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

The following indicates the frequency of imposition of the four

most common punishments imposed by general courts-martial in the past

five fiscal years.

 Punitive

 Number of Reduction Discharge/

FY Convictions Forfeitures Confinement in Grade Dismissal 

98 17 5 (29%) 12 (71%) 16 (94%) 11 (65%)

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

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

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

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

The following table shows the distribution of the 440

specifications referred to general courts-martial.

Violation of the UCMJ, Article No. of Specs.

 80 (attempts) - - - - - - - - - - - - - - - - - - - - - - - 13

 83 (fraudulent enlistment)- - - - - - - - - - - - - - - - - 1

 86 (absence without leave)- - - - - - - - - - - - - - - - - 4

 92 (failure to obey order or regulation) - - - - - - - - - 34

 93 (cruelty and maltreatment) - - - - - - - - - - - - - - - 14

107 (false official statement) - - - - - - - - - - - - - - - 7

108 (wrongful disposition of military property)- - - - - - - 1

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

 substances) - - - - - - - - - - - - - - - - - - - - - - 6

120 (rape or carnal knowledge) - - - - - - - - - - - - - - - 8

121 (larceny or wrongful appropriation) - - - - - - - - - - 82

123 (forgery) - - - - - - - - - - - - - - - - - - - - - - - 4

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

 order without sufficient funds) - - - - - - - - - - - - 136

125 (sodomy) - - - - - - - - - - - - - - - - - - - - - - - - 4

128 (assault)- - - - - - - - - - - - - - - - - - - - - - - - 11

129 (burglary) - - - - - - - - - - - - - - - - - - - - - - - 4

134 (general) - - - - - - - - - - - - - - - - - - - - - - - 111

GENERAL COURTS-MARTIAL SUMMARY

Fifty per cent of the accused tried by general courts-martial were

tried by military judge alone. There was a 66% increase in general

courts-martial records received and filed at Coast Guard Headquarters

in this fiscal year over last fiscal year. Due to the relatively small
3

size of the Coast Guard this change is not statistically significant

when viewed as a single-year change. Over the past five years the

Coast Guard has averaged approximately 14 general courts-martial per

year.

SPECIAL COURTS-MARTIAL

Nineteen of the 21 accused tried by special courts-martial this

fiscal year were tried by military judge alone. Four bad-conduct

discharges were adjudged, all by the military judge. Two accused

elected to be tried by courts consisting of officer members. No

accused elected to be tried by a court consisting of enlisted members.

Three of the accused whose charges were referred to special courtsmartial were nonrated (pay grades E-1 through E-3), 12 were petty

officers (pay grades E-4 through E-6), 5 were chief petty officers

(pay grades E-7 through E-9), and one was a junior officer (W2 through

O-3).

The following is a breakdown of sentences adjudged in special

courts-martial tried by military judge alone (19 convictions).

Sentence Cases Imposed

bad-conduct discharge - - - - - - - - - - - - - - - - - - - - 4

confinement - - - - - - - - - - - - - - - - - - - - - - - - - 7

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 16

partial forfeiture of pay - - - - - - - - - - - - - - - - - - 8

restriction - - - - - - - - - - - - - - - - - - - - - - - - - 7

confinement at hard labor - - - - - - - - - - - - - - - - - - 2

hard labor without confinement - - - - - - - - - - - - - - - 12

fined (total $6,000.00) - - - - - - - - - - - - - - - - - - - 3

The following is a breakdown of sentences adjudged in special

courts-martial tried by members (two convictions).

Sentence Cases Imposed

reduction in rate - - - - - - - - - - - - - - - - - - - - - - 1

partial forfeiture of pay - - - - - - - - - - - - - - - - - - 1

restriction - - - - - - - - - - - - - - - - - - - - - - - - - 1

hard labor without confinement - - - - - - - - - - - - - - - 1

reprimand - - - - - - - - - - - - - - - - - - - - - - - - - - 1

The following shows the four sentences imposed most by special

courts-martial in the past five fiscal years.

 Number of Reduction

FY Convictions Forfeitures Confinement in Grade BCD 

98 20 9 (45%) 9 (45%) 17 (85%) 4 (20%)

97 9 4 (44%) 6 (66%) 8 (88%) 5 (55%)

96 14 11 (79%) 10 (71%) 13 (93%) 7 (50%)

95 7 3 (43%) 5 (71%) 6 (86%) 2 (29%)

94 20 6 (30%) 17 (85%) 20 (100%) 11 (55%)
4

The following table shows the distribution of the 184

specifications referred to special courts-martial.

Violation of the UCMJ, Article No. of Specs.

