Army Pamphlet 27-173: Legal Services Trial Procedure

Army Pamphlet 27-173: Legal Services Trial Procedure. Legal Services Manual.

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Department of the Army Pamphlet 27-173
Legal Services

Trial Procedure

Headquarters Department of the Army Washington, DC 31 December 1992
UNCLASSIFIED
DODDOA-009094

SUMMARY of CHANGE

DA PAM 27-173
Trial Procedure

This pamphlet contains comments and opinions of individual legal specialists in
criminal law. Specifically, it incorporates changes in trial procedure based
upon laws, regulations, and court decisions published prior to 1 May 1992.

DODDOA-009095

Headquarters *Department of the Army Department of the Army Pamphlet 27-173Washington, DC 31 December 1992
Legal Services
Trial Procedure
Summary. This pamphlet is intended to their expiration dates unless sooner super-
By Order of the Secretary of the Army: provide legal information and reference seded or rescinded.
material, and does not purport to promul-
GORDON R. SULLIVAN gate Department of the Army policy.

Suggested Improvements. Users are
Comments and suggested legal solutions
General, United States Army invited to send comments and suggested
concerning laws, regulations, decisions, or
Chief of Staff improvements on DA Form 2028 (Recom­
other matters represent the opinions of in­
mended Changes to Publications anddividual legal specialists and are in no
Blank Forms) directly to The Judge Ad-Official: sense mandatory. Laws, regulations, and vocate General's School, Army, ATTN:decisions published prior to 1 October
JAGS—ADC, Charlottesville, VA
1990 generally have been consideredand 22903-1781.
included in the text.
MILTON H. HAMILTON
Applicability. This pamphlet applies to

Administrative Assistant to The Distribution. Distribution of this publi­
the Active Army, the Army National

Secretary of the Army
cation is made in accordance with the re­quirements on DA Form 12--09—E, blockGuard, and the U.S. Army Reserve.
Proponent and exception authority.
History. This UPDATE printing 2547, intended for command levels B and
The proponent agency of this pamphlet is
publishes a revision of this publication. C, for the Active Army, Army National
the Office of The Judge Advocate
Because the publication has been Guard, and U.S. Army Reserve.
General.
extensively revised, the changed portions Interim changes. Interim changes to
have not been highlighted. This
this pamphlet are not official unless theypublication has been reorganized to make are authenticated by the Administrativeit compatible with the Army electronic Assistant to the Secretary of the Army.
publishing database. No content has been
Users will destroy interim changes on
changed.
Contents (Listed by paragraph and page number)
Part One The Participants in Courts-Martial, page 1
Chapter 1 Introduction, page 1 General • 1-1, page 1 Format • 1-2, page 1 The rule-making power • 1-3, page 1
Chapter 2 The Convening AuthorIty/Command Influence, page 3 General • 2-1, page 3 The existence and effect of unlawful command influence • 2-2, page 4 Raising the issue of unlawful command influence • 2-3, page 10 Corrective action • 2-4, page 11
This pamphlet supersedes DA Pam 27-173, 20 April 1990.
DA PAM 27-173 • 31 December 1992

UNCLASSIFIED
DODDOA-009096
Contents-Continued
Chapter 3 The Military Judge, page 13 General • 3-1, page 13 The evolution of the military judge's role and powers • 3-2, page 13 The military judge's qualifications • 3-3, page 15 Professional standards for the military judge • 3-4, page 15
Chapter 4 The Court Members, page 20 General • 4-1, page 20 Court members' qualifications • 4-2, page 20 Court members' duties • 4-3, page 22
Chapter 5 The Defense Counsel, page 25 General • 5-1, page 25 The Trial Defense Service • 5-2, page 25 The initial detail of counsel • 5-3, page 25 The replacement of detailed counsel • 5-4, page 26 Individual military counsel • 5-5, page 27 Individual civilian counsel • 5-6, page 28 Withdrawal by detailed counsel • 5-7, page 29 The disqualification of counsel • 5-8, page 29 The right to counsel of choice • 5-9, page 30 The representation of more than one accused • 5-10, page 30 The representation of one accused • 5-11, page 32
Chapter 6 Other Participants, page 36 Members of the public • 6-1, page 36 Representatives of the media • 6-2, page 37 Witnesses • 6-3, page 37 Trial counsel • 6-4, page 37 Reperter • 6-5, page 38 Interpreter • 6-6, page 38
Part Two Jurisdiction, page 40
Chapter 7 Sources of Jurisdiction, page 40 General • _7-1, page 40 Constitutional provisions • 7-2, page 40 International law • 7-3, page 41 Exercise of military jurisdiction • 7-4, page 42 Agencies through which military jurisdiction is exercised • 7-5, page 44
Chapter 8 Nature of Court-Martial Jurisdiction, page 48 Nature of court-martial jurisdiction • 8-1, page 48 Finality of courts-martial judgments • 8-2, page 56
Chapter 9 Inception and Termination of Court-Martial Jurisdiction, page 60 Introduction • 9-1, page 60 Court-martial jurisdiction • 9-2, page 60
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Contents-Continued
When jurisdiction attaches • 9-3, page 60 Continuing jurisdiction • 9-4, page 77 When jurisdiction over the person terminates • 9-5, page 81
Chapter 10 Jurisdiction Over Civilians, page 92 Peacetime jurisdiction • 10-1, page 92 Wartime jurisdiction • 10-2, page 93 Conclusion • 10-3, page 94
Chapter 11 Jurisdiction Over the Offense, page 96 Constitutional provisions • 11-1, page 96 Historical perspective • 11-2, page 96 Solorio v. United States--military status is the key • 11-3, page 99 Conclusion • 11-4, page 101
Part Three
Pretrial Procedure, page 103
Chapter 12
Charges and Specifications, page 103
General • 12-1, page 103
The charge • 12-2, page 103
The specification • 12-3, page 103
Additional charges • 12-4, page 103
Legal sufficiency of pleadings • 12-5, page 103
Multiplicity • 12-6, page 104
Duplicity • 12-7, page 106
Joinder • 12-8, page 106
Joint offenses • 12-9, page 106
Drafting problems • 12-10, page 106
Chapter 13 Initiation and Disposition of Charges, page 109 Initiation of charges in general • 13-1, page 109 Disposition of charges in general • 13-2, page 109 Reporting an offense and initiating charges • 13-3, page 109 Factors for consideration by commanders • 13-4, page 109 The unit commander with immediate article 15 jurisdiction over the accused • 13-5, page 110 The summary court-martial convening authority • 13-6, page 111 The special court-martial convening authority • 13-7, page 112 The general court-martial convening authority • 13-8, page 113
Chapter 14 Pretrial Restraint, page 116 Pretrial restraint, in general • 14-1, page 116 Pretrial confinement • 14-2, page 118 Sentence credit • 14-3, page 122
Chapter 15
Speedy Trial, page 131
Introduction • 15-1, page 131
Articles 33 and 98, UCMJ • 15-2, page 132
The Sixth Amendment • 15-3, page 133
Article 10, UCMJ • 15-4, page 134
DA PAM 27-173 • 31 December 1992
iii

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Contents--Continued
The Burton rules • 15-5, page 135
R.C.M. 707: The 1984 Manual speedy trial standards • 15-6, page 140 Rehearings. • 15-7, page 148 The exceptional case: referral to the U.S. Attorney. • 15-8, page 148 Procedural aspects • 15-9, page 148
Chapter 16
The Article 32 Investigation/The Article 34 Pretrial Advice, page 151
Section I The Article 32 Investigation, page 151 General • 16-1, page 151 Purposes • 16-2, page 151 Participants • 16-3, page 155 Matters considered by the article 32 investigating officer. • 16-4, page 160 Procedure • 16-5, page 164 Nature of the article 32 investigation • 16-6, page 167
Section II The Article 34 Pretrial Advice, page 172 General • 16-7, page 172 Contents • 16-8, page 174 Preparation of the pretrial advice • 16-9, page 175 Treatment of defects • 16-10, page 175

Chapter 17
The Convening of the Court-Martial, page 177
General • 17-1, page 177
The convening authority • 17-2, page 177
Statutory authority • 17-3, page 179
The convening order • 17-4, page 182
Changing court members • 17-5, page 183
The procedures for changes • 17-6, page 184
_
Chapter 18 Pretrial Agreements, page 186 Pretrial agreements • 18-1, page 186 General nature of plea bargains in the military • 18-2, page 187 Terms and conditions of pretrial agreements • 18-3, page 189 Pretrial procedure for obtaining a pretrial agreement • 18-4, page 196 Withdrawal from a pretrial agreement • 18-5, page 196 Nondisclosure of terms of pretrial agreement or plea negotiations • 18-6, page 197 Judicial inquiry • 18-7, page 197

Chapter 19
Discovery, page 199
Disclosure and discovery generally • 19-1, page 199
Constitutionally required disclosure • 19-2, page 199
Ethically required disclosure • 19-3, page 201
Disclosure required by the Military Rules of Evidence • 19-4, page 201
The Rules for Courts-Martial • 19-5, page 202

Chapter 20
Depositions and Interrogatories, page 205
Generally • 20-1, page 205
iv. DA PAM 27-173 • 31 December 1992
DODDOA-009099
Contents-Continued
Procedure • 20-2, page 206
Chapter 21 Production of Witnesses and Evidence, page 208 General • 21-1, page 208 General procedures • 21-2, page 208 Experts • 21-3, page 209 Form of the R.C.M. 703 request for witnesses • 21-4, page 209 Timeliness • 21-5, page 210 Materiality • 21-6, page 211 Cumulative testimony • 21-7, page 212 Alternatives to personal attendance at trial of a witness • 21-8, page 212 Defense objections to R.C.M. 703 • 21-9, page 213 The power to obtain evidence in military custody or control • 21-10, page 215 The power to obtain evidence not in military control • 21-11, page 215
Chapter 22 Mental Capacity, page 221 General • 22-1, page 221 Substantive standards • 22-2, page 221 Procedure • 22-3, page 221
Part Four Trial Procedure, page 225
Chapter 23 Article 39(a) Sessions/Conferences, page 225 General • 23-1, page 225 Relation of the article 39(a) session to trial • 23-2, page 225 Purposes • 23-3, page 225 Necessary parties at an article 39(a) session • 23-4, page 226 Request for and notice of an article 39(a) session • 23-5, page 226 Procedures • 23-6, page 226 Vital functions of the article 39(a) session • 23-7, page 226 Typical sequence of events • 23-8, page 227 Limitation • 23-9, page 228 Conferences • 23-10, page 228
Chapter 24 The Arraignment, page 231 General • 24-1, page 231 The arraignment procedure • 24-2, page 231 The effects of the arraignment • 24-3, page 231 The effects of a defective arraignment • 24-4, page 231
Chapter 25
Motions, page 234 Introduction • 25-1, page 234 Timing of motions • 25-2, page 234 Kinds of motions • 25-3, page 235 Burden of proof • 25-4, page 236 Rulings on motions • 25-5, page 236 Reconsideration of rulings on motions • 25-6, page 236 Motions to dismiss • 25-7, page 236 Motions for appropriate relief • 25-8, page 238 Motions to suppress evidence • 25-9, page 242
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Contents--Continued
Essential findings • 25-10, page 243
Chapter 26
Voir Dire and Challenges, page 246
Introduction • 26-1, page 246
Challenge of the military judge • 26-2, page 246
Voir dire and challenge of court members • 26-3, page 247

Chapter 27
Pleas, page 252
General • 27-1, page 252
Types of pleas and their effect • 27-2, page 252
Guilty plea inquiry • 27-3, page 253
Refusal to accept plea • 27-4, page 256

Chapter 28 The Trial, page 260 General • 28-1, page 260 Accused's elections on court-martial composition • 28-2, page 260 Presence of participants • 28-3, page 260 Assembly • 28-4, page 261 The introduction and swearing of participants • 28-5, page 261 Witnesses • 28-6, page 262 Production of wimess statements • 28-7, page 263 Stipulations • 28-8, page 265 Views and inspections • 28-9, page 266 Contempt • 28-10, page 267 Mistrial • 28-11, page 267 Motions for finding of not guilty • 28-12, page 268 Effect of final determinations: res judicata • 28-13, page 269 Arguments • 28-14, page 270 Instructions • 28-15, page 274
. Chapter 29 Government Appeals,.page 282 Introduction • 29-1, page 282 Background • 29-2, page 282 Civil precedent • 29-3, page 2V Required forum • 29-4, page 283 Nature of ruling appealed under R.C.M. 908 • 29-5, page 283 Appeal prohibited • 29-6, page 284 Procedure • 29-7, page 284 Appellate proceeding • 29-8, page 285 Standard of review • 29-9, page 286
Chapter 30 Findings, page 288 General • 30-1, page 288 Matters which may be considered • 30-2, page 288 Voting procedure • 30-3, page 289 Reconsideration of findings • 30-4, page 291 Defective findings • 30-5, page 292 Impeachment of findings • 30-6, page 293
vii DA PAM 27-173* 31 December 1992

DODD0A-009101

Contents-Continued
Chapter 31 Sentencing, page 296 General • 31-1, page 296 Evidence admitted during the trial on the merits • 31-2, page 296 Providence inquiry (guilty plea case) • 31-3, page 296 Stipulation of fact (guilty plea cases) • 31-4, page 297 The case in aggravation • 31-5, page 297 The defense case in extenuation and mitigation • 31-6, page 315 The prosecution case in rebuttal • 31-7, page 318 Other factors which may be considered on • 31-8, page 319 Sentencing procedures • 31-9, page 320 Reconsideration of sentence • 31-10, page 321 Defective sentences • 31-11, page 322 Impeachment of sentence • 31-12, page 322 Permissible punishments by courts-martial • 31-13, page 322 Prior punishments • 31-14, page 325
Chapter 32 Corrections, page 327 Introduction • 32-1, page 327 United States Army Correctional Brigade • 32-2, page 327 USDB • 32-3, page 327 Clemency and parole • 32-4, page 328 Clemency and parole program authority • 32-5, page 328 Clemency eligibility and consideration • 32-6, page 329 Parole eligibility and considerations • 32-7, page 330
Part 5 Post-Trial Procedure, page 334
Chapter 33 Post-Trial Hearings, page 334 Proceedings in revision • 33-1, page 334 17tibay hearings • 33-2, page 335
R.C.M. 1102 and post-trial article 39(a) sessions • 33-3, page 335
Chapter 34 Post-Trial Actions and Review, page 338 Preparation and authentication of the record of trial • 34-1, page 338 Post-trial duties of counsel • 34-2, page 339 The staff judge advocate's post-trial recommendation • 34-3, page 341 Initial action by the convening authority • 34-4, page 342 Judge advocate legal review • 34-5, page 343
Chapter 35 Appeals, page 345 Introduction • 35-1, page 345 Initial procedures • 35-2, page 345 Appellate review • 35-3, page 346 The Army Court of Military Review • 35-4, page 348 The United States Court of Military Appeals • 35-5, page 350 Review by the United States Supreme Court • 35-6, page 351 Appellate counsel • 35-7, page 351 Petition for a new trial • 35-8, page 352
DA PAM 27-173 • 31 December 1992.
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Contents—Continued
Chapter 36 Extraordinary Writs, page 354 Authority for extraordinary writs • 36-1, page 354 Relief in aid of the court's jurisdiction • 36-2, page 355 Writs agreeable to the usages and principles of • 36-3, page 356 Use of extraordinary relief by defense counsel • 36-4, page 357 Use of extraordinary relief by the Govemment • 36-5, page 358
Chapter 37 Collateral Review of Courts-Martial, page 360 Introduction • 37-1, page 360 The Writ of Habeas Corpus • 37-2, page 360 Nature of "Restraint" required to sustain habeas corpus • 37-3, page 362 Jurisdiction to entertain the petition • 37-4, page 364 The scope of inquiry in military habeas corpus cases • 37-5, page 365 The doctrine of waiver • 37-6, page 368
Part 6 Professional Responsibility, page 373
Chapter 38 Professional Responsibility, page 373 Standards applicable to military counsel • 38-1, page 373 Professional responsibility complaints • 38-2, page 374 Judge advocates in an organizational context • 38-3, page 376 The initiation and disposition of charges • 38-4, page 378 Disclosure obligations • 38-5, page 381 The attomey-client relationship • 38-6, page 383 The duty to preserve the confidentiality of information. • 38-7, page 384 Defense counsel handling of evidence or • 38-8, page 387 The duty to competently and diligently represent • 38-9, page 388 Defense counsel control of the case • 38-10, page 390 Advocacy ethics • 38-11, page 392 Client perjury • 38-12, page 31)5 Relations with the news media • 38-13, page 398
Chapter 39 (Chapter not used.), page 401 (Title not used.) • 39-1, page 401 (Title not used.) • 39-2, page 401
Table List
Table 2-1: Commander's lawful and unlawful influences in the military justice system, page 4 Table 18-1: Title Example 1, page 188 Table 18-2: Title Example 2, page 188 Table 18-3: Title Example 3, page 189 Table 25-1: Waiver of motions generally, page 234 Table 30-1: Votes required for reconsideration of verdicts, by various size courts-martial panels, page 292
viiii DA PAM 27-173 • 31 December 1992
DODDOA-009103

Part One
The Participants in Courts-Martial
Chapter 1
Introduction
1-1. General This text is designed primarily for the lawyer participating in courts-martial. The text's scope is accordingly limited to court-martial procedural rules. There is, however, no absolute dichotomy between substantive and procedural rules in criminal trials. Consequently, although the text focuses on procedure, it nevertheless touches upon such substantive areas as evidence. The distinction between procedure and substance is somewhat artificial, but the nature of the President's power to promulgate rules for courts-martial requires that we attach considerable weight to the characteriza­tion of a rule as procedural or substantive.
1 -2. Format The text has five parts. Part one concerns the qualifications and roles of the various participants in a court-martial, such as the convening authority, the military judge, and the court members. The discussion of these subjects is intended merely as an introductory treatment; other publications analyze the participants' roles in greater detail) Parts two through four focus on court-martial trial procedures. The organization is a chronological approach to processing and adjudicating court-martial charges. Finally, part five is a detailed analysis of professional responsibility matters of interest to the military attorney.
1-3. The rule-making power

a. Source and nature. It is important to understand both the sources of procedural rules and the nature of the rule­making power. The Constitution grants Congress the power "to make Rules for the Government and Regulation of the land and naval Forces."2 In exercising this power as to courts-martial, Congress has conferred certain authority upon the President.
In article 36 of the Uniform Code of Military Justice, 3 Congress gave the President the power to prescribe procedures in courts-martial. As originally enacted in 1950, article 36 provided that:
(a) The procedure including modes of proof, in cases before courts-martial ... may be prescribed by the
President by regulations which shall, so far as he deems practicable, apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not
be contrary to or inconsistent with this Code. 4

The President initially exercised his authority under article 36 by promulgating the Manual for Courts-Martial, United States, 1951. 5 Subsequently, the President issued the Manual for Courts-Martial, United States, 1969 (revised edition)6 and most recently, the Manual for Courts-Martial, United States, 1984. 7
Courts have recognized these manuals as a valid exercise of the President's rule-making power. In one case, the United States Supreme Court declared that the Manual is the "guidebook that summarizes the rules of evidence applied by court-martial review boards." 8 In another case, the Court commented that "the Manual ... has the force of law
I For example, DA Pam 27-9, Military Judges' Benchbook (1 May 1982) (C3, 15 Feb. 1989), [hereinafter Benchbook) provides detailed guidance for the
preparation of instructions.

2 U.S. Const. art. I, § 8, G. 14.
3 Uniform Code of Military Justice art. 36, 10 U.S.C. § 836 (1982) [hereinafter UCMJ]. The Uniform Code of Military Justice will be referred to in text as
the Code or UCMJ.

4 Act of May 5, 1950, chap. 169 § 1 (art. 36), 64 Stat. 120. There is some controversy whether, in his capacity as Commander-in-Chief, the President
could have promulgated rules for courts-martial even if Congress had not delegated authority to the President.Compare Snedeker, Military Justice Under
the Uniform Code 39 (1953) with Everett, Military Justice in the Armed Forces of the United States 8 (1956). On balance, it seems probable that the

Constitution's authors intended to place this power beyond the Executive's reach. See Levy v. Resor. 37 C.M.R. 399, 403 (C.M.A. 1967); United States v.
Smith, 32 C.M.R. 105, 117 (C.M.A. 1962).
5 Exec. Order No. 10214, 3 C.F.R. 409 (1949-1953 Comp.).

6 Exec. Order No.
11,476, 34 Fed. Reg. 10,503 (1969). The President also prescribed the Manual for Courts-Martial, United States, 1969. Exec. Order No. 11,430, 33 Fed. Reg. 13,503 (1968). The enactment of the Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335 (1968), however, which made substantial changes to the military justice system, required that the new Manual be immediately revised. The Military Justice Act of 1968 and Manual for Courts-Martial, 1969 (rev. ed.) became effective 1 August 1969.
7 Exec. Order No. 12,473, 49 Fed. Reg. 17152 (1984). The Manual for Courts-Martial will be referred to in text as the Manual or MCM. When necessary to clarify the particular edition of the Manual being cited the following forms will be used: MCM, 1951; MCM, 1969 (rev. ed.); MCM, 1984. The Rules for Courts-Martial in the 1984 Manual will be cited as R.C.M.
8 United States v. Augenblick, 393 U.S. 348 (1969).
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unless it is contrary to or inconsistent with the Uniform Code... "9 United States Court of Military Appeals decisions likewise have given the Manual's provisions binding effect. The Court of Military Appeals pointed out that Congress' . delegation to the President in article 36 is "[s]imilar to its grant of authority to the Supreme Court to prescribe rules of practice and procedure in Federal civilian cases, which have the force of statutory law..." 10
During the middle 1970's, the issue arose as to whether article 36 gave the President the power to prescribe rules for pretrial and post-trial procedures as well as "trial procedures." In United States v. Ware, 11 the court noted that the issue before it did not require the court to address whether the Manual provision involved concerned a "procedure before courts-martial, to which the President's power to promulgate procedure is restricted." 12 Chief Judge Fletcher, dissent­ing in United States v. Newcomb, 13 stated that "Article 36 evidences no intention by the Congress to dilute its legislative judgment concerning pretrial procedures." 14 In response to these pronouncements, Congress amended article 36 to specifically give the President power to promulgate rules for pretrial, trial, and post-trial procedures. 15 This broad grant of authority to the President was acknowledged by the court in United States v. Matthews. 16
In determining the validity of a particular exercise of the President's rule-making power under article 36, it is necessary to distinguish between substance and procedure. Only rules which relate to "procedural" matters are within the President's authority. A rule relating to a "substantive" matter, such as the definition of a crime, is in excess of this authority. Only Congress can define crimes or establish affirmative defenses to crimes. If the President attempts to usurp Congress' power by promulgating a substantive rule, the rule may be invalid. Therefore, the mere inclusion of a rule in the Manual does not necessarily make it a valid exercise of the President's power. As the Court of Military Appeals has noted:"The inclusion [in the Manual] of any such statement of substantive law generates no validity for the same. Such is quite unlike the Executive promulgation of a mode of proof therein, pursuant to the authority conferred by Congress in the Uniform Code." 17 Of course, the Manual contains substantive rules such as the elements of offenses and the definitions of affirmative defenses. Inclusion in the Manual neither adds to nor detracts from the rule's validity. The validity of a substantive rule must be predicated on a basis other than the President's delegated power to make procedural niles. 18
b. Conflict between the Code and the Manual. In its delegation to the President, Congress provided that the rules the President makes may not be "contrary to or inconsistent with this Chapter [the Code]." 19 So long as a procedural rule prescribed by the President is "neither contrary to or inconsistent with the Code, [it] has the force of law and is of binding application in trials by courts-martial..." 20 If a Manual rule conflicts with the Code, the Code prevails. 21 The Code itself contains some procedural rules. For example, article 41 governs challenges and article 51 prescribes rules for voting. If a Manual provision were contrary to or inconsistent with a procedural rule prescribed by the Code, the Manual provision would be invalid.
Determining the existence of a conflict requires interpretation of both the Code and the Manual. It should be remembered that many provisions of both documents contain broad language, which may be susceptible to several interpretations. It will sometimes be possible to resolve a conflict by reconciling interpretations of the Code and Manual provisions. 22 Of course, the Court of Military Appeals will invalidate any portion of the Manual it interprets as inconsistent with the Code. Thus, that portion of paragraph 67f of the Manual for Courts-Martial, 1969 (rev. ed.) which required the military judge to accede to the convening authority on questions of law was declared invalid as inconsistent with the clear language of article 62(a) of the Code. 23 Where neither the Code nor the Manual has addressed a procedural question, the court will apply the Federal civilian rules unless it is incompatible with military law or the military establishment's special requirements. 24
9 Noyd v. Bond, 395 U.S. 683, 692 (1969).
10 United States v. Phare, 45 C.M.R. 18, 21 (C.M.A. 1972); Levy v. Resor, 37 C.M.R. 399, 403 (C.M.A. 1967).
11 1 M.J. 282 (C.M.A. 197).
12 Id. at 285 n.10.
13 5 M.J. 4 (C.M.A 1978).
14 Id. at 13 (Fletcher, C.., dissenting).
15 Act of Nov. 9, 1979, Pub. L. No. 96-107, Title VIII § 801(b), 93 Stat. 811 (1979).See generally S. Rep. No. 197, 96th Cong., 1st Sess. 123

(1979),reprinted in 1979 U.S. Code Cong. & Admin. News 1818, 1828.
18 16 M.J. 354, 380 (C.M.A. 1983).

17 United States v. Smith, 33 C.M.R. 3, 6-7 (C.M.A. 1963); see United States v. Johnson, 17 M.J. 251, 252 (C.M.A. 1984) (President lacks power to
create or define crimes).
18 United States v. Smith, 32 C.M.R. 105, 119 (C.M.A. 1962).
19 UCMJ art. 36.
20 United States v. Boland, 42 C.M.R. 275, 277 (C.M.A. 1970).
21 United States v. Smith, 32 C.M.R. 105 (C.M.A. 1962).
22 Whenever possible, courts attempt to harmonize seemingly conflicting provisions. Crawford, Statutory Construction § 166 (1940).
23 United States v. Ware, 1 .J. 282 (C..A. 1976).

24 In United States v. Knudson, 16 C.M.R. 161, 164 (C.M.A. 1954), the Court Of Military Appeals statedlwk) have repeatedly 'held that Federal practice
applies to courts-martial procedures if not incompatible with military law or the special requirements of the military establishment." SeeChenoweth v.
VanArsdall, 46 C.M.R. 183, 186 (C.M.A. 1973).

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Chapter 2 The Convening Authority/Command Influence
2-1. General
The convening authority, the officer empowered to initiate a court-martial, is necessarily one of the principal partici­pants in the court-martial process. While it may be true that courts-martial were once viewed as the convening authority's personal instrument for the maintenance of discipline, under the UCMJ the court-martial is now an independent court of law. As the Powell Committee on the Uniform Code of Military Justice, Good Order, and Discipline in the Army emphasized, the convening authority retains general power over the responsibility for discipline within his command but may not use the court-martial as a personal instrument for achieving discipline:
Correction and discipline are command responsibilities in the broadest sense, but some types of corrective action are so severe that under time-honored principles they are not entrusted solely to the discretion of a commander. At some point, he must bring into play judicial processes. It is his responsibility to select the cases which he thinks deserve sterner corrective action than he is paratext permitted to impose by himself. When he has done this, it is not intended that he be able to influence judicial decisions... Once a case is before a court-martial, it should be realized by all con„ erred that the sole concern is to accomplish jus..ice under the law. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline. The interests of discipline do not require that he [the commander] have any power to interfere with the independent judgment of persons who are by law responsible for judicial actions.'
The commanding officer, as convening authority, has a large number of nonjudicial disciplinary devices to address misconduct. If these devices are inadequate to deal with a certain offender, the convening authority can consider trial by court-martial. 2 In exercising this option, the convening authority can convene the court-martial but may not unlawfully influence the court's proceedings. In reaching its findings and sentence, the court must be permitted, to exercise its independent, unfettered judgment.
When Congress enacted the UCMJ, it attempted to balance military necessity and individual rights. 3 On the one hand, Congress recognized that the commander has a legitimate interest in the process of military justice, devolving from command responsibilities, including the duty to maintain good order and discipline within the command. 4 On the other hand, Congress realized that military forces have a long tradition of obedience and a strong sense of community, and that these traits pose a danger to the accused's individual rights. In balancing the interests of the military and the individual, Congress struck a sound compromise: It permitted the commanding officer to retain the role and judicial functions of convening authority but also created procedural safeguards to ensure that the court-martial would "no longer [be] subject to the direction of the commanderwhile exercising its fact finding powers."5
The UCMJ permits the convening authority to play a dominant role in the court-martial process before and after trial. Before trial, tlyt convening authority decides whether to convene a court-martial, 6 selects court members, 7 and refers the case to tria1. 5 After trial, the convening authority has broad powers of clemency. 9 Accordingly, he acts both as the court-martial creator and the first step in the process of appeal from the court-martial.
While the convening authority plays a dominant role before and after trial, the UCMJ has provisions to assure the independence of the court-martial during trial. The UCMJ provides that:
No authority convening a ... court-martial, nor any other commanding officer, may censure, reprimand or admonish the court or any member, military judge, or counsel thereof, with respect to ... any ... exercise of its or his functions ... No person subject to this [Code] ... may attempt to coerce or, by any unauthorized means, influence the action of a court-martial ... in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts." )
I Report to Hon. Wilber M. Brucker, Secretary of the Army, by the Committee on the Uniform Code of Military Justice, Good Order and Discipline in the
Army, at 11-12 (18 Jan. 1960).
2 MCM, 1984, R.C.M. 401.
3 Hansen, Judicial Functions for the Commander, 4 Mil. L Rev. 1, 19 (1968).
4 Id. at 53.
5 Id. at 50-51.
6 R.C.M. 401(c).
7 R.C.M. 503(a).

8 R.C.M. 601. During sentencing argument, the trial counsel may not direct the court members' attention to the fact that the convening authority referred
the case to trial by general court-martial rather than special or summary court to influence the court's sentence. United States v. Carpenter, 29 C.M.R.
234 (C.M.A. 1960); United States v. Lackey, 25 C.M.R. 222 (C.M.A. 1958). But see United States v. Eaves, 35 C.M.R. 176 (C.M,A. 1964).

9 R.C.M. 1107. Seetable 2-1 for a summary of the commander's lawful controls and problem areas in the area of command control and the military
justice system.

10 Article 37 (emphasis added).See also United States v. White, 50 C.M.R. 77 (N.C.M.R. 1975) (Navy Court of Military Review interpreted the prohibitions
in Article 37 of the UCMJ as not preventing the multiple roles of the convening authority before and after trial—not a deprivation of due process).

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While the convening authority may convene a trial by court-martial, he may not direct the trial's outcome. When the convening authority improperly attempts to affect the trial's outcome, "unlawful command influence" exists. In each case involving unlawful command influence by the convening authority, there are two critical questions:
(1) Did the convening authority's conduct constitute unlawful command influence? and (2) What effect did this conduct have upon the trial's outcome? In answering these questions, the courts consider several factors, including: (1) the nature of the act or statement; 11 (2) the proximity in time of the act or statement to the trial; 12 (3) the rank and position of the person acting or making the statement; 13 (4) the specificity of the act's or statement's reference to the tria1; 14 and (5) the extent to which the act or statement was addressed to personnel participating in the trial."
Table 2-1 Commander's lawful and unlawful influences in the military justice system

Process Action Lawful Influence Unlawful Influence

Pretrial Power to gatherfacts. Pretrial punishment. Commander's preliminary inquiry. Ordering a disposition. Law enforcement agencies. Accusers taking further action. Art. 32 pretrial investigation. Impinging upon a subordinate's exercise of discretion. Power to affect a disposition. Categoric exclusion of potential court members. Nonpunitive options. Preferral of charges. Forward with recommendations. Power to select court members. Select or remove court members to obtain a particular
result. Referral to courts-martial.
'Overrule a subordinate's disposition.
Select best qualified personnel.
Replace panels.

Trial Provide facility and personnel support. Attempting to influence actions of a court-martial in ar-riving at findings or a sentence. Grant immunity to witnesses. Intimidating or discouraging witnesses from testifying. Usurping GCMCA/DOJ authority. Post-trial Take action in the case. Inflexible attitude regarding clemency.
Seek reconsideration; appeal; rehearing. Censuring, reprimanding, admonishing, or giving un-favorable efficiency ratings for performance as court personnel.
Directly question or seek justification of a judge's deci­sion or sentence.
2-2. The existence and effect of unlawful command influence
An act of unlawful command influence may affect any participant in the court-martial process.
a. Court members. Court members determine the trial's outcome. They may acquit, or find guilt, and adjudge a sentence. Court members, therefore, are a potential target for unlawful command influence. An appellate court may find unlawful command influence if the commander's attempt to influence court members is blatant or gross.I 6
11 United States v. Kitchens, 31 C.M.R. 175 (C.M.A. 1961); United States v. Zagar, 18 C.M.R. 34 (C.M.A. 1955); United States v. Littrice, 13 C.M.R. 43
(C.M.A. 1953).
12 United States v. Brice, 19 M.J. 170 (C.M.A. 1985).Compare United States v. Wright, 37 C.M.R. 374 (C.M.A. 1967) with United States v. Davis, 31

C.M.R. 162 (C.M.A : 1961) and United States v. Dazine, 30 C.M.R. 350 (C.M.A. 1961).
13 United States v. Rinehart, 24 C.M.R. 212 (C.M.A. 1957); United States v. Estrada, 23 C.M.R. 99 (C.M.A. 1957); United States v. Treakle, 18 M.J. 646

(A.C.M.R. 1984) (en banc); United States v. Cruz, 25 M.J. 326 (C.M.A. 1987).
14 United States v. Rosser, 6 M.J. 267 (C.M.A. 1979); United States v. Cole, 38 C.M.R. 94 (C.M.A. 1967); United States v. Olson, 29 C.M.R. 102 (C.M.A.

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Appellate courts also seek to protect the accused against more subtle forms of unlawful command influence. In United States v. McLaughlin, I7 the convening authority appointed a large ,panel of court members and, subsequently by memorandum, designated the members who were to attend particular court sessions. Even though the convening authority probably did not intend to affect the trial's outcome, the Court of Military Appeals held that the convening authority's action was unlawful. The court emphasized that the convening authority's action was"the kind of command control over the day-to-day functioning of a particular court-martial that we cannot sanction."I 8 In itself, the use of the large panel did not affect the trial's outcome, but this procedure could have facilitated improper command influence. The court decided to deprive the convening authority of even the opportunity to exercise unlawful influence.
Three of the subtler forms of unlawful command influence merit discussion. The first form is the disciplinary or moral policy statement. The commander obviously has a legitimate interest in preventing misconduct within the command. A commander may properly issue a policy statement which generally discusses the necessity for and the means of preventing misconduct, and such a policy statement may not result in unlawful command influence.I 9 If the statement tends to intimidate court members or suggests a certain "proper" disposition of offenders, however, the statement can amount to unlawful command influence." Even when the commander does not address the statement to court members, a staff officer's, subordinate commander's, or trial counsel's actions might convert the statement into a form of unlawful command influence. In one case the trial counsel read a Secretary of the Navy policy directive concerning drug abuse to the court members during the sentencing argument. Tie Court of Military Appeals held that the sentence was tainted by unlawful command influence 2 1
The second form is the pretrial orientation lecture. Convening authorities or their staff judge advocates sometimes have lectured prospective court members on their duties. Such lectures are a dangerous practice. Such a lecture necessarily is close in time to the trial and is specifically addressed to court members. Ambiguous statements during the lectures can easily be interpreted as a desire for a specific outcome in a particular trial or class of cases. 22 One former judge of the Court of Military Appeals expressed the opinion that orientation lectures were unlawful command influence per se. 23 One jurisdiction distributed a small booklet to every member selected for court-martial duty. This "Handbook for Members of Court-Martial Panel" contained general guidance on the duties of members and the procedures of courts-martial. It was determined on appeal that such a handbook was "an outside source of information on the law which cannot be countenanced." 24 The UCMJ and Manual contemplate that the military judge (or president of a special court-martial when there is no judge) will perform the function of orienting the court members by instructing them on their findings and sentence. 25 To eliminate this form of unlawful command influence, the Army by regulation now generally prohibits pretrial orientation lectures. 26
A third possible form is a convening authority's rating of court members. In the armed forces, commanders are required periodically to rate the efficiency or effectiveness of their immediate subordinates. The convening authority is sometimes a rater on the court member's efficiency rating. A soldier's opportunities for promotion and future assignments depend, in large part, upon efficiency ratings. The fact that the convening authority may be in a position to prepare a particular court member's efficiency report "gives the commanding officer ample opportunity to manifest his displeasure at the manner in which those under his control have handled a case." 27 To eliminate this potential source of unlawful command influence, in 1968 Congress added the following language to article 37 of the Code:
In the preparation of an ... efficiency report or any other report or document used in whole or in part for the
purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in
determining the assignment or transfer of a member of the armed forces or in determining whether a member of
the armed forces should be retained on active duty, no person ... may ... consider or evaluate the performance of
1960); United States v. Ferguson, 17 C.M.R. 68 (C.M.A. 1954).
15 United States v. Levite. 25 M.J. 334 (C.M.A. 1987); United States v. Wright, 37 C.M.R. 374 (C.M.A. 1967); United States v. Kitchens, 31 C.M.R. 175

(C.M.A. 1961); United States v. Hawthorne, 22 C.M.R. 83 (C.M.A. 1956).
16
E.g., United States v. Cole, 38 C.M.R. 94 (C.M.A. 1967); United States v. Olives, 26 C.M.R. 686 (A.B.R. 1958). 17 39 C.M.R. 61 (C.M.A. 1968). 16 Id. at 64.
16 United States v. Fernandez, 24 M.J. 77 (C.M.A. 1987); United States v. Brice, 19 M.J. 170 (C.M.A. 1984); United States v. Hurt, 27 C.M.R. 3 (C.M.A.

1958); United States v. Carter, 25 C.M.R. 370 (C.M.A. 1958). See also United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970).
20 United States v. Karlson, 16 M.J. 469 (C.M.A. 1983); United States v. Howard, 48 C.M.R. 157 (C.M.A. 1974); United States v. Albert, 16 C.M.A. 111,
36 C.M.R. 267 (1966); United States v. Leggio, 30 C.M.R. 8 (C.M.A. 1960); United States v. Olson, 29 C.M.R. 102 (C.M.A. 1960); United States v.
Estrada, 23 C.M.R. 99 (C.M.A. 1957); United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); United States v. Toon, 48 C.M.R. 139 (A.C.M.R. 1973).

21 United States v. Allen, 43 C.M.R. 157 (C.M.A. 1971). See also United States v. Brice, 19 M.J. 170 (C.M.A. 1984); United States v. Estrada, 23 C.M.R.
99 (C.M.A. 1957); cf. United States v. Robertson, 17 M.J. 846 (N.M.C.M.R. 1984).

22 United States v. Kitts, 23 M.J. 105 (C.M.A. 1986).
23 United States v. Wright, 37 C.M.R. 374 (C.M.A. 1967) (concurring opinion); United States v. Danzine, 30 C.M.R. 350 (C.M.A. 1961) (dissenting
opinion). Judge Ferguson consistently expressed the opinion that any command pretrial instructions violate the UCMJ. Article 37(a), as amended in 1968,
exempts "general instructional or informational courses in military justice'from the prohibition.

24 United States v. Hollcraft, 17 M.J. 1111, 1113 (A.C.M.R. 1984).
25 Compare R.C.M. 104wiffi MCM, 1969, para. 38 as MCM, 1951, para. 38.
26 AR 27-10, para. 5-10c.

27 Keeffe and Moskin, Codified Military Injustice, 35 Cornell L.Q. 151, 158 (1949).

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duty of any such member of a court-martial... 28
When evidence is presented sufficient to render reasonable a conclusion that improper command influence existed, the Government must then prove, by clear and positive evidence, that command influence did not occur. 29 If the Government fails, the military judge must find that improper command influence exists and take whatever measures are necessary and appropriate to ensure, beyond reasonable doubt, that the findings and sentence are not adversely affected. If there is no way to avoid the adverse affect beyond reasonable doubt, the case should be dismissed."
b. The military judge. Article 37 of the UCMJ31 attempts to insulate court members from unlawful command influence. Similarly, it attempts to shield other participants in the court-martial process from improper influence. The other participants have a duty to the accused to perform their roles in accordance with the Code's explicit provisions. In some cases involving attempts to improperly influence participants other than court members, it is unnecessary to analyze the case solely in terms of unlawful command influence. Instead, appellate courts will focus on whether the improper act denied the accused a right explicitly guaranteed under the UCMJ.
The Manual contains a detailed discussion of the essential role the military judge plays in the court-martia1. 32 The military judge's role is as sensitive and as vital as that of the court members. The military judge must be shielded from all the forms of unlawful command influence against which court members are insulated. Moreover, Congress intends that the military judge's independence approximate that of a Federal civilian judge. 33 Congress envisions the ge.ieral court-martial judge as a full-time, independent judicial officer. 34 For that reason, appellate courts frown upon any attempt to compromise the military judge's independence. 35
The military judge's independence has statutory, Manual, and regulatory protection. Congress incorporated statutory protections in articles 26 and 37 of the UCMJ. 36 Article 26(c) provides that neither the convening authority nor any member of the staff may prepare or review a general court-martial judge's efficiency report. 37 Article 37(a) provides that the convening authority may not censure, reprimand, or admonish the military judge for the judge's acts during a court-martial."
When the President promulgated the Manual, he extended the protection of article 26(c), UCMJ, to special court­martial judges.39 On its face, the Manual provision applies only to the convening authority; the provision does not expressly prohibit the preparation or review of an efficiency report by a member of the convening authority's staff. 40
The Secretary of the Army has filled this gap by providing an Army regulation° prescribing that members of the United States Army Judiciary determine who rates special court-martial judges assigned to the Judiciary.° The convening authority or a member of the staff may prepare an efficiency report for only part-time, special court-martial judges not assigned to the Judiciary but such efficiency reports cannot evaluate judicial performance 43
The creation of the United States Army Judiciary gave the military judge additional protection. 44 All full-time special court-martial judges, general court-martial judges, and appellate judges are assigned to the United States Army Judiciary. The Judiciary is largely self-supervised and administratively removed from The Judge Advocate General's direct control. The chief trial judge exercises direct administrative supervision over all judges assigned to the United States Army Judiciary. 45 Raters on efficiency reports of judges assigned to the Judiciary are other members of the Judiciary. Chief circuit military judges determine the rating schemes for military judges within the circuit. 46
The statutory and administrative protections for the military judge eliminate most of the opportunities for improper influence. Of course, it is still possible for the convening authority to attempt to communicate an improper statement to
28 UCMJ art. 37.
28 United States v. Rosser, 6 M.J. 267, 272 (C.M.A. 1979); United States v. Jones, 30 M.J. 849 (N.M.C.M.R. 1990); United States v. Jameson, 33 M.J.
669 (N.M.C.M.R. 1991).
38 United States v. Jameson, 33 M.J. 669, 672 (N.M.C.M.R. 1991), citing United States v. Thomas, 22 M.J. 388 (C.M.A. 1986) and United States v.

Jones, 30 M.X. 849 (N.M.C.M.R. 1990).
31 UCMJ art. 37.
32 See, e.g., R.C.M. 801.

33 Snyder, Evolution of the Military 'Judge,' 14 S.C.L.O. 381 (1962); Miller, Who Made the Law Officer aTederal Judge?, 4 Mil. L. Rev. 39 (1959).
34 UCMJ art. 26.
35 United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976).
36 UCMJ arts. 26, 37.
37 UCMJ art. 26.
38 UCMJ art. 37.
38 R.C.M.104(b)(2)(B)•

Id.
41 AR 27-10.
42 Id. at para. 8-5e.
43 UCMJ art. 37(b).
" See letter, Adjutant General of the Army to commanders exercising general court-martial jurisdiction, AGAO-CC 210.31 (27 Oct. 1958) JAG, HODA,
TAGO, 29 October 1968, subject: Law Officer Program. Para. 1, General Order 37, HODA (13 Nov. 1958), created the Field Judiciary, and para. 1,

General Order 5, HODA (7 Mar. 1961) made the Judiciary a Class II activity. Section V, General Order 56, HODA (26 Sept. 1962), redesignated the
activity as the U.S. Army Judiciary.
48 AR 27-10, para. 8-1d.
46 Id. at para. 8-5e.