 81 (conspiracy)- - - - - - - - - - - - - - - - - - - - - - 3

 83 (fraudulent enlistment) - - - - - - - - - - - - - - - - 2

 85 (desertion) - - - - - - - - - - - - - - - - - - - - - - 2

 86 (unauthorized absence)- - - - - - - - - - - - - - - - - 3

 87 (missing movement)- - - - - - - - - - - - - - - - - - - 1

 90 (assaulting or willfully disobeying a superior

 commissioned officer) - - - - - - - - - - - - - - - - - 2

 92 (failure to obey order or regulation) - - - - - - - - - 34

 93 (cruelty and maltreatment)- - - - - - - - - - - - - - - 2

107 (false official statements) - - - - - - - - - - - - - - 15

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

 disposition of military property of the U.S.)- - - - - 3

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

 substance) - - - - - - - - - - - - - - - - - - - - - - 31

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

117 (provoking speech or gestures)- - - - - - - - - - - - - 1

121 (larceny or wrongful appropriation) - - - - - - - - - - 26

123 (forgery) - - - - - - - - - - - - - - - - - - - - - - - 3

123A (insufficient funds)- - - - - - - - - - - - - - - - - - 14

128 (aggravated assault)- - - - - - - - - - - - - - - - - - 1

129 (burglary)- - - - - - - - - - - - - - - - - - - - - - - 5

133 (conduct unbecoming an officer) - - - - - - - - - - - - 3

134 (general) - - - - - - - - - - - - - - - - - - - - - - - 32

SPECIAL COURTS-MARTIAL SUMMARY

Ninety per cent of the accused tried by special courts-martial

were tried by military judge alone. Five per cent of these accused

pled guilty to all charges and specifications. None of the accused

tried by special courts-martial with members pled guilty to all

charges and specifications. There was a 75% increase in special

courts-martial received and filed at Coast Guard Headquarters this

fiscal year over last fiscal year. Due to the relatively small size of

the Coast Guard this change is not statistically significant when

viewed as a single-year change. Over the past five years the Coast

Guard has averaged approximately 18 special courts-martial per year.

CHIEF COUNSEL ACTION UNDER ARTICLE 69, UCMJ

In addition to the required reviews of courts-martial

conducted as a result of petitions filed under Article 69, UCMJ,

a discretionary review was conducted under Article 69 of all courtsmartial not requiring appellate review.

PERSONNEL, ORGANIZATION, AND TRAINING

The Coast Guard has 169 officers designated as law specialists

(judge advocates) serving on active duty - 129 are

serving in legal billets and 40 are serving in general duty
5

billets. Eighteen Coast Guard officers are currently undergoing

postgraduate studies in law and 18 will be certified as law

specialists at the completion of their studies (6 to graduate in 1999,

2000, and 2001, respectively). Seventeen Coast Guard officers (5

postgraduates and 12 direct-commissioned officers) completed the Navy

Basic Lawyer Course in Newport, Rhode Island. All have been or are in

the process of being certified under Article 27(b), UCMJ.

Approximately $180,000.00 was spent on legal training during the

fiscal year.

U. S. COAST GUARD COURT OF CRIMINAL APPEALS

Following the retirement of several senior law specialists, the

number of judges on the Court dropped from five judges to four in

January 1997 and has remained at that number with the following judges

during fiscal year 1998:

Chief Judge Joseph H. Baum

Judge David J. Kantor

Judge Ronald R. Weston

Judge Lane I. McClelland

For much of the past year, the Court has frequently operated with

only three judges, since many cases on the docket stemmed from the

period when Judge McClelland was Chief Trial Judge. Of necessity, she

was precluded from participating in decisions where she had acted in

some capacity as trial judge. One case of note in which Judge

McClelland did participate was a petition for extraordinary relief in

the nature of a writ of habeas corpus, Frazier v. McGowan, which was

filed with the Court on 28 May 1998. The Court issued a show cause

order on 29 May 1998, received briefs from the parties and heard oral

argument five days later on 3 June 1998. That same day the Court

issued an order releasing the petitioner from confinement and

deferring confinement until resolution of the issue raised by the

petition, whether the action of the convening authority changing a bad

conduct discharge to twelve months confinement was lawful. That

decision, which found the convening authority’s action to be lawful,

but continued deferment until the decision becomes final or is

rescinded, was issued on 3 August 1998, after briefs from the parties

and the National Institute Of Military Justice, as amicus curiae, were

received and oral argument heard.

In addition to the decisional work of the Court, as reflected in

Appendix A, the judges of the Court have been involved in various

professional conferences, committees and seminars during the past

fiscal year. In March 1998, the judges of the Court participated in

the William S. Fulton Jr. Appellate Military Judges Conference at the

Federal Judicial Center in Washington, D.C. It was the first year for

this annual conference to be held under its new name honoring retired

Colonel William S. Fulton Jr. who has played such an important role in

enhancing the quality of military justice during his fifty four years

of military and government service, which included service as

Appellate Judge on the Army Court of Military Review and Clerk of that

Court and the Army Court of Criminal Appeals. This year’s conference
6

was hosted by the Army and featured two presentations in the morning,

one on Extraordinary Writs by an instructor from the Army Judge

Advocate General’s School and the other on military case perspectives

at the Supreme Court level by retired Major General William K. Suter,

Clerk of the U.S. Supreme Court, and Mr. Michael Dreeben, U.S. Deputy

Solicitor General. Afternoon panel presentations on Article 66,

UCMJ, fact finding powers and opinion publication included Judges

Weston and McClelland of this Court as panel participants.