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the judge. In United States v. Hughes,'" the convening authority made an obviously improper statement at an officers' call before the accused's trial: "This time it looks like we will get him [the accused]." The defense contended that this remark influenced the military judge. The Army Court of Review found that "[t]here is no evidence that this judge even knew of the remarks, let alone was influenced by them since he was not a member of the command."48 Where the military judge's special statutory and administrative protections are inapplicable, however, the court will use the same safeguards the court employs to protect court members. 49
c. The defense counsel. The defense counsel's zeal for the client's defense is as essential an element of a fair trial as the impartiality of the military judge and court members. Appellate courts condemn any attempt to discourage the defense counsel's zeal as readily and emphatically as they do attempts to improperly influence the court members.
The defense counsel does have many of the same special statutory and regulatory protections that the military judge enjoys. Article 37(b), UCMJ, provides that the convening authority and his staff members may not give the defense counsel a lower efficiency rating because of "the zeal with which [he] ... represented any accused before a court­martial."50 Another protection is that detailed military counsel is ordinarily a member of the United States Army Trial Defense Service (USATDS) of the Judge Advocate General's Corps and, hence, removed from the convening authority's chain of command. 5 I
d.
Witnesses. It is unlawful for the convening authority to intimidate, tamper with, or improperly influence a witness.52 Exercising unlawful command influence over a witness is reversible error." While the convening authority may not unlawfully influence a witness before trial, the convening authority may have lawful dealings with the witness. In particular, the convening authority may enter into an agreement to grant the witness immunity in exchange for the witness' testimony. 54 The practice of granting of immunity is well established in both military and civilian criminal practice. The grant of immunity is lawful, and the witness is competent so long as the witness promises only to testify truthfully.55 If the witness believes, even mistakenly, that he or she is required to give only specified testimony, however, the witness is incompetent. 56 The convening authority may be bound by promises that amount to a grant of immunity even though a proper grant of immunity was neither granted nor intended. 57

e.
The trial counsel. The Court of Military Appeals has pointed out that:

Much less aloofness necessarily marks the relationship of the trial counsel to the convening authority. Unlike the court member and the law officer, the trial counsel is at least in some degree a partisan, and a functionary charged with the duty of insuring that all competent evidence against an accused person is presented—once the convening authority has decided that trial is warranted. Since the responsibility for supervising the orderly and effective administration of justice rests with the convening authority, he is thus—in many cases—confronted with a choice between the specter of command control, on the one hand, and the stricture of inadequate presentation [by the trial counsel], on the other. It is difficult for us to comprehend how he may safely navigate this legal-administrative Scylla and Charybdis unless he is accorded some measure of freedom in advising and instructing prosecution personne1. 58
Although in some respects the trial counsel is the convening authority's functionary, the counsel is ordinarily an attorney. As a professional, trial counsel should ordinarily be permitted latitude for the exercise of professional judgment. However, supervision by the convening authority and the staff judge advocate can properly limit the trial counsel's freedom in choosing trial strategies and tactics.
In dictum, the Court of Military Appeals has stated that the convening authority may not reduce the trial counsel to "the likeness of an automaton." 59 It may be difficult to understand why the court would object to limitation of the trial counsel's discretion by the convening authority. Perhaps the reason lies in the UCMJ and cases which state that the trial counsel at a general court-martial must be an attorney." The punitive powers of the general court-martial are so
47 43 C.M.R. 750 (A.C.M.R. 1971).
49 Id. at 752.
49 In United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976), the court stated that 'official inquiries outside the adversary process which question or seek
justification for a judge's decision -are barred unless made by an independent judicial commission. Id. at 43.
5° UCMJ art. 37.
51 AR 27-10, chap. 6.

52
UCMJ art. 37.
•93 United States v. Levite, 25 M.J. 334 (C.M.A. 1987); United States v. Saunders, 19 M.J. 763 (A.C.M.R. 1984); United States v. Yslava, 18 M.J. 670
(A.C.M.R.
1984); United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984) (en banc); United States v. Tucker, 17 M.J. 519 (A.F.C.M.R. 1983); United States

v.
Rodriguez, 16 M.J. 740 (A.F.C.M.R. 1983); United States v. Charles. 15 M.J. 509 (A.F.C.M.R. 1982); United States v. Estes, 28 C.M.R. 501 (A.B.R.
1959); but see United States v. Thomas, 22 M.J. 383 (C.M.A. 1986) (the court cited several ways that the Government might meet its burden of showing
the accused was not denied favorable evidence). See also United States v. Lowery, 18 M.J. 695 (A.F.C.M.R. 1984).
94 R.C.M. 704.

55 United States v. Thibeault, 43 C.M.R. 704 (A.C.M.R. 1971).
56 United States v. Conway, 42 C.M.R. 291 (C.M.. 1970).
97 Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982).
55 United States v. Haimson, 17 C.M.R. 208, 217-18 (C.M.A. 1954).
99 Id. at 218.
6° UCMJ art. 27; United States v. Wright, 2 M.J. 9 (C.M.A. 1976).

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great that the court is convinced that both counsel ought to be attorneys, bound by the Rules of Professional Conduct for Lawyers6I to refrain from unconscionable tactics. By requiring that the trial counsel be an attorney, the court undoubtedly believed that it was helping to ensure the integrity of the judicial process. When the convening authority deprives the trial counsel of all discretion, the convening authority in effect undermines the purpose of requiring that trial counsel be an attorney; if the convening authority dictates all decisions to the trial counsel, the nonattorney convening authority becomes the trial counsel in fact.
It is more likely that the staff judge advocate might attempt to limit the trial counsel's freedom. As the staff judge advocate is an attorney, it cannot readily be argued that this limitation of the trial counsel's discretion would violate the rule requiring that counsel be attorneys. Moreover, the staff judge advocate has two administrative duties which necessitate that the trial counsel's discretion be limited to some degree. First, there is the duty of ensuring that the convening authority's cases are prosecuted fairly but vigorously. The second duty is supervising personnel assigned to that office, including trial counsel. In one case, the Court of Military Appeals permitted the acting staff judge advocate to issue an extremely detailed set of suggestions" to the trial counse1. 62 Nevertheless, in the same opinion, the court suggested that the staff judge advocate may not "relegate him [the trial counsel) to the role of parrot for the staff judge advocate."63 In another case, in which the trial counsel obeyed the staff judge advocate's order to move for continu­ance during which the staff judge advocate intimidated a witness, the court concluded that the staff judge advocate's action was illegal and held that the staff judge advocate was disqualified from conducting the post-trial review.
To date no military appellate court has reversed a conviction solely on the ground that the convening authority or staff judge advocate interfered with the trial counsel's discretion. Except where the convening authority undermines the purpose of the rule requiring counsel to be attorneys, it is difficult to conceive of a case in which the accused would be entitled to a reversal solely because of interference with the trial counsel's discretion. If the interference results in a less effective presentation of the Government's case, the accused can hardly object. On the other hand, if the interference results in a more effective presentation of the Government's case, the accused cannot seriously argue that he or she has a right to be ineptly prosecuted. An appellate court probably would not reverse a conviction on the ground of interference with the trial counsel's discretion unless some other ground for objection causes or results from the interference, for example, where the staff judge advocate requires the trial counsel to move for continuance for an unlawful purpose, or where a tactic the convening authority requires the trial counsel to use is unconscionable.
f The convening authority. Under the UCMJ, there are three levels of convening authority: general, special, and summary. 65 The summary and special court-martial convening authorities are usually immediately subordinate to the general court-martial convening authority, and the general court-martial convening authority also ordinarily has superior convening authorities. Article 37(a) of the Code provides that a convening authority's superiors may not improperly interfere with the convening authority's performance of judicial acts. 66 It would be in violation of article 37 for a superior convening authority to dictate the disposition of a case or a recommendation of a subordinate commander or convening authority. 67
Article 37 of the UCMJ does not prohibit general instructions or informational courses on military justice, if such courses are designed "solely for the purpose of instructing members of the command in the substantive and procedural aspects of courts-martial."68 However, by regulation, only the military judge may orient and instruct court members on their immediate responsibilities in court-martial proceedings. 69 The commander has the right to issue policy statements to improve discipline and order and to prevent crimes provided these statements do not interfere with the discretion of court members or of inferior commanders. 70 The commander may remark on the seriousness of specific crimes provided such remarks are unbiased and do not direct or suggest certain actions by subordinate commanders 71 The key in all cases is that each soldier charged with a crime is entitled to have guilt or innocence, and, if convicted, a sentence determined by members of the court-martial based solely upon the evidence presented during trial—free from all
61 DA Pam 27-26, Rules of Professional Conduct for Lawyers (31 Dec. 1987).
62
United States v. Mallicote, 32 C.M.R. 374 (C.M.A. 1962) (without disqualifying him from further action in the case). 63 Id. at 378. 64 United States v. Kennedy, 24 C.M.R. 61 (C.M.. 1957). ss UCMJ arts. 22-24. " UCMJ art. 37. 67 Id.; R.C.M. 104(a)2). " UCMJ art. 37. 69 AR 27-10, para. 5-10c.
7° United States v. Betts, 30 C.M.R. 214 (C.M.A. 1961). Because the convening authority did not feel himself bound by the Department of the Navy instruction as to the disposition of cases involving homosexuals, there was held to be no unlawful command influence. In the advice the SJA had advised the convening authority that he was not bound by the Secretary of the Navy's instructions as to the elimination of homosexuals. United States v. Estrada, 23 C.M.R. 99,102 (C.M.A. 1957): We do not condemn general service policies and pronouncements. It is a commander's prerogative to determine such policies and to promulgate them as he sees fit. However, it is clearly not within a commander's prerogative to inject his policies into judicial proceedings." See also United States v. Brice, 19 M.J. 170 (C.M.A. 1985) and United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970). The court held that a policy directive dealing with gunshot incidents in Vietnam was within the proper exercise of the convening authority's responsibility when read as a whole. Seealso United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984) (en banc). United States v. Schomaker, 17 M.J. 1122 (N.M.C.M.R. 1984); United States v. Robertson, 17 M.J. 8 46 (N.M.C.M.R. 1984).
71 United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983); United States v. Rembert, 47 C.M.R. 755 (A.C.M.R. 1973).
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external influence.. Soldiers are also entitled to have a review by a neutral and impartial convening authority. 72
g. Consequences of unlawful directives or statements. If a statement exceeds proper instructions or general policy statements, it may:
(1)
Unlawfully influence court members.

(2)
Usurp the function of subordinate commanders. Each level of command must have the opportunity use its independent discretion in recommending appropriate disposition of offenses. 73 Despite the recommendation or at­tempted disposition by a subordinate convening authority, a superior authority may direct that charges be forwarded to the superior authority for further consideration, to include referra1. 74 Also, a commander may not be ordered to prefer charges if he or she does not believe the truth thereof. 75

(3)
Make the commander issuing the statement an accuser. 76

(4)
Deprive the convicted individual of an impartial individualized review. 77 The statement of a convening authority may indicate bias or prejudice, thereby disqualifying him or her from taking action on the case.

(5)
Deprive the accused of character witnesses both on the merits and on extenuation and mitigation. 78

Although the Manual furnishes some guidelines in this area, there are certain controls that cannot be exercised by the commander. These are:
(1)
The commander may not issue orders or re' ilations that directly or indirectly suggest that certain categories of minor offenses should be disposed of under article 15. 79

(2)
The commander may not direct predetermined kinds or amounts of punishments°

(3)
The commander may not direct a specific type of court-martial as to a particular offender, 81 or as to a specific class of offenders. 82

(4)
The commander under certain circumstances may not withdraw a case that has already been referred to trial by an inferior court. 83

(5)
The commander may not criticize the sentences adjudged in previous cases. 84

(6)
The commander may not have a fixed policy against ameliorating any type of punishment irrespective of the facts and circumstances. 85

(7)
The commander may not have a predisposition to approve a sentence. 86

Although there are specific actions that the commander cannot take, substantial control lawfully may be used in exercising court-martial jurisdiction. 87
72 United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); United States v. Toon, 48 C.M.R. 139 (A.C.M.R. 1973).
73 United States v. Hawthorne, 22 C.M.R. 83 (C.M.A. 1956); United States v. Hinton, 2 M.J. 564 (A.C.M.R. 1976); United States v. Sims, 22 C.M.R. 591

(A.B.R. 1956).
74 R.C.M. 601(f); United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983).
75 R.C.M. 307(a) discussion.
76 UCMJ art. 1(9); United States v. Corcoran, 17 M.J. 137 (C.M.A. 1984); United States v. Crossley, 10 M.J. 376 (C.M.A. 1980).
77 United States v. Howard, 48 C.M.R. 939 (C.M.. 1974).
78 United States v. Levite, 25 M.J. 334 (C.M.A. 1987); United States v. Saunders, 19 M.J. 763 (A.C.M.R. 1984); United States v. Treakle, 18 M.J. 646

(A.C.M.R. 1984) (en banc); United States v. Yslava, 18 M.J. 670 (A.C.M.R. 1984) (en banc).
79 AR 27-10, para. 3-4b(1).
8° Id. at para. 3-4b(2).

81 United States v. Charleston, 26 C.M.R. 630 (A.B.R. 1958). A company commander who had recommended an Article 15 withdrew his recommendation
and recommended trial by general court-martial after the battalion executive officer told him the case could not be handled by anything less than a
general court-martial.

82 United States v. Sims, 22 C.M.R. 591 (A.B.R. 1956) (the commanding general indicated his desire that all accused with two prior AWOL convictions be tried by GCM); United States v. Hawthorne, 22 C.M.R. 83 (C.M.A. 1956) (the CG directed trial by general court-martial of all regular Army soldiers with two prior admissible convictions); United States v. Daley, 47 C.M.R. 365 (A.C.M.R. 1973) (the convening authority initiated a policy of trying all cases involving absence without leave from overseas replacement units by general court-martial; the court stated that "while a superior commander is not completely deprived of his right to control his subordinates and their disciplinary problems, inferior commanders must be allowed to make individualized
recommendations." Id. at 367).
83 Withdrawal after trial has begun or withdrawal for an improper reason may preclude a later trial for the same offenses on double jeopardy grounds.
R.C.M. 604; United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983).
84 UCMJ art. 37; United States v. Uttrice, 13 C.M.R. 43 (C.M.A. 1953) (at a pretrial conference an acting squadron commander told the court members that they should not usurp the prerogatives of the convening authority and from his own experience he found that the general courts-martial were thoroughly reviewed by the superior convening authority; the court indicated that this may have tended to coerce or confuse the court as to what their own responsibilities were as to findings or sentencing; in the same case, the court found it was an unlawful command influence where at the pretrial conference the members were told that if they performed their duties as court members in an outstanding manner this would be reflected in their CSR's;of particular importance in the case was the criticism by the commander of the inadequacy of sentences imposed by prior courts-martial); United States v. Hunter, 13 C.M.R. 53 (C.M.A. 1953) (it was unlawful command influence for the convening authority at a pretrial conference to discuss the prior derelictions of the accused with at least three court members and to inform them that a previous court-martial had imposed too light a sentence). 85 United States v. Leggio, 30 C.M.R. 8 (C.M.A. 1960).
86 United States v. Howard, 48 C.M.R. 139 (C.M.A. 1974); United States v. Wise, 20 C.M.R. 188 (C.M.A. 1955); United States v. Laurie. 20 C.M.R. 194
(C.M.A. 1955); United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); United States v. Toon, 48 C.M.R. 139 (A.C.M.R. 1974).
See also United States v.
Fernandez, 24 M.J. 77 (C.M.A. 1987). 87 See table 2-1.
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9

DODD0A-009112

(1)
The commander can withhold article 15 authority as to specific offenders or offenses."

(2)
The commander may withhold court-martial jurisdiction of certain commanders by local regulations which state

who will be the summary and special court-martial convening authority. 89 The convening authority may also take the following actions:
(1)
Prefer charges personally."

(2)
Order the reinstatement of charges for which an inferior commander had improperly given an article 15. 91

h.
Appellate agencies. While the convening authority exercises some appellate authority in the post-trial action, the appellate courts created in the UCMJ are the United States Courts of Military Review and the United States Court of Military Appeals.92 With the advice and consent of Congress, the President appoints the members of the Court of Military Appeals.93 The Judge Advocates General appoint the members of the Courts of Military Review. 94

The appointing authorities may influence the outcome of cases generally by appointing or removing judges on the basis of the judges' policy views. Just as the President selects Supreme Court appointees partly on the basis of their policy views, neither the President nor The Judge Advocate General would be guilty of unlawful command influence if he selected an appointee on the basis, in part, of the appointee's policy views. In United States v. Robertson, 95 it appeared that an appointee had been added to the then Navy Board of Review "because of his known views on a key issue" in that case. 96 The accused alleged that as the appointee's views affected -the case's outcome, The Judge Advocate General of the Navy was guilty of unlawful command influence. The Court of Military Appeals rejected the accused's contention; the court remarked that the record was "completely devoid of anything that suggests or smacks of command influence."97 In principle, if The Judge Advocate General can appoint on the basis of the appointee's policy views, he should also be able to remove a judge from the court on the same ground. The President may not remove Court of Military Appeals judges in this fashion because, during their 15-year terms, "Judges of the United States Court of Military Appeals may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, or for mental or physical disability, but for no other cause."98
An attempt by the President or The Judge Advocate General to influence one of their appointees during the judge's term would be an entirely different matter. An attempt to limit the judge's discretion or direct the judge's conduct would undoubtedly constitute unlawful influence.
2-3. Raising the issue of unlawful command influence
If the defense counsel believes that unlawful command influence will probably affect the trial's outcome, the issue may be raised in several ways. In a particular case, counsel might use one or more methods of raising the issue.
The defense counsel or the accused could file charges against the convening authority under article 98 of the Code." Article 98 provides that any person who knowingly and intentionally violates a procedural rule prescribed by. the UCMJ "shall be punished as a court-martial may direct.'" 100 An attempt to exercise unlawful command influence is a court-martial offense. The UCMJ draftsmen evidently believed that article 98 would be the primary mechanism for enforcing article 37. 101 Their belief proved to be erroneous; charges citing a violation of article 98 are rare.
Second, the defense counsel can make a motion for appropriate relief at the trial's article 39(a) session. 102 For example, in a case of unlawful command influence affecting court members, the defense counsel should conduct voir dire as a predicate for the motion. During the voir dire, counsel should attempt to elicit answers, showing that the court members know of the unlawful command influence and that it has affected their attitude toward the accused. The defense counsel should ensure that the record reflects the factual basis for the claim of unlawful command influence.'"
Third, the defense counsel can raise the issue on appeal. In the past, when the issue arose for the first time on
88 AR 27-10, paras. 3-4c, 3-7c.
R.C.M. 306(a). "A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally." 90 R.C.M. 601(c). The referral to special or general court-martial and review of such case must be transferred to another convening authority or the commander can direct that a subordinate make a preliminary inquiry and prefer appropriate charges if warranted. R.C.M. 307(a) discussion. MCM, 1984, Part V, para. 1 e; United States v. Wharton, 33 C.M.R. 729 (A.F.B.R. 1963) (The accused's squadron commander gave the accused an
Article 15 for involuntary manslaughter. The superior commander ordered the Article 15 set aside. Intervening commanders and the Article 32 investigat­ing officer recommended trial by special court-martial. The superior commander directed trial by general court-martial).
92 UCMJ arts. 66. 67. The Military Justice Act of 1983 no permits appeal to the United States Supreme Court.
99 UCMJ. art. 67.
94 UCMJ art. 66.
95 38 C.M.R. 402 (C.M.A. 1968).
" Id. 404.

97
Id.
98 UCMJ art. 67(a)(2) (emphasis added).
" UCMJ art. 98.
100 1d.

101 See H.R. Rep. No. 491 at 7-8.
102

See infra chap. 23. The motion could be for change of venue, new court members, new pretrial proceedings, etc.103 United States v. Alexander, 19 M.J. 614 (A.C.M.R. 1984). The defense must be given an opportunity to present evidence on the issue.
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DODDOA-009113

appeal, the appellate courts directed both parties to submit affidavits. 1°4 However, the Court of Military Appeals concluded that this method was"unsatisfactory." 1°5- Accordingly, intinited States v. Dubay, 1 the Court of Military
"
Appeals established the following procedure:
In each case, the record will be remanded to a convening authority other than the one who appointed the court­martial concerned and one who is at a higher echelon of command. That convening authority will refer the record to a general court-martial for another trial. Upon convening the court, the law officer will order an out-of-court hearing, in which he will hear the respective contentions of the parties on the question, permit the presentation of witnesses and evidence in support thereof, and enter findings of fact and conclusions of law based thereon. If he determines the proceedings by which the accused was originally tried were infected with command control, he will set aside the findings or sentence, or both, as the case may require, and proceed with the necessary rehearing. If he determines that command control did not in fact exist, he will return the record to the convening authority, who will review the findings and take action thereon... The convening authority will forward the record, together with his action thereon, to The Judge Advocate General for review by a board of review [Court of Military Review], 107
2-4. Corrective action
If unlawful command influence is discovered before trial, the best remedy is a full, complete, and effective retraction of the acts or statements by the convening authority or offending party. 1°8 If unlawful command influence is found at trial, the remedy depends upon the pervasiveness of the improper influence. If the improper influence has spread generally throughout the command, the judge may grant a change of venue or a continuance until the influence subsides, or style a remedy to fit the particular circumstances. If the influence has not spread extensively, the judge can permit the defense counsel to remove by challenge any court members affected by the unlawful command influence. 109
If unlawful command influence is found during the appeal to have impacted a case, the appellate court may correct the findings or sentence or return the case to the service's Judge Advocate General for a rehearing. 110
104 United States v. Dubay, 37 C.M.R. 411 (C.M.A. 1967).
106 Id. 413.
106 37 C.M.R. 411 C.M.A. 1967).

107
Id. 108 See United States v. Howard, 48 C.M.R. 939 (C.M.A. 1974); United States v. Kitchens,. 31 C.M.R. 175 (C.M.A. 1961); United States v. Treekle, 18
M.J. 646 (A.C.M.R. 1984) (en banc). These cases also show that retractions are not always effective and may In some cases aggravate the issue. 109 United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986); United States v. Sherman, 21 M.J. 787 (A.C.M.R. 1986); United States v. Giarrantano, 20 M.J. 533 (A.C.M.R. 1983); United States v. Stokes, 19 M.J. 781 (A.C.M.R. 1984); United States v. Southers, 18 M.J. 795 (A.C.M.R. 1984).
110 United States v. Layne, 25 M.J. 334 (C.M.A. 1987).
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DODDOA-009114
Chapter 3 The Military Judge
3-1. General
The military judge is a central participant in the court-martial. From the outset of the trial to its conclusion, the military judge plays a decisive role. When the accused moves for relief from the court, the military judge rules on the motion. When the trial and defense counsel offer evidence, the military judge determines the evidence's admissibility. The judge instructs the court members before they deliberate on findings and sentence. In short, the military judge is the individual most responsible for the fair and orderly conduct of court-martial proceedings in accordance with law and ensuring justice in the military judicial system.'
3-2. The evolution of the military judge's role and powers
Military judges did not always possess the powers they now have. These powers gradually accumulated since 1920. Prior to that time, under the Articles of War, the judge possessed few powers; in fact, there was no designated "judge." In 1920 Congress enacted a series of statutes which slowly increased the military judge's powers.
a.. The Army Reorganization Act of 1920. 2 The Army Reorganization Act of 1920 amended the Articles of War of 1916. As amended, article 8 required that a general court-martial convening authority detail a law member to the court. 3 If a judge advocate was available, article 8 required that the convening authority detail the judge advocate as the law member. If a judge advocate was "not available for that purpose," the convening authority was to detail a specially qualified officer of another branch as law member. The courts granted the convening authority great latitude in determining whether a judge advocate was available. 4
The law member was a voting member of the courts. 5 The law member's vote was equal to that of other members, and the law member participated fully in all closed, deliberative sessions.° The law member's legal powers were generally only advisory. He or she ruled initially on all interlocutory questions except challenges, but other court members could object to and overrule the determination by vote.? The law member ruled finally on the admissibility of evidence,8 but the statute defined the term "admissibility" very narrowly. 9
b. The Elston Act of 1948. The Elston Act 10 further amended the Articles of War. The Act required that the law member be an attorney, certified as qualified by The Judge Advocate General." In the law member's absence, a general court-martial could neither hear evidence nor vote on findings or sentence.t 2
The law member still participated in the court's closed sessions. 13 With three exceptions, however, the law member's rulings on interlocutory questions became final." The three exceptions were challenges, motions for a finding of not guilty, and questions concerning the accused's sanity.°
c. The Uniform Code of Military Justice of 1950. The UCMJ redesignated the law member as the law officer. 16 The law officer was removed as a voting member. of the court." The law officer could no longer participate in the court's closed sessions, except to assist the court members to place their findings in proper form." The UCMJ gave the law officer the additional duty of instructing the court members on the elements of the offense. 19
The Department of the Army took additional steps to improve the law officer's status. First, the Department of the Army established the Law Officer Program in 1958. 20 Under the program, law officers were required to be qualified
R.C.M. 801. See United States v. Graves, 50 C.M.R. 393, 396 (C.M.A. 1975): *The trial judge is more than a mere referee, and as such, he is required to assure that the accused receives a fair trial." 2 Act of June 4, 1920, chap. 227, 41 Stat. 759, 787-812 (1920). The statute is also known as the National Defense Act of 1920.
3 41 Stat. at 788.
4 Hiatt v. Brown, 339 U.S. 103 (1950) (the court sustained the convening authority's determination that a judge advocate was unavailable for detail as law
officer even though the convening authority appointed a judge advocate as assistant prosecutor).

5 41 Stat. at 793, note 2; MCM, 1928. paras. 388. 40; MCM, 1921, para. 89a. 6 Id.
7 MCM, 1928, paras. 40, 51.
8 MCM, 1928, paras. 40, 51; MCM, 1921, para. 89a.
9 41 Stat. at 793, note 2; MCM, 1928, para. 51ct, MCM, 1921, para. 89a(4).
10 Title II, Selective Service Act of 1948, Pub. L. No. 80-759, 62 Stat. 604, 627-44 (1948).
11 62 Stat. at 629, note 10; MCM, 1949, para. 4e.
12 62 Stat. at 629, note 10.
13 MCM, 1949, para. 388.
14 62 Stat. note 10, at 631-32; MCM, 1949, pares. 51a, 51d, 58f.
15 MCM, 1949, paras. 51a, 51d, 58f.

UCMJ art. 26.
17 Id
18 Id.
19 Id. at arts. 26, 39, 51.

20 Letter, Adjutant General of the Army to commanders exercising general court-martial jurisdiction, AGAO-CC 210.31 (29 Oct. 1958); JAG, HODA,
TAGO, 27 Oct. 1958, subject: Law Officer Program. Para. 1, General Order 37, HODA, dated 13 Nov. 1958, created the Field Judiciary. Para. 1, General
Order 5, HODA, dated 7 Mar. 1961. Section V, General Order 56, HODA dated 26 Sept. 1962, redesignated the activity as the U.S. Army Judiciary, a

Class II activity of The Judge Advocate General, •
DA PAM 27-173 • 31 December 1992.
13

DODD0A-009115

judge advocates, normally on a 3-year tour of duty. The law officers became members of the Field Judiciary under The Judge Advocate General's direct control. In turn, the Judiciary assigned its members to duty stations within judicial circuits.21 Although the law officer might be assigned to a convening authority's station, the law officer was not a member of the convening authority's command; and neither the convening authority nor the staff judge advocate supervised the law officer's performance of judicial duties.
Second, The Judge Advocate General redesignated the Field Judiciary as the United States Army Judiciary and
reorganized the Judiciary as a separate Class II activity. 22 The reorganization removed the law officers from the direct
control of even The Judge Advocate General. The Judiciary was largely self-supervised. 23

d. The Military Justice Act of 1968. The Military Justice Act of 196824 amended the UCMJ, redesignating the law
officer as a military judge.25 The Act prohibited the judge from participating in the court members' closed sessions. 26
The Act granted the judge additional powers while in open session; any judicial rulings on questions of law, including
interlocutory questions and motions for a finding of not guilty, became final. 27

As a result of the Secretary of the Army's implementation of the Act, the Army now has full-time military judges. Their status is governed by statute. 28 Their efficiency ratings are prepared and reviewed within the Judiciary to help insulate the judges from command control. •
The Act greatly increased the military judge's powers by permitting general or special court-martial trial of noncapital cases by judge alone. 29 If the accused requests trial by judge alone and the judge grants the request, the court members are excused, and the military judge assumes all the court members' powers to make findings and adjudge sentence. Chapter 28 discusses the procedure for trial by judge alone.
e. The military judge's present status. The UCMJ manifests Congress' intention to make the military judge as nearly like a Federal civilian judge "as it was possible under the circumstances." 30 The Military Justice Act of 1983 and the 1984 Manual further reduce the differences between military judges and their civilian counterparts. The Manual contains a list of the military judge's principal powers: presiding over the court-martial's open sessions; taking action to ensure that the court's proceedings are conducted in a dignified manner; ruling on interlocutory questions; recessing and adjourning the court; instructing the court -members; calling article 39(a) sessions; holding the arraignment; receiving pleas; setting the time for assembly and the uniform; assisting the court in open session to put findings in proper form; and both making the findings and adjudging the sentence where the trial is by judge alone. 31
The Court of Military Appeals has also sought to effectuate Congress' intention. The court has announced its goal "to assimilate the status of the [military judge], wherever possible, to that of a civilian judge of the Federal system." 32
The President and the Secretary of the Army have empowered military judges to issue search authorizations. 33 Army Regulation 27-10 provides that military judges and military magistrates may issue search, seizure or apprehension authorizations if the affidavits or testimony presented establish probable cause. 34
The Court of Military Appeals has encouraged trial judges to issue orders to effectuate their findings. 35 While these cases indicate that the military judge must be involved in the pretrial confinement process, 36 the Court of Military Appeals has indicated that the military should follow the civilian approach 37 in having a neutral and detached magistrate decide if an accused could and should be detained. 38 By regulation, the Army has adopted such a system to review pretrial confinement. 39 A series of recent decisions has expanded the post-trial powers of the military judge to include conducting post-trial sessions to consider the legal sufficiency of evidence° and newly discovered evidence 4 1
21 'Standard Operating Procedure," memorandum of Field Judiciary Division, Office of The Judge Advocate General (1 Jan 1959); see also Meagher &Mummey, Judges in Uniform: An Independent Judiciary for the Army, 44 J. Am. Jud. Soc'y 46 (1960); Wiener, The Army's Field Judiciary System: ANotable Advance, 46 A.B.A.J. 1178 (1960).
22 "The U.S. Army Judiciary," JAGO Mem. No. 10-4 (27 Nov. 1962).
23 Id.
24 Pub. L. No. 90-632, 82 Stat. 1335 (1968). See Ervin, The Military Justice Act of 1968, 45 Mil. L. Rev. 77 (1969).

25
UCMJ art. 26.
26 Id.
27 UCMJ art. 51.
28 UCMJ art. 26. See also United States v. Moorehead, 44 C.M.R. 4 (C.M.A. 1971) (the military judge of a Coast Guard general court-martial did not have "primary duty" as required by article 26(c), where the Coast Guard arrangement was one of random or one-time use of a military judge in general courts­martial).
29 UCMJ art. 16.
3° Hearings before the House Armed Services Committee on H.R. 2498, 81st Cong., 1st Sess., 607 (1949); United States v. Renton, 25 C.M.R. 201
(C.M.A. 1958).
31 R.C.M. 801.
32 United States v. Biesak, 14 C.M.R. 132, 140 (C.M.A. 1954).
33 Mil. R. Evid. 315(d)(2); AR 2-10, chap. 9.
34 AR 27-10, chap. 9.

38 See, e.g., Phi tippy v. McLucas, 50 C.M.R. 915 (1975); Milanes-Canamero v. Richardson, 50 C.M.R. 916 (1975); Porter v. Richardson, 50 C.M.R. 910
(1975).
36 See Bouler v. Wood, 50 C.M.R. 854 (C.M.A. 1975).
37 Gerstein v. Pugh, 40 U.S. 103 (1975).
38 Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976).
38 AR 27-10, chap. 9. See also R.C.M. 305.
40 United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).
41 United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).

14. DA PAM 27-173 • 31 December 1992
DODDOA-009116
A Federal civilian judge ordinarily may exercise appropriate judicial authority at any time, but a military judge may
not exercise such judicial authority until detailed to a court-martia14 2 Military judges also lack the authority to suspend
sentences 43 Finally, the military judge lacks one of the Federal civilian judge's most important guarantees of
independence, tenure. 44 The Judge Advocate General may summarily revoke the certification of a military judge. 45

While the Military Justice Act of 1968 granted military judges many functions and powers more similar to those of
Federal district judges,46 there are still important differences between military judges and Federal civilian judges.

3-3. The military judge's qualifications
The UCMJ requires that the military judge possess certain military and legal qualifications. The only military status requirement is that the judge be a commissioned officer on active duty. 47 The judge need not be in the same armed force as the accused. 48 The statutory requirements are that the military judge be (1) a member of the bar of a Federal court or the highest court of a State, and (2) certified as qualified to perform judicial duties by the Judge Advocate General.° A clear distinction must be made between statutory disqualifications and mere ineligibility. 50 If, in violation of article 26(d), the military judge previously acted as accuser, prosecution witness, investigating officer, or counsel in a case, the military judge is ineligible to participate in the trial 5 1 The judge's ineligibility does not deprive the court of jurisdiction, but 'may necessitate a rehearing. An ineligible judge should excuse himself or herself from the tria1; 52 but the accused may expressly waive the military judge's ineligibility. 53
What is the effect of a failure to detail a qualified military judge to a court-martial? Every general court-martial must have a qualified military judge or there is jurisdictional error. 54 If a qualified military judge is not detailed to a special court-martial, the special court-martial may not adjudge a bad conduct discharge. 55
3-4. Professional standards for the military judge
The Code of Judicial Conduct and the Rules of Professional Conduct for Lawyers are directly applicable to military judges.56 In addition, all of the ABA Standards for Criminal Justice, to include the Special Functions of the Trial Judge, apply to military judges unless clearly inconsistent with the UCMJ, MCM, or department regulations. 57
Most of the ethical and professional problems the military judge encounters fall into three broad areas: regulating the conduct of the trial; relationships with parties; and the maintenance of judicial independence.
a. Regulating the conduct of the trial. The Manual generally empowers the military judge to preside over and control the proceedings. 58 In exercising the power to regulate the trial's conduct, the military judge frequently encounters four problems. First, the military judge must not exercise the power to question witnesses so as to create the appearance of bias against the accused. 59 Even when sitting with a court and without authority to make findings or adjudge a sentence, a judge could improperly display bias which might unfairly prejudice the court members against the accused:
It is a matter of common knowledge that jurors hang tenaciously upon remarks made by the court during the
progress of the trial, and if, perchance, they are enabled to discover the views of the court regarding the effect of a
witness' testimony or the merits of the case, they almost invariably follow them. 60

42 R.C.M. 503(b), 803.
43 United States v. Occhi, 2 M.J. 60 (C.M.A. 1976).
" See, e.g., In re Taylor, 31 C.M.R. 13 (C.M.A. 1961) (Judge Advocate General may decertify a military judge as an administrative matter); see also The

Military Justice Act of 1983 Advisory Commission Report, Dec. 1984; Fidel!, Judicial Tenure Under the Uniform Code of Military Justice, 31 Fed. B. News
& J. 327 (1984).
45 In re Taylor, 31 C.M.R. 13 (C.M.A. 1961).
" S. Rep. No. 1601, 90th Cong., 2d Sess. 3 (1969).
47 UCMJ art. 26(b).
45 R.C.M. 503(b)(3).
45 UCMJ art. 26(b).

5° R.C.M. 502(c); R.C.M. 503 analysis.
51 United States v. Cardwell, 46 C.M.R. 1301 (A.C.M.R. 1973) (a trail judge should recuse himself if he acted on matters before him as magistrate and
becomes prosecution witness); United States v. Watson, 47 C.M.R. 990 (A.C.M.R. 1973) (opinion formed in related case my disqualify judge); United
States v. Law, 28 C.M.R. 139 (C.M.A. 1959).

53 United States v. Renton, 25 C.M.R. 201 (C.M.A. 1958).
53 United States v. Griffin, 8 M.J. 66 (C.M.A. 1979): United States v. Airhart, 48 C.M.R. 685 (C.M.A. 1974) (military judge had authenticated prosecution

evidence); United States v. Law, 28 C.M.R. 139 (C.M.A. 1959).
54 UCMJ art. 26.
55 UCMJ art. 19; AR 27-10, para. 8-6b(3)(c) (a military judge not assigned to the U.S. Army Trial Judiciary may not preside over a BCD Special Court-

Martial).
56 AR 27-10, pare 5-8; DA Pam 27-26.
97 AR 27-10, para. 5-8.
55 R.C.M. 801.
59 See United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986); United States v. Thomas, 18 M.J. 545 (A.C.M.R. 1984); United States v. Shackleford, 2

M.J. 17 (C.M.A. 1976); United States v. Clower, 48 C.M.R. 307 (C.M.A. 1974). 6° State v. Philpot, 97 Iowa 365, 369, 66 N.W. 730, 732 (1896).
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The judge must strive to maintain an impartial and objective stance. °
When an appellate court analyzes the propriety of the military judge's examination of a witness, the court will consider the following factors, inter alia: (1) the number of questions; (2) the questions' phrasing; (3) the evident purpose of the questions; and (4) the witness' identity. 62 The fact that the judge's question was more likely to have
been asked by the prosecution than by the defense is insufficient to show that the judge displayed bias. 63 As long as the judge does not display favoritism, 64 the judge may ask the witness to develop the facts for the court members' better understanding. 65 The judge should be especially careful in questioning the accused. 66 The military judge may not abandon his or her impartial role and become more prosecutor than judge. 67
Second, the military judge must prevent the court members from asking biased or otherwise improper questions. When counsel and the military judge have completed questioning a witness, the court members have an opportunity to ask questions. 68 All questions by court members must be in writing. 69 The military judge may prevent the court members from asking repetitious questions or questions calling for inadmissible responses." The military judge should also prevent the court members from asking questions which reflect bias against the accused. 71 Like the military judge, the court members may not overtly side with the prosecution. 72 A court member may not indicate an opinion of the accused's guilt or innocence until the member has received all the relevant material, evidentiary and instructional. 73 As a precaution, the military judge shall require that the court member submit the vestion in writing to the judge for approval. 74
Third, the military judge should resist assisting counsel in the presentation of their cases. 75 The court-martial is an adversary proceeding, and opposing counsel should ordinarily be permitted to execute their own trial strategies. 76 The commentary to Standard 6-1.1(a) states that "the judge should avoid trying the case for the lawyers." 77 The ABA Standards authorize the judge to intervene in the conduct of a case. 78 The judge may give isolated, occasional assistance to counsel who are uncertain of the correct procedures. 79 When the military judge frequently intervenes to assist counsel, however, there may be an appearance of partiality." As a general rule, the military judge should intervene only as necessary.
Fourth, just as the military judge controls court members' conduct, the military judge must regulate counsel's conduct during the course of the trial. The military appellate courts have held that the military judge must prevent counsel from engaging in bitter, personal exchanges before the court members. 81 Standard 6-3.2 expressly requires that the judge prohibit colloquy between counsel in the jury's presence. 82 If any counsel engages in unprofessional conduct
61 United States v. Hardy, 30 M.J. 757 (A.C.M.R. 1990).
62 See United States v. Posey, 44 C.M.R. 242 (C.M.A. 1972) (military judge, sitting alone, subjected the accused to extensive questioning on insignificant

details during the presentencing proceedings); United States v. Flagg, 29 C.M.R. 452 (C.M.A. 1960) (court members asked accused numerous and
detailed questions).
63 United States v. Lindsay, 30 C.M.R. 235 (C.M.A. 1961) (the military judge can ask questions to clear up uncertainties and develop facts for better

understanding by the court).

64 United States v. Carper, 45 C.M.R. 809 (N.C.M.R. 1972) (improper for military judge to praise prosecution witness for his testimony; however
nonprejudicial when military judge sitting alone); United States v. Coleman, 42 C.M.R. 769 (A.C.M.R. 1970).
65 United States v. Snipes, 19 M.J. 913 (A.C.M.R. 1985); United States v. Coleman, 42 C.M.R. 769 (A.C.M.R. 1970) (inappropriate questioning of witness

by military judge on matters outside direct examination and improperly soliciting opinion as to appropriate sentence).

66 United States v. Posey, 44 C.M.R. 242 (C.M.A. 1972); United States v. Bouie. 18 M.J. 529 (A.F.C.M.R. 1984) (military judge asked accused 370
questions; test is not the number of questions asked but whether accused was prejudiced).
67 United States v. Shackelford, 2 M.J. 17 (C.M.A. 1976); United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986) (military judge overstepped bounds of

impartiality in cross-examining accused to obtain admission of knife where trial counsel had been unsuccessful in obtaining admission).
68 Mil. R. Evid. 614(b).
69 Id.

70 United States v. Jackson, 14 C.M.R. 64 (C.M.. 1954).
71 United States v. Smith, 20 C.M.R. 237 (C.M.A. 1955) (accused testified on the merits that he was not at the scene of the offense; accused was twice
recalled to the stand by the president of the court who told him the court did not believe his testimony; the conduct of the president and the tacit approval
of the court members indicated that the court-martial members deserted their proper role and joined the ranks of partisan advocates).

72 United States v. Lamella, 7 M.J. 277 (C.M.A. 1979).
73 Benchbook, para. 2-24.
74 Mil. R. Evid. 614(b) (shall be in writing); United States v. Marshall, 30 C.M.R. 117 (C.M.A. 1961) (members of court conducted oral partisan

examination of accused); but see United States v. Miller, 14 M.J. 924 (A.F.C.M.R. 1982) (oral questions by court members is within the military judge's

discretion). The Miller holding is not a recommended practice.
75 United States v. Taylor, 47 C.M.R. 445 (A.C.M.R. 1973) (military judge abandoned impartial role and assumed role of advocate in order to aid an
inexperienced prosecutor). See also United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990); contra, United States v. Zaccheus, 31 M.J. 766 (A.C.M.R.
1990) (judge assisting trial counsel in laying foundation for evidence did not become a partisan advocate).

76 United States v. Jordan, 45 C.M.R. 719 (A.C.M.R. 1972) (impartiality was lost when the military judge called and impartially questioned a witness, not
desired by either counsel); United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991) (impartiality was lost when the military judge, relying on his own
expertise, permitted the trial counsel to re-open the prosecution case after closing arguments on sentencing).

77 Commentary. ABA Standards Relating To The Special Functions Of The Trial Judge, § 6-1.1(a) (1980).
78 Commentary, ABA Standards Relating To The Special Functions Of The Trial Judge, § 6-1.1 (1980).
78 United States v. Payne, 12 C.M.A. 455, 31 C.M.R. 41 (1961).
80 United States v. Thomas, 18 M.J. 545 (A.C.M.R. 1984).
81 United States v. Lewis, 16 C.M.A. 145, 36 C.M.R. 301 (1966); United States v. Cannon, 26 C.M.R. 593 (A.B.R. 1958).

82
ABA Standards Relating To The Special Functions Of The Trial Judge, § 6-3.2 ( 1 980).
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in the court, the military judge should correct the counsel. Standard 6-3.5 provides that the judge should correct the abuse and, if necessary, discipline the attorney. 83
b. The military judge's relations with the parties. The commentary on Canon 2 of the Code of Judicial Conduct states that "a judge must avoid all impropriety and appearance of impropriety." Legal institutions are public institutions which will not function effectively unless the public has complete confidence in judges' personal and professional integrity. The military judge must be extraordinarily conscientious in complying with Canon 2. 84 The military community is a much tighter and more closely knit community than the civilian community. The nature of this community makes the military courts' emphasis upon the avoidance of impropriety an absolute imperative.
A judge can easily create the appearance of impropriety by engaging in ex parte communications with one of the parties. Canon 3 of the Code of Judicial Conduct provides that the judge generally should"neither initiate nor consider ex parte ... communications concerning a pending or impending proceeding." 85 Standard 6-2.1's condemnation of ex parte communications is equally firm. "The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with the judge ex parte, except after adequate notice to all other parties and when authorized by law or in accordance with approved practice." 86 The Canon and Standard are designed to safeguard the accused's rights to confrontation and a trial on the record. If the military judge accepts ex pane communications from the trial counsel, the accused cannot be certain that guilt will be determined solely on the basis of the evidence in the record or that the accused has had an opportunity to confront all the witnesses. A viola ion of the prohibition on ex parte communications can result in a denial of the accused's constitutional rights. It is well-settled that the judge may not discuss the case's merits with the trial counsel in the defense counsel's absence. 87 The Court of Military Appeals treats meetings between the military judge and the staff judge advocate or his or her representative in a similar fashion. 88 The military judge may, in certain cases, review the pretrial file which the staff judge advocate's office prepares. 89 The Court of Military Appeals has suggested, however, that if the judge is sitting without court members, any right to examine the pretrial file is more limited than when sitting with court members." As a practical matter, the military judge's reading of the pretrial investigation or the file of the staff judge advocate raises needless issues in most cases. Though not ex parte, such communication may raise an appearance of impropriety. The practice is best avoided.
The judge's social relations can also create an appearance of impropriety. Social or business relations or friendships must not create the suspicion that they constitute an element influencing judicial conduct. 9I Canon 2 of the Code and Standard 6- 1.5 expressly prohibit the judge only from permitting his social relations to influence his or her judicial conduct; 92 but the commentary on Standard 6-1.5 makes it clear that when read in the light of Canon 2, Standard 6-1.5 requires that the judge avoid creating any "appearance that suggests a special relationship." 93 The Canon and Standard pose peculiar problems for the military judge. Over the course of a military career, the military judge will become closely acquainted with many of the staff judge advocates, trial counsel, and defense counsel with whom the military judge will have official dealings. Many military installations have very limited housing facilities, and the military judge might discover that a close neighbor is the staff judge advocate with whom the judge must work. It is true that the military judge need not live "in ... seclusioni' 94 but the military judge should be circumspect in social relations with representatives of the convening authority.
c. The military judge's independence. Canon 1 of the Code of Judicial Conduct enjoins the judge to preserve "the independence of the judiciary... " 95 Canon 3 adds that the judge"should be unswayed by partisan interests, public
83 Id. at § 6-3.5.
84 See, e.g., United States v. Goodman, 3 M.J. 1 (C.M.A. 1977) (the military judge provided pretrial advice to the criminal investigator); United States v.
Reeves, 12 M.J. 763 (A.C.M.R. 1981) (the military judge who conducted the pretrial confinement hearing of this accused was not automatically an
investigating officer); United States v. Tomcheck, 4 M.J. 66 (C.M.A. 1977) (ethical violation for military judge to testify as an adverse character witness
against an accused); United States v. Conley, 4 M.J. 327 (C.M.A. 1978) (military judge became a witness for the prosecution when he used his expertise
as a handwriting examiner to compare questioned documents with accused's handwriting); United States v. Berman, 28 M.J. 615 (A.F.C.M.R. 1989)

(military judge's sexual relationship with trial counsel disqualified judge as to all cases in which trial counsel appeared).
88 ABA Code 01 Judicial Conduct Canon 3 (1972).
86 ABA Standards Relating To The Special Functions Of The Trial Judge No. 6-2.1 (1980).
87 United States v. Gardner. 46 C.M.R. 1025 (A.C.M.R. 1972) (military judge received ex pane from the trial counsel a list of legal authorities and military

judge spoke with the trial counsel about the expected testimony of a witness); United States v. Copening, 34 M.J. 28 (C.M.A. 1992) (military judge

discussed ex parte alternative theories of admissibility for suppressed evidence which became relevant in a motion for reconsideration).
88 In United States v. Priest, 42 C.M.R. 48 (C.M.A. 1970), and United States v. Powell, 42 C.M.R. 237 (C.M.A. 1970), the Court of Military Appeals held
that the military judge's unrecorded conferences with the staff judge advocate or his representative constituted error.