In May 1998, the judges of the Court attended The Judicial

Conference of the United States Court of Appeals for the Armed Forces

at George Washington University in Washington, D.C. This two-day

conference included presentations on a variety of topics including

direct and cross-examination of experts, law of sexual harassment in

the workplace, post-trial proceedings, trial and appellate advocacy,

and new developments in cyberspace.

The 1998 Appellate Military Judges Training Seminar was held on

two days in September 1998, at the Federal Judicial Center in

Washington, D.C. and was attended by Chief Judge Baum, Judge Kantor,

and Judge Weston. It was the sixth year for this training seminar,

created and maintained expressly for military appellate court judges

by Chief Judge Frank Nebeker of the Court of Veterans Appeals. It was

hosted this year by the Army and covered presentations on subjects

such as the art of appellate judging; appellate opinion writing;

ethics for appellate judges; and stress, collegiality and the judicial

decision making process. Chief Judge Baum chaired a panel of judges

discussing the scope of court of criminal appeals review under Article

66, UCMJ.

This past year Chief Judge Baum served another term as a member

of the Rules Advisory Committee of the U.S. Court of Appeals for the

Armed Forces working on proposed rule changes for that Court. He also

continued to play an active role in the Federal Bar Association as a

member of the Pentagon Chapter and as immediate past Chair of the

association’s Judiciary Division.

ADDITIONAL MILITARY JUSTICE STATISTICS

Appendix A contains additional basic military justice statistics

for the reporting period and reflects the increase/decrease of the

workload in various categories.

JOHN E. SHKOR

Rear Admiral, USCG

Chief Counsel, U. S. Coast Guard
Page 1 of 2

APPENDIX - U.S. COAST GUARD MILITARY JUSTICE STATISTICS

Report Period: 1 OCTOBER 1997 - 30 SEPTEMBER 1998

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE (+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 18 17 1 +66%

BCD SPECIAL 21 20 +75%

NON-BCD SPECIAL 0 0 0 UNCHANGED

SUMMARY 8 8 0 -20%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT +40%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 3

 NUMBER OF BAD-CONDUCT DISCHARGES 8

SPECIAL COURTS-MARTIAL ( SA LEVEL)

 NUMBER OF BAD-CONDUCT DISCHARGES 4

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 13

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 6

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 3

PART 4 – WORKLOAD OF THE COAST GUARD COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 14

 GENERAL COURTS-MARTIAL 7

 BCD SPECIAL COURTS-MARTIAL 7

REFERRED FOR REVIEW 19*

 GENERAL COURTS-MARTIAL 13

 BCD SPECIAL COURTS-MARTIAL 6

TOTAL CASES REVIEWED 11*

 GENERAL COURTS-MARTIAL 5

 BCD SPECIAL COURTS-MARTIAL 6

TOTAL PENDING AT CLOSE OF PERIOD 23

 GENERAL COURTS-MARTIAL 15

 BCD SPECIAL COURTS-MARTIAL 8

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

REVIEWED DURING LAST REPORTING PERIOD

58% increase in

number referred

56% decrease in

number reviewed.

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. COAST GUARD COURT OF CRIMINAL APPEALS (CCA)

NUMBER 23

PERCENTAGE 100%

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

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF (4/11) 36%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD +6%

PERCENTAGE OF TOTAL PETITIONS GRANTED (0/4)** 0%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -62%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY CCA (0/11) 0%

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

LAST REPORTING PERIOD -50%
Page 2 of 2

APPENDIX - U.S. COAST GUARD MILITARY JUSTICE STATISTICS - CONT’D

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF PERIOD 0

RECEIVED 0

DISPOSED OF 0

 GRANTED 0

 DENIED 0

 NO JURISDICTION 0

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 0

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 9

SPECIAL COURTS-MARTIAL 19

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 9

SPECIAL COURTS-MARTIAL 2

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 2

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 35,293

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 921

RATE PER 1,000 26.10

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD +8.9%

 

NOTE: A BCD Special or BCD Special Court-Martial is a court-martial authorized to impose a BCD, whether or not

 a BCD was imposed by the court-martial.

*Frazier v. McGowan, originally addressed by the CGCCA as a Petition for Extraordinary Relief (habeas corpus) and

 remains pending reconsideration at CAAF on that issue. It has also been referred for review by the CGCCA under Art.

 66, UCMJ.

** The 3 petitions granted in FY98 were for cases reviewed in FY97.