88 United States v. Mitchell, 36 C.M.R. 14 (C.M.A. 1965) (reference to pretrial files will frequently assist trial judges in uncovering all legal issues in a
particular case).
8° United States v. Carroll, 43 C.M.R. 152 (C.M.A. 1971) (reading by military judge of pretrial advice and article 32 proceedings without knowledge and
consent of accused was error, but such error did not necessarily constitute reversible error. The issue was whether, because of the error, the accused
received a more severe sentence than might otherwise have been imposed). See also United States v. Paulin, 6 M.J. 38 (C.M.A. 1978).

81 ABA Code Of Judicial Conduct Cannon 2 and 5 (1972); ABA Standards Relating To The Special Functions Of The Trial Judge No. 6-1.5 (1980); see
United States v. Sherrod, 26 M.J. 30 (C.M.A. 1988) and United States v. Berman, 28 M.J. 615 (A.F.C.M.R. 1989).
82 ABA Code Of Judicial Conduct Canon 2 and 5 (1972); ABA Standards Relating To The Special Functions Of The Trial Judge No. 6-1.5 (1980).
83 Commentary, ABA Standards Relating To The Special Functions Of The Trial Judge, No. 6-1.5 (1980).
" ABA Canons Of Judicial Ethics No. 33 (1937).
" ABA Code Of Judicial Conduct Canon 1 (1972).

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17

DODDOA-009119

clamor, or fear of criticism."96 The military judge's observance of these canons is especially important in light of the
charges of unlawful command influence which are occasionally leveled against the court-martial system. The Congress, the President, The Judge Advocate General, and the Court of Military Appeals have all sought to insulate the military judge from such influence. To a large extent, their efforts have been successful. The charge is an insistent one, however, and the military judge can counter the charge only by scrupulously observing Canons 1 and 3. The military judge must never give the public reason to believe that his or her independence has been compromised.
d. Conclusion. It is the military judge's responsibility to ensure that the trial is conducted in a fair and orderly manner.97 The purpose of the Code of Judicial Conduct and the Standards is to ensure that the judge fulfills that responsibility. The Code's canons and the Standards are ethical and professional rules that guarantee the proceeding's fundamental fairness. Whenever the military judge violates these rules, there is a strong likelihood that the military judge has committed error, which the appellate courts will test for prejudice. 98
96 Id.at Canon 3.
97 R.C.M. 801(a) discussion. The military judge also must be careful not to exceed 'the permissible scope of public discussion of an on-going trial' United
States v. Garwood, 20 M.J. 148, 151 (C.M.A. 1985).
98 See United States v. Wiggens, 25 M.J. 587 (A.C.M.R. 1987); United States v. Sherrod, 26 M.J. 30 (C.M.A. 1988).

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Chapter 4
The Court Members
4-1. General
A court-martial adjudicates the accused's guilt or innocence. The convening authority selects the court members who will make the adjudication, the military judge guides and instructs them, and counsel attempt to persuade them. Unless
the military judge has granted the accused's request for trial by judge alone, the court members have the ultimate responsibility of fulfilling the trial's purpose.
4-2. Court members' qualifications
a. Court members in general. There are three principal sources which establish court members' qualifications and disqualifications: the UCMJ, the Manual for Courts-Martial, and service regulations.
(1) Qualifications. Article 25 of the UCMJ establishes the statutory qualifications for court members.' First, the court member must be on active duty with the armed forces? The court member need not be a member of the same command3 or the same armed force 4 as the accused. If the court member is not a member of the convening authority's command, the member's own commander must consent to such service on the court. 5 If the court member and the accused are not members of the same armed force, the member is still qualified; but"[w]hen a court-martial composed of members of different armed forces is selected, at least a majority of the members should be of the same armed force as the accused unless exigent circumstances make it impractical to do so without manifest injury to the service." 6
Because civilians lack a military status, they ordinarily are not qualified to serve as court members. Even where the accused is a civilian, the UCMJ does not authorize civilians to serve as court members. 7 The only exceptionto the general rule is that members of two agencies, the National Oceanic and Atmospheric Administration and the Public Health Service, are qualified to serve as court members while they are assigned to and serving with an armed force. 8
Under such circumstances, these two agencies qualify as uniformed services.
Second, the court member must be in a qualified personnel category. There are three categories: commissioned officers, warrant officers, and enlisted soldiers. 9 Commissioned officers qualify as court members for the trial of an accused in any category. 1° Warrant officers qualify as court members for the trial of other warrant officers and enlisted soldiers." A warrant officer is not qualified to serve as a court member in the trial of a commissioned officer. 12 An enlisted soldier is not qualified to serve as a court member in the trial of a commissioned or warrant officer. 13 An enlisted soldier may serve as a court member in the trial of another enlisted soldier if the accused specifically requests enlisted soldiers orally on the record, or in writing; the personal request is a jurisdictional requirement." The enlisted court member must not be a member of the accused's unit. 15 The exclusion of members of the accused's own unit raises three questions.
The first question is: How is a unit defined? Article 25(c)(2) of the UCMJ states that a unit is "any regularly
organized body as defined by the Secretary concerned, but in no case may it be a body larger than a company,
squadron, ship's crew, or body corresponding to one of them." 16 Irrespective of size, the body constitutes a single unit
if the body meets the statutory definition of the term. 17 In a case in which the company's assigned strength was almost
1,000 men, a Board of Review stated that:
[A]s the size of Army units is no longer regulated by statute, we do not attribute to the Congress an intention to
1 UCMJ art. 25.
2 Id.; R.C.M. 502(a)(1); R.C.M. 103 discussion states that:

"Active duty means full-time duty in the active military service of the United States. It includes full-time training duty, annual training duty, and attendance while in the active military service, at a school designated a service school by law or by the Secretary of the military department concerned.
3 R.C.M. 503(a)(3).
4 Id.
5 Id. Such concurrence may be oral and need not be shown by the record of trial.' Id. discussion.
6 Id. discussion.
UCMJ art. 25.
8 R.C.M. 502(a) discussion.

9 Id.
10 R.C.M. 502(a)(1)(A).
R.C.M. 502(a)(1)(B).
12 Id
13 R.C.M. 502(a)(1)(C).
14 Id.See, e.g. United States v. Brookins, 33 M.J. 793 (A.C.M.R. 1991).
15 UCMJ art. 25.

is Id.
17 Id., United States v. Wilson, 21 M.J. 193 (C.M.A. 1986); United States v. Scott. 25 C.M.R. 636 (A.B.R. 1958).
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apply the terms "unit"or "company" to military bodies of any particular strength or composition. ... [C]ompanies
as now organized may vary widely in their authorized strengths, and their actual strength can fluctuate from less
than that considered normal for a squad or platoon to more than battalion size.I 8
Thus, all the enlisted soldiers of the accused's company were considered members of the unit and disqualified from serving as members of the accused's court-martial.
The second question is: For purposes of article 25, who is considered a member of the unit? Is the membership restricted to persons formally assigned to the unit, or does membership include persons attached to or on temporary duty, with the unit? Before the UCMJ's enactment, the Articles of War referred to enlisted soldiers "assigned" to the accused's unit. 19 Construing this language, one Board of Review held that only persons "formally" assigned to the same unit as the accused were within the proscription 2 0 The UCMJ, however, uses broader language; it refers to "a member of the same unit."21 Congress' use of broader language in the UCMJ suggests that Congress intended to extend the disqualification to enlisted soldiers attached to the accused's unit. 22 Although ineligible, participation by such an enlisted court member is a nonjurisdictional defect that can be waived by failure to object. 23
The third question is: What is the critical time for determining whether the accused and the enlisted court member were members of the same unit? Is the critical time (1) the date of the offense's commission, (2) the date of trial, or (3) both dates? One Board of Review stated that "[q]u:te clearly, the Article (25) provides at least that membership in the same unit at the time of trial is not permitted." 24 A purposive construction of the statute would be that both times are critical. If a -person is in the same unit as the accused at the time of the offense or the trial, that person is likely to be exposed to prejudicial pretrial information. The statute should be construed liberally to effectuate its purpose; and so construed, the statute bars enlisted soldiers who were members of the accused's unit at the time of the offense or at the time of trial.
While there are requirements as to active duty and personnel category, there are no absolute requirements as to the member's rank. An accused should not be tried by a court with any members below the accused in grade or rank. 28 If a member who is junior in rank to the accused does sit, the error is not jurisdictiona12 6
(2)
Disqualifications. Article 25(d)(2) provides that accusers, prosecution witnesses, investigating officers, and counsel in the same case are ineligible as court members. 27 A problem occasionally arises when a court member has certified or authenticated a prosecution exhibit. For example, where a court member has signed the morning report extract in an AWOL case28 or the ship's diary in an AWOL/missing movement case, 29 he or she has been deemed a prosecution witness and, hence, disqualified. The court member also becomes a prosecution witness if the trial counsel introduces a record of previous convictions signed by the court member. 30 In a similar fact situation, where the court member had signed the accused's service record, the court disqualified the court member on the theory that, in the process of preparing the service record, the court member had become an investigating officer. 3 I In one case, where the court member authenticated the accused's service record but the accused had plead guilty, the Navy Board of Review refused to find error. 32 Reaching a contrary result, however, an Air Force Board of Review argued that "we are dealing with the question of the competency of a member of a court, which question is independent of and completely disassociated from the accused's plea. Obviously, the qualifications of a member of a court are not contingent upon nor affected by the accused's plea." 33

(3)
Unavailability by regulation. By regulation, the services may restrict the availability of certain members. 34 For example, Army regulations provide that Chaplains, Medical Corps officers, Medical Specialist Corps officers, Dental

18 Scott, 25 C.M.R. at 640;see also United States v. Timmons, 49 C.M.R. 94 (N.C.M.R. 1974).
19 United States v. Quimbo, No. 335865, 2 B.R.J.C. (1949). 20
Id.
21 UCMJ art. 25(c) (1).
22 The twin purposes of the disqualification are to ensure the selection of members without any previous bias against the accused, and to prevent ill
feelings from developing among the members of the same unit. Enlisted soldiers attached to a unit are as exposed to prejudicial information, circulating

within the unit, as assigned members. III will between an assigned and attached member of a unit can be just as disruptive as ill will between two
assigned members of the unit. It would serve the legislative purposes to construe the disqualification extending to at least members attached to the
accused's unit

23 United States v. Wilson, 21 M.J. 193 (C.M.A. 1986); accord United States v. Kimball, 13 M.J. 659 (N.M.C.M.R.' 1982); United States v. Tagert, 11 M.J.
677 (N.M.C.M.R. 1981).
24 United States v. Cook, 16 C.M.R. 404, 406 (N.B.R. 1954).
25 UCMJ art. 25; R.C.M. 503(a)(1) discussion; R.C.M. 912(f)(I)(k) (unless unavoidable).
28 United States v. McGee, 15 M.J. 1004 (N.M.C.M.R. 1983) (error waived by a failure to object). See alsoUnited States v. Schneider, A.C.M. 9003419

(A.C.M.R. 31 Jan 1992).
27 UCMJ art. 25.
28 United States v. Beeks, 9 C.M.R. 743 (A.F.B.R. 1953).
29 United States v. Wells, 4 C.M.R. 501 (C.G.B.R. 1952).
30 United States v. Smith, 16 C.M.R. 453 (C.G.B.R. 1954); United States v. Hurst, 11 C.M.R. 649 (C.G.B.R. 1953).
31 United States v. McDermott, 14 C.M.R. 473 (N.B.R. 1953).
32 United States v. Forehand, 8 C.M.R. 564 (N.B.R. 1953).
33 United States v. Morris, 9 C.M.R. 786, 788 (A.F.B.R. 1953).
34 AR 27-10, chap. 7 contains a reference of such restrictions.

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Corps officers, Veterinary Corps officers, Army Nurse Corps officers and Inspectors General are normally not available for detail as court members. 35
(4) Specific types of court members. There has been some confusion concerning specific types of court members. Lawyers are qualified to serve as court members. As chapter 3 pointed out, the Articles of War contemplated that one of the court members could be a lawyer. However, the advent of the military judge makes it unnecessary to include a lawyer among the court members. Moreover, there is a danger that, if one court member is a lawyer, he or she will usurp the other members' functions, or they will be unduly swayed by the lawyer's views. Consequently, the Court of Military Appeals discourages the practice of detailing legal officers as court members. 36
Similarly, military police personnel are not per se disqualified from court membership. 37 Courts have discouraged the unnecessary selection of military police, however. "At the risk of being redundant—we say again—individuals assigned to military police duties should not be appointed as members of courts- martial. Those who are the principal law enforcement officers at an installation must not be." 38 Of course military police are subject to challenge to the same extent as any other member for proper reasons.
b.
The president of the court. The senior detailed member of the court is its president. 39 If someone other than the senior member serves as president but the error does not appear to have had any effect upon the trial's outcome, the error is harmless 40

c.
Selection of members. Subject to the foregoing qualifications and disqualifications, the convening authority is directed to "detail ... such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial temperament " 41 Within these criteria, the convening authority has broad discretion in selecting court membership 4 2 Rank, however, -may not be used as a device for the systematic exclusion of qualified court members.° The convening authority may intentionally include members of a particular gender, provided inclusion is for a proper purpose 4 4 The convening authority may rely on the recommendations of the staff and subordinate commanders who nominate prospective court members. 45 The convening authority may even appoint a court selected by a convening authority of another command or members from another command or armed force if made available by their commander. 46 Persons working in the prosecutorial arm of the convening authority's staff should not participate in the selection of members because of the appearance of impropriety that is raised.'"
4-3. Court members' duties
a. Court members in general. The court members have essentially the same duties as civilian jurors. The members must be present throughout the entire trial except for out of court hearings on motions and other matters. The members hear or see the evidence presented by the prosecution and defense and, after receiving instructions on the applicable law, retire to deliberate and vote on the accused's guilt or innocence. Unlike most civilian jurors, the members, in the event a finding of guilty is returned, also hear evidence in extenuation, mitigation, and aggravation, and, after receiving instructions on sentencing matters, retire to deliberate and vote on an appropriate sentence. During the deliberations on findings. and sentence, each member has an equal vote; no member may use rank or position to influence another member's vote. 48
In discharging their duties, the members may consider only the evidence presented in open court and included in the
36 Id.
36 United States v. Sears, 6 C.M.A. 661, 20 C.M.R. 377 (1956); see also United States v. Worrell, 3 M.J. 817 (A.F.C.M.R. 1977).
37 United States v. Hedges, 11 C.M.A. 642, 29 C.M.R. 458 (1960).
38 United States v. Swagger, 16 M.J. 759, 760 (A.C.M.R. 1983).
39 R.C.M. 502(b)(1).
4° United States v. Pulliam, 3 C.M.A. 95, 11 C.M.R. 95 (1953); United States v. Emery, 1 C.M.R. 643 (A.F.B.R. 1951).

41 UCMJ art. 25(d)(2).
42
See generally Schwender, One Potato, Two Potato ... : A Method to Select Court Members, The Army Lawyer, May 1984. at 12. 43 United States v. McClain, 22 M.J. 124 (C.M.A. 1986) (improper exclusion of junior personnel based on tendency to give lighter sentences); United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991); United States v. Daigle, 1 M.J. 139 (C.M.A. 1975) (fixed policy of excluding all lieutenants and warrant officers was improper); United States v. Greene, 20 C.M.A. 232, 43 C.M.R. 72 (1970) (selection criteria that resulted in no member of the rank of major or below resulted in an appearance of impropriety); United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964); United States v. Autrey, 20 M.J. 912
(A.C.M.R. 1985); but see United States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of persons in grades below E-3 permissible where there was a
demonstrable relationship between exclusion and the selection criteria of the Code); also United States v. Carman, 19 M.J. 932 (A.C.M.R. 1985); United
States v. Delp, 11 M.J. 836 (A.C.M.R. 1981). Deliberate inclusion of a court member is permissible, however. United States v. Crawford, 15 C.M.A. 31, 35

C.M.R. 3 (1964) (deliberate inclusion of minority member); United States v. Smith, 18 M.J. 704 (A.C.M.R. 1984) (deliberate inclusion of female member);
United States v. Nixon, 33 M.J. 433 (C.M.A. 1991) (although selection of only senior NCOs created an appearance of evil, the convening authority did not
categorically exclude lower grades from consideration).
" United States v. Smith, 27 M.J. 242 (C.M.A. 1988).

45 United States v. Marsh, 21 M.J. 445 (C.M.A. 1986); United States v. Kemp, 46 C.M.R. 152 (C.M.A. 1973).
46 R.C.M. 503(a)(3); United States v. May, 50 C.M.R. 416 (N.C.M.R. 1975); United States v. Alvarez, 5 M.J. 762 (A.C.M.R. 1978). But see United States

v. Hilow, 32 M.J. 439 (C.M.A. 1991) (improper staff assistance tainted the selection process).
41 United States v. Marsh, 21 M.J. 445 (C.M.A. 1986); United States v. Cherry, 14 M.J. 251 (C.M.A. 1982).
" United States v. Accordino, 20 M.J. 1102 (C.M.A. 1985).

22. DA PAM 27-173 • 31 December 1992

DODD0A-0091 23

record. For this reason, there are restrictions on court members' communications with other court members and other participants in the trial. Members may not discuss the case with other court members until the case is submitted to them for findings. Members may not communicate with witnesses during the trial. Private communications between a court member and witness deprive the accused of the guarantees of confrontation and cross-examination. If a court member communicates with a witness concerning the case, there is a rebuttable presumption of prejudice. The Government can rebut the presumption only by a "clear and positive showing that the improper communication ... did not and could not operate in any way to influence the decision." 49
The problem of improper communication also arises when the president of the court confers with the staff judge advocate during the trial. Such conferences are clearly unauthorized. The accused is entitled to a fair and impartial trial by a court uninfluenced from outside sources. The decision of court members should be predicated only upon evidence and instructions obtained in the courtroom. 50 Like other improper communications, a conference between the president and the staff judge advocate raises a presumption of prejudice. 5I The Government can rebut the presumption by showing that the conference concerned purely administrative matters. 52 The presumption stands, however, if the evidence shows that the conferees discussed such substantial matters as a confession's admissibility or the evidence's sufficiency. 53
The appellate courts have been justifiably strict in scrutinizing private communications. The accused has rights to confrontation and appellate review on the record. These rights would be meaningless if the courts were to permit court members to engage in off- the-record conversations with other participants in the trial.
b. The president of the court. The president's role is similar to that of a foreman of a civilian jury. The president presides over closed sessions when the members deliberate and speaks for the members in announcing findings or sentence or requesting instructions from the military judge. 54
A military judge must be detailed to every general court-martia1. 55 If, at a special court-martial, the convening authority does not detail a military judge, the president's duties are more extensive. In addition to the duties already mentioned, the president assumes most of the duties of the military judge. 56
United States v. Adamiak, 15 C.M.R. 412, 418 (C.M.A. 1954) (court members and witness discussed witness' testimony during recess of court); United States v. Almeida, 19 M.J. 874 (A.F.C.M.R. 1985) (Government successfully rebutted presumption of prejudice); United States v. Gaston, 45 C.M.R. 837
(A.C.M.R. 1972) (communication regarding the accused from an outside third party to two court members during a recess prior to findings).
5° United States v. Franklin, 9 C.M.R. 741 (A.F.B.R. 1953) (off-the-record conference between trial counsel and president of the court).
51 United States v. Aguilera, 40 C.M.R. 168 (C.M.A. 1969).
52 United States v. Nicholson, 27 C.M.R. 260 (C.M.A. 1959) (Government showed that court members were only asking for comparison of pay grades

between different services); United States v. Cox, 23 C.M.R. 535 (A.B.R. 1956) (SJA and president of court conferred during adjournment concerning
procedural aspects of investigation requested by court. No prejudice found where case showed compelling evidence of the accused's guilt.); United States

v. Willingham, 20 C.M.R. 575 (A.F.B.R. 1955) (president of court and staff legal officer conferred during recess. Error held not prejudicial as only
procedural matters were discussed.).
53 United States v. Guest, 11 C.M.R. 147 (C.M.A. 1953) (prejudicial for SJA to furnish legal authorities to president of court).
54 R.C.M. 502(b).

55 UCMJ art. 26(a).
56 R.C.M. 502(b)(2)(C); see also supra chap. 3; AR 27-10, para. 8-4.

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DODDOA-009124
Chapter 5
The Defense Counsel

General
The Supreme Court has consistently emphasized that the effective assistance of counsel is an essential element of a fair
trial. In Powell v. Alabama,' Mr. Justice Sutherland wrote that:

Even the intelligent and educated layman has small and sometimes no skill in the science of law... Left without
the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible ... He [the accused] requires the guiding hand of
counsel at every step in the proceeding against him. 2

In a long line of cases, including Gideon v. Wainwright 3 and Argersinger v. Hamlin,4 the Supreme Court has
expanded and protected the right to counsel. Although the assistance of counsel is as important in a court-martial trial
as it is in a civilian criminal trial, the Supreme Court held in Middendorf v. Henrys that an accused at a summary
court-martial does not have a right to counsel. 6 This chapter discusses the means by which the accused obtains counsel
and the standards by which the courts measure the adequacy of counsel's representation of the accused.

5-2. The Trial Defense Service
In the eyes of many, there has always been an inherent conflict of interest in having a defense counsel, paid by the United States and rated by the staff judge advocate, represent an accused in a court-martial styled "United States v. Accused." At least in part to alleviate this perception, 7 the defense function went through a metamorphosis between 1975 and 1980.8 Starting with a directive from The Judge Advocate General that defense counsel should be rated by the senior defense counsel in the command, 9 and moving through test programs in various conunands, 10 the structure of the defense function became more and more an independent entity.
On 7 November 1980 the U.S. Army Trial Defense Service (USATDS) was permanently established." USATDS is an activity of the U.S. Army Legal Services Agency (USALSA), a field operating agency of The Judge Advocate Genera1. 12 Approximately 200 judge advocates are assigned to USATDS, serving in field offices around the world. 13
Each USATDS counsel is rated by a senior defense counsel (SDC), and SDC's are rated by one of nine regional defense counsel (RDC).' 4
USATDS obtains funding through the commander, USALSA, 15 develops its own programs and plans the training for defense counsel, 16 and handles the detail of defense counsel to individual accused.'? The defense function is now being carried out by judge advocates who are independent and free to zealously represent their clients.
5-3. The initial detail of counsel
The chief, USATDS, or his delegate must detail counsel to represent the accused in a general or special court-martia1. 18 The detailed counsel is provided to the accused without cost.
Legally qualified counsel must be detailed to represent the accused in a general court- martia1. 19 The trial and defense counsel in a general court-martial must be: (1) a judge advocate or law specialist who is a graduate of an accredited law school or a member of the bar of a Federal court or of the highest court of a state; and (2) certified as competent by The Judge Advocate General 2 0 Army regulations also provide that appointees to the Judge Advocate
1 287 U.S. 45 (1 932).
2 Id. at 69.
3 372 U.S. 335 (1963).
4 407 U.S. 25 (1972).
5 425 U.S. 25 (1976).
6 Id.
7 Fact Sheet: US Army Trial Defense Service, The Army Lawyer, Jan. 1981, at 27.

See generally, Howell, TDS:. The Establishment of the U.S. Army Trial Defense Service, 100 MU. L. Rev. 4 (1983) [hereinafter cited as Howell). 9 Field Defense Services, The Army Lawyer, Oct. 1976, at 1, 6. 10 See Howell.supra note 8, at 35-50. " Id. at 45. 12 AR 27-10, para. 6-3.
13 The majority of these judge advocates serve as trial defense counsel "whose primary duties are to represent soldiers in courts-martial, administrative boards, and other proceedings and act as consulting counsel as required by law or regulations.' Id. at para. 6.-3h. USATDS Standard Operating Procedure. 15 AR 27-10, para. 6-5a. 16 Id. at para. 6-6. 17 Id. at para. 6-a 16 Id. at para. 6-9 (may be delegated to senior defense counsel). UCMJ art. 27. 20
Id.
DA PAM 27-173 • 31 December 1992. 25
DODDOA-009125
General's Corps be graduates of an accredited law school and members of the .bar of a Federal court or of the highest
court of a state. 2 I
In a special court-martial, legally qualified defense counsel are also detailed for the accused. 22 The accused must be
afforded the opportunity to be represented at trial by legally qualified counsel. 23
The UCMJ states that legally qualified counsel must be provided in a special court-martial unless "physical
conditions or military exigencies" make legally qualified counsel unavailable. 24 If legally qualified counsel is not
provided, the convening authority must prepare a detailed written statement explaining why legally qualified counsel
was unavailable.25 The statement is appended to the record of trial to permit appellate review of the denial of the
request for legally qualified counse1. 26 This requirement is clearly incongruous as the convening authority no longer
details defense counsel in the Army. A change to the UCMJ that would require the chief, USATDS, or his or her
delegate to make such an explanation, if ever needed, would provide consistency in this area. A bad conduct discharge
may not be adjudged by a special court-martial unless "counsel qualified under Article 27(b) (legally qualified counsel)
was detailed to represent the accused." 27 Note, however, that R.C.M. 502 goes beyond the UCMJ and requires detailed
counsel in a special court-martial to be certified under article 27(b).
While the accused has a right to legally qualified counsel, he or she does not have a right to counsel of any
particular rank or experience. 28 It is good practice to detail defense counsel roughly equal to the trial counsel in ability
and experience. If the trial counsel is markedly superior in ability or experience, there is a risk that the accused may
raise the issue of inadequate representation. 29
In addition to detailing defense counsel, the USATDS may detail associate counse1. 30 If the USATDS details an associate defense counsel, the chief and associate counsel constitute a defense team. 3 I All members of the defense team should be present at the tria1. 32 If the associate defense counsel is absent, the record should reflect the accused's consent to the absence. 33 Where the record does not contain the accused's express consent, however, there is no prejudicial error if it can be fairly inferred from the record that the accused in fact consented to the associate counsel's absence. 34 If the chief defense counsel is absent, the record should reflect the accused's consent to counsel's absence. 35
Again, even if the record does not contain an express consent, the court may infer the accused's consent from the record.36 In addition to associate counsel, who must be certified, assistant defense counsel may be detailed to general or special courts-martia1. 37 Such an assistant counsel need only be a commissioned officer. 38
5-4. The replacement of detailed counsel
The authority that details defense counsel can easily replace a detailed counsel before an attorney-client relationship has formed. 39 The detailing authority may excuse or change such counsel without showing cause a0
Once an attorney-client relationship has formed, however, the severing of such a relationship through the replace­ment of detailed counsel can be very difficult. The detailing authority can replace such counsel only under very limited circumstances.41 Clearly, detailed counsel may be excused or replaced at the express request of the accused. 42 Detailed defense counsel will also normally be excused when the accused has obtained individual military counsel.° The Manual also recognizes that the attorney-client relationship may have to yield to other good cause shown on the
21 AR 135-100, para. 3-13 (1 Feb. 1984); AR 601-102, para. 4h, 41(1 Oct. 1981).
22 UCMJ art. 27(c); R.C.M. 501(b). 23 R.C.M. 502(d). Almost all accused avail themselves of this right. A very small percentage of military accused at special or general court-martial opt for self-representation. Such pro se defense is permitted only after a suitable inquiry by the military judge. R.C.M. 506(d). It is error to summarily deny the
accused's request to proceed pro se. United States v. Tanner, 16 M.J. 930 (N.M.C.M.R. 1983).
24 UCMJ art. 27(c)(1).
25
Id.
26 id
27 AR 27-10, para. 5-24a.
28 R.C.M. 502(d)(1).
29 See,e.g., United States v. Cronic, 466 U.S. 648 (1984); United States v. Tellier, 32 C.M.R. 323 (C.M.A. 1962).

30 R.C.M. 502(d)(1).
31 United States v. Nicholson, 39 C.M.R. 69 (C.M.A. 1968).
32 Id

33 United States v. Howard, 39 C.M.R. 433 (A.B.R. 1968).

34 Id.
38 39 C.M.R. 69 (C.M.A. 1968).
36 Id

32 R.C.M. 502(d)(2).
38 Id. Assistant counsel should not be permitted to act in the absence of qualified counsel.
39 R.C.M. 505(d)(2)(A).
40

Id.
41 R.C.M. 505(d)(2)(B). United States v. Gnibus, 21 M.J. 1 (C.M.A. 1985). 02 R.C.M. 506(c).
43 R.C.M. 506(b)(3). The detailing authority may allow detailed counsel to remain on the case as associate counsel if requested by the accused. The military judge cannot misadvise the accused. In United States v. Johnson, 21 M.J. 211 (C.M.A. 1981), the military judge improperly advised the accused that if he obtained individual military counsel, he would -automatically lose the service of his detailed counsel.
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DODDOA-009126

record." "Good cause" will include physical disability, military exigency, and extraordinary circumstances, 45 but will not include those"temporary inconveniences which are incident to normal conditions of military life." 46 Whenever new counsel is detailed without the consent of the accused, the courts will closely scrutinize the action. 47
5-5. Individual military counsel
In addition to the right of self representation and the right to detailed defense counsel, the accused also enjoys the
option of requesting a military counsel of the accused's own selection if such counsel is reasonably available."
However, there is an important exception: in a general or special court-martial the accused may not select a layman
military member as individual counsel. In United States v. Kraskouskas, 49 the Court of Military Appeals announced the
rule that, in a general court-martial, the defense, whether detailed or individual, must be an attorney. In any case, the
military judge or president of a special court-martial without a military judge may permit a layman to sit at the counsel
table and consult with the accused; but the accused may not select a layman for active representation as individual
counsel in a general or special court-martia1. 50
At one time the courts interpreted "reasonably available" very broadly, and counsel were occasionally transported around the world to represent military accused. Amendments to the UCMJ in 1981 allowed the services to determine reasonable availability. 5I The term reasonably available was then defined in a change to the 1969 Manual 52 and by regulation53 in a much more restrictive way. The present restrictions in the 1984 Manual 54 and regulations55 are similarly very restrictive and result in most individually requested counsel being USATDS counsel from the same or a nearby location.
The procedure for requesting individual military counsel is very straightforward. The request, with all necessary details, is sent through the trial counsel to the convening authority. 56 If the requested counsel is one of those determined to be not reasonably available under the Manual or regulation, then the convening authority shall deny the request and notify the accused. 57 The convening authority will not deny the request if the accused asserts either an
" R.C.M. 505(d)(2)(B).
45 E.g., United States v. Hanson, 24 M.J. 377 (C.M.A. 1987) (military judge acted within the bounds of his authority in reducing detailed defense counsel
to the status of assistant defense counsel and detailing additional counsel to represent accused based on belief he had not adequately investigated the
case); United States v. Jones, 4 M.J. 545 (A.C.M.R. 1978) (defense counsel's release from active duty). Cf. United States v. Baca, 27 M.J. 110 (C.M.A.
1988) (military judge improperly severed attorney-client relationship when chief defense counsel testified on behalf of accused on a competency motion
litigated by the associate defense counsel).
46 R.C.M. 505(f).See, e.g., United States v. Catt, 1 M.J. 41 (C.M.A. 1975) (prior participation in a minor way in the Government's preparation of the case

by detailed defense counsel did not automatically require that counsel be replaced); United States v. Timberlake, 46 C.M.R. 117 (C.M.A. 1973) (deep­
seated differences between counsel and accused plus permanent change of station of defense counsel).
47 United States v. Gnibus, 21 M.J. 1 (C.M.A. 1985); United States v. Miller, 2 M.J. 767 (A.C.M.R. 1976).
48 R.C.M. 506(a).

45 26 C.M.R. 387 (C.M.A. 1958).
5° R.C.M. 506(e).
51 UCMJ art. 38(b) amended 20 Nov. 1981. Military Justice Amendments of 1981, Pub. L. No. 97-81, § 4(b)(7). 95 Stat. 1088.

MCM, 1969 (rev. ed.), para 48(b). 53 AR 27-10. 54 R.C.M.506(b)(1). The following persons are not reasonably available:
(A)
A general or flag officer;

(B)
A trial or appellate military judge;

(C)
A trial counsel;

(D)
An appellate defense or government counsel;

(E)
A principal legal advisor to a command, organization, or agency and, when such command, organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor,

(F)
An instructor or student at a service school or academy;

(G)
A student at a college or university;

(H)
A-member of the staff of the Judge Advocate General of the Army, Navy, or Air Force, the chief counsel of the Coast Guard, or the director, Judge

Advocate Division, Headquarters, Marine Corps.
55 AR 27-10, para. 6-10b. The following persons are also deemed not reasonably available to serve as individual military counsel:

a.
USATDS counsel assigned to and with duty station at the office of the chief, USATDS.

b.
Senior Regional Defense Counsel, Europe.

c.
USATDS counsel assigned outside the USATDS region in which the trial or article 32, UCMJ, investigation will be held, unless the requested counsel is stationed within 100 miles of the situs of the trial or investigation.

d.
USATDS counsel whose duty stations are in Panama, Hawaii or Alaska, for article 32, UCMJ, investigations or trials held outside Panama, Hawaii, or Alaska, respectively. AR 27-10, para. 5-7, also contains further restrictions stating that the chief of Military Justice/Criminal Law Section, or persons serving in an equivalent

position are also deemed not reasonably available. AR 27-10, para. 5-7d, lists relevant factors to determine the reasonable availability of counsel. 56 AR 27-10, para. 5-742). Requests will, as a minimum, contain the following information:
a.
Name, grade, and station of the requested counsel.

b.
Name, grade, and station of the accused and his or her detailed defense counsel.

c.
UCMJ article(s) violated and a summary of the offense(s).

d.
Date charges preferred and status of case; e.g., referred for investigation under article 32, UCMJ, referred for trial by GCM, bad-conduct discharge (BCD) SPCM, or regular SPCM.e.

e.
Date and nature of pretrial restraint, if any.

f.
Anticipated date and length of trial or hearing.

g.
Existence of an attorney-client relationship between the requested counsel end the accused, in this or any prior case.

h.
Special circumstances or other factors relevant .determine availability. 57 R.C.M. 506(b)(2); AR 27-10, para. 5-741).

DA PAM 27-173 • 31 December 1992.
27

DODDOA-009127

existing attorney-client relationship or that the requested counsel will become reasonably available by the date of the trial. 58 A request that has not been denied by the convening authority will be forwarded to the commander or supervisor of the requested person. 59 That authority will then make a determination of reasonable availability" based upon factors prescribed in the regulation 6 1 If the determination is adverse, the accused may appeal to the next higher level of command. 62 The standard for review is whether the commander has abused his or her discretion. 63 If the appeal is also denied the accused must raise the request again at trial in order to preserve the issue for appeal." Obviously, in order to review the decision at trial it is necessary that the authorities who denied the request for individual military counsel set forth in detail the reasons for the denial of the request. 65 The remedy at trial, even if it is determined that there was an abuse of discretion, is not dismissal." The Manual requires the military judge to make a record of the facts and grant any continuances that might be necessary, but the military judge may not dismiss the charges on this issue. 67
5-6. Individual civilian counsel
The article 32 investigating officer, the detailed defense counsel, and the military judge must advise the accused of the
right to individual civilian counsel as well as the right to individual military counse1. 68 While the Government furnishes
military counsel at no expense to the accused, the accused must obtain civilian counsel at no expense to the
Government. 69
If the accused indicates a desire to obtain civilian counsel, one must be given a fair opportunity to do so. The Court of Military Appeals has stated that "it ought to be an extremely unusual case when a man is forced to forego civilian counsel and go to trial with assigned military counsel rejected by him." 70 The military judge can ensure that the accused has a fair opportunity to retain civilian counsel by granting a reasonable continuance. In the final analysis, however, the granting or denial of a motion for continuance lies within the military judge's sound discretion. 71 If the accused has been granted an ample opportunity to retain civilian counsel, including one or two continuances, the judge's denial of an additional continuance is not error."
Just as there are limitations upon the types of military members the accused may select as counsel, there are limitations upon the type of civilian counsel the accused may retain. Individual counsel must be legally qualified." The Court of Military Appeals has stated that in a general court-martial, counsel must be a lawyer of a "recognized bar." 74
75 an attorney admitted to practice in the Republic of the Courts have, for example, permitted a British solicitor, Philippines,76 and a member of the bar of the Federal Republic of Germany 77 to practice before courts-martial. The
58 Id.
59 Id.
60 R.C.M. 506(b)(2); AR 27-10, para. 5-7f(1); United States v. Hacrow, 9 M.J. 669 (N.C.M.R. 1980). 61 AR 27-10, para. 5-7d. In determining the availability of counsel not governed by the provisions of paragraph 5-7a, above, the responsible authority under R.C.M. 506(b)(1) may consider all relevant factors, including, but not limited to, the following:
a.
The requested counsel's duty position, responsibilities, and workload.

b.
Any ethical considerations that might prohibit or limit the participation of the requested counsel.

c.
Time and distance factors; i.e., travel to and from the situs, anticipated date, and length of trial or hearing.

d.
The effect of the requested counsel's absence on the proper representation of the requested counsel's other clients.

e.
The number of counsel assigned as trial or assistant trial counsel to the article 32, UCMJ, investigation or trial.

f.
The nature and complexity of the charges and legal issues involved in the case.

g.
The experience level, duties, and caseload of the detailed military defense counsel.

h.
Overall impact of the requested counsel's absence on the ability of the requested counsel's office to perform its required mission; e.g., personnel strength, scheduled departures or leaves, and unit training and mission requirements. 62 R.C.M. 506(b)(2). No appeal, however, may be made which requires action at the departmental or higher level. 63 United States v. Quinones, 50 C.M.R. 476 (C.M.A. 1975). " R.C.M. 905(b)(6); United States v. Cutting, 34 C.M.R. 127 (C.M.A. 1964). 65 United States v. Gatewood, 35 C.M.R. 405 (C.M.A. " United States v. Redding, 11 M.J. 100 (C.M.A. 1981); R.C.M. 906(b)(2).

67 R.C.M. 906(b)(2).
68 See UCMJ art. 32; R.C.M. 502(d)(6) discussion; United States v. Johnson, 21 M.J. 211 (C.M.A. 1986); United States v. Donohew, 39 C.M.R. 149

(C.M.A. 1969). See also United States v. Jorge, 50 C.M.R. 845 (C.M.A. 1975) (the military judge erred in failing to advise the accused of his right to
request civilian counsel even though the accused was represented by individual military counsel at trial).

69 R.C.M. 506(a).
70 United States v. Kinard, 45 C.M.R. 74, 77 (C.M.A. 1972).

71 Id.
72 United States v. Thomas, 22 M.J. 57 (C.M.A. 1986) (the exercise of the right to civilian counsel is not absolute but must be balanced against society's
interest in expeditious administration of justice); United States v. Thomas, 33 M.J. 694 (A.C.M.R. 1991) (abuse of discretion to deny continuance to retain
civilian counsel); United States v. Hampton, 50 C.M.R. 531 (N.C.M.R. 1975) (court held that the military judge did not abuse his discretion by denying a
third continuance when the civilian counsel was unable to appear because of being involved in a trial in another jurisdiction and the accused was

defended by two military counsel, individual and appointed).

73 R.C.M. 502(d).
74 United States v. Kraskouskas, 26 C.M.R. 387, 389 (C.M.A. 1958); R.C.M. 502(d) extends to special courts-martial.
75 United States v. Harris, 26 C.M.R. 273 (C.M.A. 1958).
76 United States v. George, 35 C.M.R. 801 (A.F.B.R. 1965).
77 United States v. Easter, 40 C.M.R. 731 (A.C.M.R. 1969).

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DODD0A-0091 28

determination of whether a foreign attorney is qualified to practice before a court-martial will be made by the military judge. 78 The military judge should primarily look at the counsel's training and familiarity with general principles of criminal law that apply in a court-martia1. 79
5-7. Withdrawal by detailed counsel
If the accused obtains individual counsel, the accused may excuse or retain detailed military counsel. Unless the
accused expresses a contrary intention, retained detailed counsel becomes the associate to the individual civilian
counsel; the individual civilian counsel is the chief counsel in charge of the case. The accused may stipulate that
detailed counsel will be the chief counsel. In the typical case, though, the detailed counsel is the associate.
If the accused desires the detailed counsel to serve as associate, the detailed counsel should comply with the
accused's desire. If the detailed counsel remains as associate counsel, he or she is obliged to cooperate with individual
counsel. The two counsel might disagree over tactics. If they cannot resolve their disagreement, they should inform the
accused of the dispute and permit the accused to resolve the disagreement. If the detailed counsel cannot in good
conscience accept the accused's decision or if the dispute has strained the relations with individual counsel to the point
that they cannot work together as a defense team, the detailed counsel should ask the military judge to permit
withdrawal from the case. Rule 1.16(b)(3) of the Rules of Professional Conduct for Lawyers allows permissive
withdrawal in these circumstances. 8°
5-8. The disqualification of counsel
The counsel who participate in courts-martial are subject to the normal ethical prohibitions against representation of conflicting interests and disclosure of a client's confidences. 81. Based upon these ethical mandates, the Congress in the • UCMJ, the President in the Manual, and the Court of Military Appeals in its decisions, have developed a number of rules of disqualification: a person who has acted as investigating officer, military judge, or court member in a case may not subsequently act as trial counsel or assistant trial counsel and, unless expressly requested by the accused, may not act as defense counsel or assistant defense counsel in the same case; 82 a person may not act for both the prosecution and the defense in the same case; 83 a person who acted for the accused at a pretrial investigation or other proceeding involving the same general matter may not subsequently act for the prosecution; 84 a person who has previously acted for the prosection in the same case is ineligible to serve as a member of the defense; 85 and an accuser may not serve as defense counsel unless the accused expressly requests that person. 86
The essence of each rule is that if a person has acted in certain capacities earlier in the proceeding, that person may not perform certain counsel functions later in the same or a closely related proceeding. In each fact situation, the switch in capacities involves too great a likelihood of a conflict of interest or a disclosure of confidential communications.
The Court of Military Appeals follows a three part test to determine if counsel are disqualified: was there former representation, was there a substantial relationship between subject matters, and was there a subsequent proceeding. 87 If the test is met, the government has the burden to show no communication occurred between the attorney who previously represented the accused and the prosecution. If so, counsel is disqualified. 88 Potentially, the conflict could dikpalify the entire office.
R.C.M.
502(d)(3)(B); Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1 980). 75 R.C.M. 502(d)(3)(B). The discussion also points out other important factors to consider such as:

a.
the availability of the counsel at times at which sessions of the court-martial have been scheduled;

b.
whether the accused wants the counsel to appear with military defense counsel;

c.
the familiarity of the counsel with spoken English;

d.
practical alternatives for discipline of the counsel in the event of misconduct;

e.
whether foreign witnesses are expected to testify with whom the counsel may more readily communicate than might military counsel; and

f.
whether ethnic or other similarity between the accused and the counsel may facilitate communication and confidence between the accused and civilian detense counsel. 80 DA Pam 27-26;see also infra chap. 30. 81 DA Pam 27-26 at Rules 1.6, 1.7. 8? UCMJ art 27; United States v. Trakowski, 10 M.J. 792 (A.F.C.M.R. 1981). But see United States v. Sparks, 29 M.J. 52 (C.M.A. 1989).

UCMJ art. 27. 84 R.C.M. 502(d)(4).
85 Id. But seeUnited States v. Catt, 50 C.M.R. 326 (C.M.A. 1975). In Can the court drew a distinction between someone who had acted in the same case
'for the prosecution" and someone who had participated in the same case albeit technically for the Government, in a neutral, impartial, or advisory
capacity. The court stated that in the former situation, any member of the defense would have to be "excused forthwith" as statutorily ineligible. Further,
once an attorney has established an attorney-client relationship for either the prosecution or the defense, one is bound by a professional duty to avoid
divulgence of the client's confidences and secrets. This prohibition does not automatically apply, however, in those situations where no confidence or
secrets have been obtained. Finally, the court stated the; where an accused expressly requests such a person as counsel, there is no legal or ethical bar

preventing that person from acting in a defense capacity See also United States v Sparks, 29 M.J. 52 (C.M.A. 1989).
88 R.C.M. 502(d)(4); United States v. Lee, 2 C.M.R. 118 (C.M.A. 1952).
87 United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990). See also United States v. Stubbs, 23 M.J. 188 (C.M.A. 1987).
88 Id.

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5-9. The right to counsel of choice
Although the accused is entitled to the assistance of counsel at a court-martial, the sixth amendment does not always
guarantee the accused the right to choose one's own counsel. In United States v. Gipson, 89 the Army Court of Military
Review considered the issue of whether the military judge erred by failing to grant the individual civilian defense
counsel a continuance to prepare and participate at trial. After a number of delays requested by the first civilian defense
counsel over a 4-month period, the military judge denied the motion of the new civilian defense counsel for a 30-day
delay. The military judge ascertained that the detailed counsel was prepared to defend the case; the new civilian
defense counsel withdrew from the case; and the trial proceeded with detailed military counsel representing the
accused.
The Army Court of Military Review found that the"right to counsel of choice is not absolute and must be balanced
against society's interest in the efficient and expeditious administration of justice." 9° Here, another continuance was
necessary to permit the accused to be represented by counsel of choice. The history of delays in the case reflected the
military judge's attempt to allow the accused to be represented by his or her counsel of choice. The court held,
therefore, that there was no abrogation of the accused's right to be represented by civilian counsel and no abuse of
discretion by the military judge in denying the motion for continuance. 91
The Supreme Court clarified this issue further in United States v. Wheat. 92 In Wheat the Supreme Court reviewed a claim that the accused had been prejudiced when the trial court would not permit him to waive conflicts of interest by his attorney who also represented two other co-defendants in a drug conspiracy case. Chief Justice Rehnquist wrote that:
Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers [Citations omitted].93
The Supreme Court declined to find that waivers by all affected defendants would cure the problems created by using the same attorney in the multiple representation situation. 94 Instead, the trial court must recognize a presumption in favor of an accused's counsel of choice, but the presumption may be overcome by a showing of actual or serious potential for conflict. 95
In considering whether the accused is entitled to counsel of choice, the ethical standards of the Rules of Professional Conduct96 also apply. A defense counsel should particularly note the requirements of Rule 1.7, "Conflict of Interest: General Rule," and Rule 1.9, "Conflict of Interest: Former Client," in advising an accused about his or her ability to represent the accused free of actual or potential conflicts of interest since this may affect the accused's choice of
counse1.97
5-10. The representation of more than one accused
The accused is entitled to a defense counsel who will provide loyal representation. If the defense counsel undertakes to represent two or more accused, the counsel might discover that he or she cannot defend all of the clients with undivided loyalty.98 The clients' interests may conflict, and, in the process of attempting to resolve the conflict, the defense counsel might deny one or both clients of the loyalty to which they are entitled. This problem can arise whether the defense counsel represents the clients at separate trials or at the same trial. 99
a. Separate trials. Consider the following fact situation: at the first trial, the counsel defended A. In the second trial, the same counsel is defending B. A appears as a prosecution witness against B. A's and B's cases are closely related. When the trial counsel completes the direct examination of A, the military judge permits defense counsel to cross­examine A. Because the defense counsel and A once had an attorney- client relationship, the defense counsel has a duty to A not to disclose confidential communications.IN In this hypothetical situation, there is a serious danger that
89 25 M.J. 781 A.C.M.R. 1988).
99 Id. at 783. But see United States v. Wilson, 28 M.J. 1054 (N.M.C.M.R. 1989).

92 108 S. Ct. 1692 (1988).
Id. at 1697. " Id. % Id. at 1700. es DA Pam 27-26. 97 DA Pam 27-26 at Rules 1 7 1 9 See also Comments to Rules 1.7 and 1.9. 98 DA Pam 27-26 at Rule 1.7.
ss
See generally, AR 27-10, app. C, Attomey-Client Guidelines, para. C-2a(steps to ensure that conflicts of interest do not arise because of multipleclients).
100 See DA Pam 27-26 at Rule 1.9.
30.
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the defense counsel's past relationship with A will inhibit cross-examination of A. Counsel might fear that certain questions that might otherwise have asked would touch upon the subject matter of privileged communications with A. The end result might be that the defense counsel will deny B the individual loyalty—and vigorous defense--to which B is fully entitled. Where there is a fair risk that the second client has received less effective representation, the court will reverse a conviction in the second trial; counsel's loyalty is so essential to a fair trial that even the appearance of evil must be avoided. 101
The governing rules are well stated in the cases of United States v. Lovett 102 and United States v. Thornton)" In Lovett, the Court of Military Appeals strongly emphasized that the client must have one's counsel's undivided loyalty; if not, the client's right to counsel does not have "any meaning." 104 "So strong is the prohibition that, despite the unquestioned purity of counsel's motives, any doubt concerning equivocal conduct on his part 'must be regarded as having been antagonistic to the best interests of his client.' "105
In Thornton, the court added that:
Counsel thus found himself placed in the legally precarious position of having to "walk the tightrope" between safeguarding the interests of the accused on the one hand and retaining the prior confidences of [X] on the other. Such a rope is too narrow. The possibility of falling is too real... The basic underlying principle which condemns the representation ... of conflicting interests seeks to achieve as its purpose no more than this--to keep counsel off the tightrope... [T]he test is not whether counsel could have done more by way of further cross-examination or impeachment of his former client, but whether he did less as a result of his former participation.'"
In the Thornton case, the court suggested that it might not have reversed if the counsel had fully informed the second client of the possible conflict. 107 The Court of Military Appeals has also emphasized that a defense counsel, even though detailed to represent more than one accused, has an ethical duty to take steps necessary to withdraw from a situation that involves a conflict of representation. 1" Thus, detailed counsel should be especially careful to avoid any conflict of interest. Because of the problems caused by multiple representation and the inability to set down any general guidelines, the Court of Military Appeals finally drew a bright line rule in United States v. Breese.'"
[a]ccordingly, from the date of this decision [27 April 1981], we shall assume--albeit subject to rebuttal--that the activity of defense counsel exhibits a conflict of interest in any case of multiple representation wherein the military judge has not conducted a suitable inquiry into possible conflict. 110
Of course, to conduct the inquiry the military judge must be on notice of a potential conflict or the conflict must be apparent." Where the accused retains civilian counsel with a conflict of interest and knowingly waives the right to conflict-free counsel, the Government should not be held accountable. 112 In any event the military judge should address the accused personally; 113 advise the accused of the dangers of representation by counsel with a conflict of interest; elicit from the accused a narrative response. that he or she has been advised of the attorney's possible conflict of interest; and ensure the accused has discussed this possible conflict with the attorney or another attorney and voluntarily waives the sixth amendment protections. An accused may waive the right to conflict-free counsel, but such waiver must be knowing and voluntary. 114
b. Same trial. The dangers are even greater where no apparent conflict of interest exists and counsel decides to represent both accused at the same trial. An unforeseen conflict could arise during trial which might cause the defense counsel to overtly side with one client against the other. If the defense counsel turns against one of the clients, the
101 United States v. Davis, 3 M.J. 430 (C.M.A. 1977); United States v. Thornton, 23 C.M.R. 281 (C.M.A. 1957).
102 23 C.M.R. 168 (C.M.A. 1957).
103 23 C.M.R. 281 (C.M.A. 1957).

1" 23 C.M.R. 168, 171 (C.M.A. 1957).
1°5 Id. (emphasis added) (citing United States v. McCluskey, 20 C.M.R. 261, 266 (C.M.A.

1955)). 1 °6 23 C.M.R. 281, 283-85 (C.M.A. 1957).
107 United States v. Thornton, 23 C.M.R. 281, 285 (C.M.A. 1957). See also R.C.M. 502(d)(5) discussion (B); ABA Standards, The Defense Function,
Standard 3.5 (1979).
106 United States v. Blakey, 1 M.J. 247 (C.M.A. 1976). The court found no conflict of interest in this case but reiterated its admonition of appointing
separate counsel for each accused in United States v. Evans, 1 M.J. 206 (C.M.A. 1975); R.C.M. 502(d)(6) discussion (B) (defense counsel should bring
the matter to the attention of the military judge so the accused's understanding and choice can be made part of the record); DA Pam 27-26 at Rule 1.16.
133 11 M.J. 17 (C.M.A. 1981).
110 Id. at 23. The court suggested that Federal Rule of Criminal Procedure 44(c) be used as a guideline in conducting this inquiry. See also United States

v. Testman, 7 M.J. 525 (A.C.M.R. 1979), where the court suggested that perhaps there was no situation where there will not be a conflict of interest.
United States v. Hurtt, 22 M.J. 134 (C.M.A. 1986) and United States v. DeVitt, 20 M.J. 240 (C.M.A. 1985) reaffirm the Breese rebuttal presumption rule.
111 United States v. Devitt, 20 M.J. 240 (C.M.A. 1985); United States v. Jeancoq, 10 M.J. 713 (A.C.M.R. 1981).
112 See United States v. Piggee, 2 M.J. 462 (A.C.M.R. 1975).
113 R.C.M. 901(d)(4)(D).

114 United States v. Devitt, 24 M.J. 307 (C.M.A. 1987); United States v. Hurtt, 22 M.J. 134 (C.M.A. 1986); United States v. Davis, 3 M.J. 430 (C.M.A. 1977); AR 27-10, para. C-2. The military judge also may err by improperly severing the attorney-client relationship where the accused has waived the right to conflict-free counsel. United States v. Herod, 21 M.J. 762 (A.F.C.M.R. 1986), pet. denied, 24 M.J. 447 (C.M.A. 1987).
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court members might also turn against the client. The surest way to avoid a conflict of interest is to have each accused separately represented." 8
If that is not possible, counsel can move for a severance of the trials. 116 Counsel may demonstrate that the clients have antagonistic interests, or that the clients have factually inconsistent defenses. 117 There are cases where the clients' interest may not be antagonistic. In one such case, counsel defended two accused at the same trial without sacrificing the interest of one to the other. 118 With respect to one client the counsel conceded that the client had stabbed the victim; but the counsel could hardly have done otherwise in the face of overwhelming evidence that the client had performed the act. With respect to the other client the counsel argued that he could be guilty of nothing more than simple assault and battery. Both accused received identical, fairly lenient sentences. The court refused to hold that the counsel had denied the first client effective representation. 119
Cases in which it will be possible for counsel to loyally defend two clients are rare. In United States v. Faylor, 12° the defense counsel represented co-accused Faylor and Fisher at the same trial. They entered pleas of guilty to the charge of misappropriation of a car. During the presentencing proceeding, counsel made an unsworn statement on behalf of both accused. In the statement, counsel made the following points: Fisher was very young and, prior to the offense, had never been in trouble with the authorities; Fisher may have been more intoxicated than Faylor; Faylor was the motivating force in the offense; and Fisher deserved only a brief period of confinement without a punitive discharge. The court members sentenced Fisher to a brief period o2 confinement, and sentenced Faylor to dishonorable discharge, total forfeitures, and confinement at hard labor for 2 years. On appeal, the Court of Military Appeals ordered a rehearing on Faylor's sentence. The court commented:
A better example of conflict of interest could not be more clearly and amply demonstrated... The sideling tactics of counsel with an apparent objective of totally sacrificing the accused Faylor in an attempt to impress the court with the need for mitigation for his other client left the accused Faylor inadequately and ineffectively represented. It is additionally evident from a glance at the severity of the sentence meted to the accused Faylor, as contrasted with that accorded... Fisher that the court was as equally impressed as defense counsel with the accused's "motivating force" of criminality referred to by counsel in his plea. This accused was deprived of the undivided loyalty of his counse1. 121
5-11. The representation of one accused
Whether the counsel is a military attorney or a civilian lawyer, the accused is entitled to the effective assistance of counsel. 122 To safeguard this right, the court must determine whether counsel has defended the client with reasonable competence. Over the years, the Court of Military Appeals has taken several different views of the test of adequacy of representation.
a. The first view. The Court of Military Appeals' first view was that the accused had not been denied the right to the effective assistance of counsel unless the defense was grossly and glaringly inadequate. The court presumed that counsel performed their tasks competently and was reluctant to second-guess counsel. The court asserted that it would hold counsel adequate unless counsel's defense was "so erroneous as to constitute a ridiculous and empty gesture or [was] so tainted with negligence or wrongful motives... as to manifest a complete absence of judicial character." 123
124 The court applied this view even where counsel interviewed the The court applied this view even to capital cases. client for only 10 minutes prior to tria1. 128
In civilian criminal practice, the defendant's appellate counsel is ordinarily the same counsel who represented the defendant at the trial level. The civilian appellate counsel is understandably reluctant to criticize one's own perform­ance at trial. In military practice, however, the trial defense counsel does not represent the accused on appeal; there are
118 United States v. Blakey, 1 M.J. 247 (C.M.A. 1976); United States v. Evans, 1 M.J. 206 (C.M.A. 1975). 116 R.C.M. 906(b)(9).
117 Id. discussion.
118 United States v. Young, 27 C.M.R. 171 (C.M.A. 1958).
119 In light of the advent of USATDS and strict standards of representation, such a holding should be unlikely today.
120 9 C.M.A. 547, 26 C.M.R. 327 (1958).
121 Id. at 548, 26 C.M.R. at 328; United States v. Devitt, 20 M.J. 240 (C.M.A. 1985) ('When an actual conflict of interest develops at any stage of a trial,

prejudice will be conclusively presumed as to all further proceedings.* Id. at 244).See also United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985)
(prejudice only if actual conflict adversely affects the lawyer's performance); United States v. Newark, 24 M.J. 238 (C.M.A. 1987).
122 United States v. Jefferson, 13 M.J. 1 (C.M.A. 1982); United States v. Walker, 45 C.M.R. 150 (C.M.A. 1972): United States v. Haston, 21 M.J. 559

(A.C.M.R. 1985).
123 United States v. Hunter, 6 .M.R. 37, 41 (C.M.A. 1952). 124 id
125 United States v. Wilson, 8 C.M.R. 48 (C.M.A. 1953).
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separate appellate defense counsel. The military system invites, if not encourages, appellate defense counsel to make the claim of inadequate representation by the trial defense counse1. 126
b. The second view. In response to appellate defense counsel's insistence, the court adopted a second view in United States v. Parker. 127 The second view was that, at least in capital cases, the test for adequacy should be strict. Parker was a capital case in which the accused was convicted of rape. Following conviction, counsel failed to introduce any evidence in mitigation or extenuation to avoid the death sentence. The court members sentenced the accused to death. The court used a technique it employed in subsequent cases: it seized upon one general critical shortcoming and reinforced its decision by listing other supporting deficiencies. The court felt that the counsel's principal shortcoming was his failure to attempt to avoid the death sentence. To reinforce its decision, the court listed other specific deficiencies: there was some evidence that counsel had interviewed the accused only once prior to trial for 30 minutes; since counsel's Cross-examination of Government witnesses strengthened the prosecution's case, the counsel probably had not interviewed the Government witnesses before trial; even though the court was specially appointed and high ranking, counsel did not voir dire or challenge any members; he made only two objections during the taking of testimony; he did not request instructions nor except to the instructions given; he offered no testimony on the merits; he offered no evidence to support his claim that the accused's confession was involuntary; and, lastly, he did not request a continuance to obtain additional time to prepare the defense.
Chief Judge Quinn dissented and pointed out that the defense counsel's decision not to present mitigating or extenuating evidence might have been wise. Chief Judge Quinn noted that if defense counsel had presented such evidence, the trial counsel could have introduced very damaging rebuttal evidence. 128 The Chief Judge opined that the real explanation for the majority's decision was that the majority was disturbed by the death sentence. 129 Subsequent cases provided some support for this opinion; the cases seemed to restrict the application of the second view of adequacy of counsel to capital cases. 130
c. The third view. The court next applied a strict test in all cases, capital and noncapital, contested and guilty plea.
The court initially applied the third view in a noncapital, guilty plea case. 131 The accused pleaded guilty to an 8­month desertion. A pretrial agreement provided that the convening authority would not approve any sentence in excess of dishonorable discharge, total forfeitures, and 18 months' confinement at hard labor. The accused did not have any admissible prior convictions. Nevertheless, his counsel neither presented evidence in extenuation or mitigation nor argued to lessen the sentence. After an 8-minute deliberation, the court members sentenced the accused to a dishonora­ble discharge, total forfeitures, and 2 years' confinement at hard labor. Because there was an issue about whether there were admissible matters in extenuation and mitigation which counsel could have presented, the court remanded the case to the Board of Review. In remanding the case, the court clearly indicated that, if there were admissible matters in extenuation and mitigation, counsel's failure to present them would constitute inadequate representation.
The courts applied the third view even where the counsel presented some evidence in extenuation and mitigation but omitted evidence the court considers crucial. For example, the courts have held counsel inadequate where counsel failed to show that the accused had made restitution 132 or that a civilian court had already punished the accused for the same offense. 133 The courts even criticized counsel who refused to permit the accused to testify in extenuation and mitigation in fear that the testimony might be inconsistent with the guilty plea and render the plea improvident. 134
Deliberate or negligent omissions can amount to inadequate counsel.
The courts have extended the third view to cases where the defense counsel failed to raise applicable defenses. In United States v. Horne, 135 the Court of Military Appeals held that the counsel's failure to raise the defense of entrapment constituted inadequate representation.
d. The fourth view. In the 1970's, the Court of Military Appeals required counsel "to exercise the customary skill and knowledge which normally prevails... within the range of competence demanded of attorneys in criminal
126 Strickland v. Washington, 466 U.S. 668 (1984). "The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its
evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come
to be followed by a second trial, this one of counsel's unsuccessful defense."
127 19 C.M.R. 201 (C.M.A. 1955).
126 Id. at 214 (Quinn, C.J.. dissenting).
129 Id. at 217 (Quinn, C.J., dissenting).
133 See, e.g., United States v. McFarlane. 23 C.M.R. 320 (C.M.A. 1957) (counsel "conceded everything, explored nothing, was unprepared on every
issue, and made the least of what he had"); United States v. McMahan, 21 C.M.R. 31 (C.M.A. 1956).
131 United States v. Allen, 25 C.M.R. 8 (C.M.A. 1957).
132 United States v. Hamilton, 14 C.M.A. 117, 33 C.M.R. 329 (1963).
133 United States v. Rosenblatt, 32 C.M.R. 28 (C.M.A. 1962).
134 United States v. Rose, 30 C.M.R. 400 (C.M.A. 1961).
135 26 C.M.R. 381 C.M.A. 1958).
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33
DODDOA-009133

cases." 136 Thus, the accused was entitled to reasonably competent counsel whether that attorney is personally selected by the accused or appointed to represent him or her by the convening authority. 137 The "reasonably competent" standard was also applied by Federal courts at this time. 138
In 1977 the Court of Military Appeals dropped a bombshell in United States v. Rivas. 139 Not only must counsel be reasonably competent, but must also exercise that competence "without omission" throughout the tria1. 140 It was at first feared that the court was requiring defense counsel to be perfect. Subsequent cases, however, indicated a more reasonable view of how much perfection was required. 141
e. The last view? In 1982, the Court of Military Appeals reaffirmed the Rivas standard without mention of the "without omission" language. 142 The two-judge majority cited with approval and used the test for effectiveness from United States v. DeCoster, 143 a decision from the Federal system: "before an accused could prevail on the issue of ineffectiveness of counsel he had to demonstrate: (1) 'serious incompetency' on the part of his attorney; and (2) that such inadequacy affected the trial result." 144
This standard is clearly less strict than the Rivas standard. The adoption of the DeCoster language above was prophetic, however, because 2 years later the Supreme Court set down a standard for effectiveness. 145 Justice O'Connor, writing for the majority, determined that the ineffectiveness test is: whether counsel's conduct was "outside the wide range of professionally competent assistance;" and "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been differen ." 146
This standard takes some pressure off trial defense counsel. They should feel greater freedom in selecting trial tactics to fit the situation as they see it. 147 Their decisions are less likely to be second-guessed by appellate counsel reading a cold record of tria1. 148 Nevertheless, counsel should think through all their strategies and should be prepared to demonstrate both the deliberateness and the wisdom of various trial maneuvers. Counsel should maintain a detailed record of the number of client interviews, the duration of interviews, and the substance of what occurred during each interview. If counsel decides to follow a course of limited resistance, he or she should make a memorandum of the decision, setting forth the reasons for the decision. Finally counsel should make a thorough investigation for matters in extenuation and mitigation and be prepared to present. as many matters as appropriate.
136 United States v. Walker, 45 C.M.R. 150, 152 (C.M.A. 1972). See also United States v. Burwell, 50 C.M.R. 192 (A.C.M.R. 1975) (the court held the
accused was denied effective assistance of counsel when the defense counsel, during a 36-word argument before findings, conceded the accused's guilt
on one charge and failed to argue substantial defense evidence as to another charge); United States v. Galliard, 49 C.M.R. 471 (A.C.M.R. 1974)
(adequacy includes competency and application of it); United States v. Kloepfer, 49 C.M.R. 68 (A.C.M.R. 1974) (the negligence of defense counsel with
regard to polygraph examination of accused was declared ineffective assistance of counsel); United States v. Schroder, 47 C.M.R. 430 (A.C.M.R. 1973)
(counsel must exercise customary skill and knowledge which normally prevails in other records of trial that come before this court).

137 United States v. Zuis, 49 C.M.R. 150 (A.C.M.R. 1974).
138 Id. at 155.See, e.g., McMann v. Richardson, 397 U.S. 759 {1970).
139 3 M.J. 282 (C.M.A. 1977).
140 Id. at 289.
141 E.g., United States v. Watson, 15 M.J. 784 (A.C.M.R. 1983); United States v. Cooper, 5 M.J. 850 (A.C.M.R. 1978); United States v. Sublett, 5 M.J.

570 (A.C.M.R. 1978).
142 United States v. Jefferson, 13 M.J. 1. 5 (C.M.A. 1982).
143 624 F.2d 196 (D.C. Cir. 1979).
144 Id. at 5 (citing general guidelines from United States v. DeCoster, 624 F.2d 196, 208 (D.C. Cir. 1979)).
146 Strickland v. Washington, 466 U.S. 668 (1984). This standard was further applied to guilty plea challenges in Hill v Lockhart, 474 U.S. 52 (1985). The

Court of Military Appeals recognized Strickland in United States v. DiCupe, 21 M.J. 440 (C.M.A. 1986).

146
Strickland, 466 U.S. at 690, 694;see also United States v. Scott, 24 M.J. 186 (C.M.A. 1987) (civilian counsel's failure to promptly investigate and prepare accused's sole defense of alibi held to be ineffective assistance of counsel); United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985) (failure of counsel to notify convening authority of military judge's recommendation of suspension of punitive discharge held to be ineffective assistance of counsel); United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988) (civilian defense counsel's sexual and emotional involvement with his client was not ineffective assistance of counsel).
147 United States v. Haston, 21 M.J. 559 (.C.M.R. 1985).
148 Appellate counsel are also required to represent the accused effectively. United States v. Knight. 15 M.J. 202 (C.M.A. 1983).

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Chapter 6 Other Participants

6-1. Members of the public
Courts-martial are open to members of the public.' Winthrop states that this tradition dates back to the earliest military practices.2 The accused has a right to a public trial under the sixth amendment and the press and general public have a first amendment right to access to criminal trials. 3 The court has discretion to close the courtroom, however. 4 The Manual for Courts-Martial states that "Except as otherwise provided in this rule, courts-martial shall be open to the public."5
a. Exclusion for security reasons. If a case involves classified matters, the right to a public trial may be required to yield. Military courts have consistently held that members of the public may be excluded from those portions of courts­martial which concern sensitive, national security matters. 6 The procedures for such trials should, however, ensure that the trial will be both secret and fair.? The convening authority, of course, has the option to dismiss the charges in the event that disclosure of the information, even to a limited extent, would be detrimental to the national interest. 5
The trial should only be closed to the public for the limited time when classified matters are required to be disclosed.9 The Government should grant defense counsel any necessary security clearance. 10 The Court of Military Appeals has declared that:
We... hold... that... the accused's right to a civilian attorney of his own choice cannot be limited by a service­imposed obligation to obtain clearance for access to service classified matter... [Tjhe burden of choice rests upon the Government. It can permit the accused to be defended by his own lawyer, or it can defer further proceedings against him, or it can, for proper cause, disbar the lawyer presented by the accused from practice before courts­martial."
While the Government must grant the personnel participating in the secret sessions access to relevant classified information, the military judge will caution those personnel that they are not to divulge the information to unauthorized persons.' 2 The record of trial will be prepared in accordance with the Rules for Courts-Martial dealing with records of trial requiring security protection. 13
b. Exclusion for other good reasons. In United States v. Brown," the Court of Military Appeals interpreted the 1951 Manual provision authorizing exclusion for "other good reasons." The court held that the public may not be excluded solely because testimony concerns obscene matter, in that case indecent telephone calls. The court, however, provided guidance as to what constituted "good reason." The court stated that the following situations warrant exclusion of all or part of the public: to prevent overcrowding, the court may limit the number of spectators; the court may exclude disorderly persons; the court may exclude all spectators if the witness is a child who cannot testify before an audience; and the court may exclude youthful spectators if the testimony will concern scandalous or indecent matter.I 5 The public may also be excluded during a hearing , to determine the admissibility of a nonconsensual sexual offense victim's past sexual behavior. 16 But recent cases establish a stringent test and in each case an evidentiary hearing must be held. The
R.C.M. 806(a) (open to both military and civilian personnel). 2 Winthrop, Military Law And Precedents 161-62 (2d ed. 1920). 3 Waller v. Georgia, 467 U.S. 39 (1984); Press Enterprise v. Superior Court of California, Riverside County, 464 U.S. 51 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (198); United States v. Hershey, 2 M.J. 433 (C.M.A. 1985); United States v. Grunden, 2 M.J. 116 (C.M.A. 1977). 4 Mil. R. Evid. 412(c); 505(i), (j); 50(i). 5 R.C.M. 806(a). 'Opening courts-martial to public scrutiny reduces the chance of arbitrary or capricious decisions and enhances public confidence in the
court-martial process. -R.C.M. 806(b) discussion.
6 Grunden, 2 M.J. 116 (C.M.A. 1977); United States v. Harris, 18 C.M.A. 596, 40 C.M.R. 308 (1969); United States v. Gonzalez, 12 M.J. 747 (A.F.C.M.R.

1981); United States v. Kauffman, 33 C.M.R. 748 (A.F.B.R. 1963), affd in part, 11 C.M.A. 283, 34 C.M.R. 63 (1963); United States v. Neville, 7 C.M.R.
180 (A.B.R. 1952), petition denied, 7 C.M.R. 84 (1952).
7 Grunden, 2 M.J. 116 (C.M.A. 1977); United States v. Dobr, 21 C.M.R. 451 (A.B.R. 1956) (accused must be given access to and be allowed to present

any relevant classified information); Mil. R. Evid. 505(g).
8 Mil. R. Evid. 505(f).
9 Id.; United States v. Grunden, 2 M.J. 116 (C.M.A.1977).

10 .United States v. Nichols, 8 C.M.A. 119, 23 C.M.R. 343 (1957) (unless the attorney is barred from practice before courts-martial) Id. at 125, 23 C.M.R. at 349. What if the civilian layer refuses to apply for a security clearance?
12 Mil. R. Evid. 505(g). See also United States v. Baasel, 22 M.J. 505 (A.F.C.M.R. 1986) where nonattorney was used to screen classified information from the accused to his attorneys. 13 R.C.M. 1103(h), 1104(b)(1)(D). See generalyvVoodrutt, Practical Aspects of Trying Cases Involving Classified Information, The Army Lawyer, June
1986, at 7.
14 7 C.M.A. 251, 22 C.M.R. 41 (1956).
15 ld.United States v. Grunden, 2 M.J. 116 (C.M.A. 1977), narrowly circumscribed the scope of Brown. See also United States v. Michaud, 48 C.M.R. 379

(N.C.M.R. 1973) (right to a public trial is subject to the limitation that spectators having no immediate concern with the trial need not be admitted in such
numbers as to overcrowd the courtroom or displace space needed for those who do have special concern with the trial, and similarly, anyone whOse
conduct interferes in any way with the administration of justice may be removed).

16 Mil. R. Evid. 412(c)(2); but see Globe Newspaper Co. v. Norfolk, 457 U.S. 596 (1982) (cannot be automatic exclusion, must be determined on a case
by case basis).

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DODDOA-009135

party seeking closure of the court must "advance an overriding interest that is likely to be prejudiced; the closure must
be narrowly tailored to protect that interest; the trial court must consider reasonable alternatives to closure; and it must
make adequate findings supporting the closure to aid in review."I 7
Where there is no good reason for the direct exclusion of the public, the convening authority and military judge
should not attempt to exclude the public by the indirect means of conducting the trial at an unusual time or an isolated
place.I 8 A convenient time and place should be selected to permit the public to attend.

6-2. Representatives of the media
In Brown, the Court of Military Appeals noted that "the right to a public trial includes the right of representatives of the press to be in attendance." 19 There are limitations on this right, however. In both Estes v. Texas 20 and Sheppard v. Maxwel1,21 the Supreme Court noted that press coverage inside the courtroom can be so massive, disruptive, and distracting that the defendant is denied a fair trial. In Sheppard, the Supreme Court stated that the judge may limit the number of newsmen, exclude them from the bar, and generally regulate their conduct within the courtroom. 22 The right to a public trial is not only a right of the accused, but also in part a right of the public and the news media. The trial may be closed to the public and the news media only if an overriding interest is articulated by the judge that a fair trial for the accused is likely to be jeopardized. 23 Rule 53 of the Federal Rules of Criminal Procedure also places restrictions upon the aLtivity of newsmen within the courtroom. 24 The Manual provision is quite similar to Rule 53; the Manual provision reads "Video and audio recording and the taking of photographs-- except for the purpose of preparing the record of trial--in the courtroom during the proceedings and radio or television broadcasting of proceed­ings from the courtroom shall not be permitted." 25

6-3. Witnesses
In the military, the general rule is that witnesses are excluded from the courtroom except when testifying. 26 If a witness is not excluded, counsel is entitled, on request, to an instruction that in weighing the witness' testimony, the court members may consider the fact that the witness was present in court and had an opportunity to listen to the other witnesses. The military judge may further instruct the witness not to discuss his or her testimony with anyone except counsel or the accused. 27 If there is evidence that someone has attempted to influence the witness' testimony, the judge may order the witness' segregation. 28 Exceptions to the general rule permit expert witnesses to remain in the courtroom to hear testimony upon which their hypothetical questions will be based, 29 or a person "designated as representative of the United States by trial counsel or... a person whose presence is shown by a party to be essential to the presentation of the party's case." 30
The judge (or president of a special court-martial without a military judge) has discretion to limit the number of redirect and recross-examinations of witnesses by counsel and court members. When the counsel complete questioning the witness, the military judge may examine the witness. When the military judge completes the examination, the court members have an opportunity to pose questions. 31 The presiding officer may also permit a counsel who has rested to reopen the case to introduce previously omitted testimony. 32

6-4. Trial counsel
In a general court-martial, the trial counsel must be an attorney. 33 In a special court-martial the trial counsel may be a layperson. The trial counsel may be disqualified "in any case in which that person is or has been: (A) the accuser; (B)
17 United States v. Hershey, 20 M.J. 433 (C.M.A. 1985); see Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); see also United States v.
Travers, 25 M.J. 61 (C.M.A. 1987) (accused may bar the public from the court only if he can demonstrate an overriding interest that could justify closure).
'a JAG.) 1958/6100, 18 Aug. 1958.

19 7 C.M.A. at 258, 22 C.M.R. at 48.
20 381 U.S. 532 (1965).
21 384 U.S. 333 (1966).

22 ld.at 358. See Steward, Trial by the Press, 43 Mil. L. Rev. 37 (1969); United States v. Galley, 46 C.M.R. 1131 (A.C.M.R.), affd, 48 C.M.R. 19 (C.M.A.
1973).
23 Hershey, 20 M.J. 433 (C.M.A. 1985); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); but see Mil. R. Evid. 505, 506.
24 Fed. R. Crim. P. 53 (photographing and broadcasting proceedings).
25 R.C.M. 806(c). The military judge may permit closed-circuit video or audio transmission to permit viewing or hearing by an accused removed under

R.C.M. 804 or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators. 26 Mil. R. Evid. 615; R.C.M. 806(b) discussion.
27 Benchbook, para. 2-26.
29 SeeUnited States v. Bomer, 3 C.M.A. 306, 12 C.M.R. 62 (1953).
29 McCormick, Evidence § 14 (3d ed. 1984).

30 Mil. R. Evid. 615;see United States v. Ayala, 22 M.J. 777 (A.C.M.R. 1986) (no violation of rule excluding witnesses where criminal investigative agent

designated Government representative at trial and testified); see also United States v. Croom, 24 M.J. 373 (C.M.A. 1977) (Government psychiatrist found
essential to presentation of Government's case).
31 Mil. R. Evid. 614.

32 R.C.M. 917(c) discussion; Busch, Law And Tactics In Jury Trials § 269 (1949).
33 UCMJ art. 27; United States v. Daigneault, 18 M.J. 503 (A.F.C.M.R. 1984) (defects in appointment of trial counsel or qualifications are procedural
matters to be tested for prejudice).

DA PAM 27-173 • 31 December 1992. 37
DODD0A-0091 36
an investigating officer; (C) a military judge; or (D) a member." 34 Also, counsel who have acted for a party are disqualified from serving for an opposing party in the same case. 35
The trial counsel's general duty is to prosecute the case in the name of the United States. 36 The trial counsel's specific duties include: reporting procedural irregularities to the convening authority; correcting minor errors in the charges; notifying all court-martial participants of the date, hour, and place of meeting of the court; arranging for the presence of witnesses at the trial; obtaining a suitable room for the trial; supplying court members with stationery and a copy of the charges and specifications; proving each offense by competent evidence; making argument on the findings; introducing evidence in aggravation of the offense; making argument on the sentence; and supervising the preparation of the record of trial. 37
6-5. Reporter
Neither the Code nor the Manual impose any minimum legal qualifications for court reporters. A reporter is dis-.
(B) a witness; (C) an investigating officer; qualified, however, who "is or has been in the same case: (A) the accuser;
(D) counsel for any party; or (E) a member of the court-martial or of any earlier court-martial of which the trial is a rehearing or new or other trial." 38 Article 28 of the UCMJ authorizes the service secretaries to promulgate regulations governing the detail of court reporters. 39 The detail of reporters may be accomplished by the convening authority personally or through a staff officer. Such detail may be oral and stated on the record but need not be reflected in the court papers. 49 The Secretary of the Army has promulgated a regulation that court reporters may be detailed to only general courts-martial and special courts-martial authorized to adjudge a bad conduct discharge.'"
The reporter's duties are to record the proceedings during trial and to prepare the formal record of the trial 4 2 There is a presumption of regularity accompanying a proper authentication of the record of trial that the recorder has recorded the proceedings properly.43
6-6. Interpreter
If some of the testimony will be given in a language other than English, the convening authority or another staff officer may appoint an interpreter for the court." If the accused does not understand English, the military judge or president will direct that an interpreter be appointed for the accused. 45
Like the reporter, the interpreter may be disqualified for various reasons. 46 The interpreter is like other witnesses in that the interpreter must be sworn and counsel may dispute the accuracy of the testimony, in this case the translation. Counsel may cross-examine the interpreter or call other interpreters to show that the translation is inaccurate.'"
34 R.C.M. 502(d)(4).
35 Id.;but see United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987); United States v. Stubbs. 23 M.J. 188 (C.M.A. 1987) (all attorneys associated with an

individual who is disqualified are not disqualified from participating in a case).

36 R.C.M. 502(d)(5).
37 R.C.M. 502(d)(5) dicrusiory, see infra chap. 10, concerning detail of counsel.
38 R.C.M. 502(e)(2); United States v. Yarbrough, 22 M.J. 138 (C.M.A. 1986) (error for reporter to , be an accuser but since reporter never transcribed
record of trial, reversal not required); United States v. Tucker, 9 C.M.A. 587, 26 C.M.R. 367 (1958); United .States v. Moeller, 8 C.M.A. 275, 24 C.M.R. 85
(1957); United States v. McGee, 13 M.J. 699 (N.M.C.M.R. 1982) (no automatic reversal rule where "nominal' accuser serves as court reporter).
35 UCMJ art. 28.
4° United States v. Dionne, 6 M.J. 791 (A.C.M.R. 1978) (reporter function is purely a mechanical one).

41 AR 27-10, para. 5-11a.

42 R.C.M. 502(e)(3)(8).

43 United States v. Little. 44 C.M.R. 833 (A.F.C.M.R. 1971) (affidavit of defense counsel to the effect that the recorder failed to record repetitive questions
and part of the closing argument).
44 UCMJ art. 28.

45 R.C.M. 502(e)(3)(A). The accused may also retain an unofficial interpreter at no expense to the United States. Id. discussion.

46 R.C.M. 502(e)(2); United States v. Martinez, 11 C.M.A. 224, 29 C.M.R. 40 (1960).

47 Mil. R. Evid. 604.

38. DA PAM 27-173 • 31 December 1992
DODD0A-009137
Part Two
Jurisdiction

Chapter 7
Sources of Jurisdiction

7-1. General
Since the American Revolution, soldiers serving in the Armed Forces of the United States have been governed by laws designed to promote and maintain discipline and security within the military. In cases where a soldier in the Armed Forces has failed to comply with the law, the military has been empowered to exercise jurisdiction.' The sources authorizing the exercise of military jurisdiction in such cases may be divided under two headings:
a.
Constitutional provisions.

b.
International law.2

7-2. Constitutional provisions
The pertinent provisions of the United States Constitution serving as a source of military jurisdiction are found in the powers granted to the Congress, in the authority vested in the President, and in guarantees prescribed in the fifth amendment.3
a. Powers granted to Congress. Article I, section 8, grants in pertinent part, the following powers to Congress:
(1)
"[to] provide for the common Defense... "(clause 1);

(2)
"to constitute Tribunals inferior to the Supreme Court" (clause 9);

(3)
"to define and punish Piracies and Felonies committed on the High Seas, and Offenses against the Law of
Nations" (clause 10);

(4)
"to declare War ... and make Rules concerning Captures on Land and Water" (clause 11);

(5)
"to raise and support Armies" (clause 12);

(6)
"to provide and maintain a Navy" (clause 13);

(7)
"to make Rules for the Government and Regulation of the land and naval Forces" (clause 14);

(8)
"to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" (clause 15);

(9)
"to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States" (clause 16); and

(10)
"to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer
thereof' (clause 18). 4

b.
Powers granted to the President. Article II, section 2, designates the President as Commander in Chief of the Army and Navy and of the Militia when called into the actual service of the United States. 5 The President is thus vested with the power to wage wars declared by Congress and to implement the laws passed by Congress regarding the conduct of the war. The President is also charged with the responsibility of governing and regulating the Armed Forces, and of defining and punishing offenses relating to the Armed Forces and the conduct of war. 6 In addition, the Congress may grant specific authority to the President to assure additional responsibilities with regard to particular phases of military jurisdiction. 7

c. The fifth amendment.
(1) General. The fifth amendment provides in part that "[n]o person shall be held to answer for a capital, or otherwise infamous crimes, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces; or in the Militia, when in actual service in time of war or public danger." 8 This clause recognizes the
Jurisdiction has been defined many ways. A generally accepted definition of jurisdiction is 'the authority, capacity, power, or right to act." Black's Law
Dictionary 991 (4th rev. 1979). For the purpose of this text, jurisdiction of a military agency is the authority, capacity, power or right of that agency to act
judicially in a particular case. See also R.C.M. 201(a)(1) discussion.
2 MCM, 1984, Preamble at 1.

3 Courts-martial are not a part of the judiciary of the United States nor are they included among theinferior courts' which Congress may establish under
article Ill, section 1 of the United States Constitution.
4 U.S. Const. art. I, § 8.
5 See Swaim v. United States, 165 U.S. 553 (1897).

Ex page Quinn, 317 U.S. 1, 26 (142).
7 UCMJ arts. 36, 56. (Article 36 of the Uniform Code of Military Justice authorizes the President to prescribe the rules of procedure, including modes of
proof, to be 'used in military tribunals and Article 56 authorizes the establishment of maximum punishments.).

U.S. Const. amend. V.
40. DA PAM 27-173 • 31 December 1992
MAMA-009138
authority for trial of cases in the "land and naval forces" without a grand jury proceeding. 9
Meaning of "land or naval forces." (2)

(a)
Air Force. It is clear that the term"land or naval forces" includes all of the Armed Forces. Although not included
in a strict and literal sense, the Air Force does come within the purpose and intent of the exception; consequently, cases
arising in the Air Force are not subject to the requirement of grand jury proceedings. 19

(b)
Military commissions. Ex parte Quinn" involved a trial by military commission of saboteurs who landed on American shores during World War B. The Supreme Court held that military commissions were not subject to the fifth and sixth amendments. The Court's conclusion was based, not on the exception for "cases arising in the land or naval forces," but rather on the fact that trials by military commissions of enemy belligerents for violations of the law of war traditionally have been without jury. Because the purpose of the fifth amendment was to ensure jury trials only in those cases which traditionally had been tried by jury, the Court concluded that the amendment did not confer the right to trial by jury on enemy belligerents tried by military commissions for violations of the laws of war.I 2

7-3. International law
The sources of military jurisdiction in international law are the law of war, the visiting forces doctrine, and express agreements concerning jurisdiction.
a. Law of war. The law of war is merely a part of the broader field of international law and is a source of military jurisdiction."
b. Visiting forces doctrine.
(1) Manual provision. The discussion under R.C.M. 201 of MCM, 1984, provides in pertinent- part:
Under international law, a friendly foreign nation has jurisdiction to punish offenses committed within its borders
by members of a visiting force, unless it expressly or impliedly consents to surrender its jurisdiction to the visiting
sovereign. The procedures and standards for determining which nation will exercise jurisdiction are normally
established by treaty. See e.g., NATO Status of Forces Agreement, June 19, 1951, 4 U.S.T. 1792, T.I.A.S. No.
2846. As a matter of policy, efforts should be made to maximize the exercise of court-martial jurisdiction over
persons subject to the code to the extent possible under applicable agreements.I 4

(2) Source. The visiting forces doctrine as set forth in the Manual for Courts-Martial was first expressed by Chief Justice John Marshall in 1812 in The Schooner Exchange v. M'Faddon and others. 15 In The Schooner Exchange an armed French vessel had entered the port of Philadelphia to seek refuge from a storm. While the ship was there, a libel suit was instituted against it, claiming that the ship had been owned formerly 'by the petitioners and that it had been seized wrongfully and forcibly by the French Government. In dismissing the case, Chief Justice Marshall stated that:
[T]he Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of
the United States is at peace, and having entered an American port open for her reception, on the terms on which
ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come
into the American territory under an implied promise, that while necessarily within it, and demeaning herself in a
friendly manner, she should be exempt from the jurisdiction of the country.I 6

In support of his conclusion, Marshall reasoned that a public armed ship:
constitutes a part of the military force of her nation; acts under the immediate and direct command of the
sovereign; is employed by him in national objects. He has many and powerful motives for preventing those
objects from being defeated by the interference of a foreign state. Such interference cannot take place without
affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port,
may reasonably be construed, and it seems to the court, ought to -be construed as containing an exemption from
the jurisdiction of the sovereign, within whose territory she claims the rights of hospitality.I 7

9 See contra W. Winthrop, Military Law and Precedents 48 (2d ed. 1920) [hereinafter Winthrop (2d ed. 1920)]. This clause was once thought to be a grant
of authority to try persons not otherwise subject to military jurisdiction. The United States Supreme Court rejected this assertion in United States ex rel.
Toth v. Quarles, 350 U.S. 11, 23 n.22 (1955).
10 United States v. Naar, 2 C.M.R. 739 (A.F.B.R. 1951).
11 317 U.S. 1 (1942).
12 Id. at 40.
13 See Ex parte Quinn, 317 U.S. 1 (1942).
14 R.C.M. 201(d)3) discussion.
15 11 U.S. (7 Cranch) 116 (1812).
16 Id. at 147.
12 Id. at 144.
DA PAM 27-173 • 31 December 1992.
41
DODDOA-009139
Thus, The Schooner Exchange resolved the issue of whether a friendly foreign warship was immune from attach­ment by one claiming to be its owner.I 8 From this decision the visiting forces doctrine as described in R.C.M. 201(d)(3) discussion of the Manual for Courts-Martial is derived.
c. Express agreements concerning jurisdiction. The influence of the visiting forces doctrine has lessened as express agreements concerning jurisdiction have been entered into between the United States and countries in which United States troops are stationed. It is implicit that sending and receiving nations may regulate by express agreement jurisdiction over criminal offenses committed by visiting troops.I 9 The United States has entered into many such agreements in recent years. The first of these was the status of forces agreement between the members of the North Atlantic Treaty Organization concerning the status of their forces, popularly known as the "NATO SOFA." 2° The criminal jurisdiction provisions of this agreement have served as a model for many of the other agreements.
7-4. Exercise of military jurisdiction
a. General. Part I, paragraph 2 of the Manual classifies the exercise of military jurisdiction into four categories.
(1)
Jurisdiction exercised by a belligerent occupying enemy territory (military government);

(2)
Jurisdiction exercised by a government temporarily governing the civil population within its territory or a portion thereof through its military forces as necessity may require (martial law);

(3)
Jurisdiction exercised by a government in the execution of that branch of the municipal law which regulates its military establishment (military law); and

(4)
Jurisdiction exercised by a government with respect to offenses against the law of war. 21

b.
Military government. Military government is the exercise of supreme authority by an armed force over the lands, property, and inhabitants of occupied territory. Military occupation confers upon the invading force the means of exercising some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity for maintaining law and order among the inhabitants and the occupying force. In such situations the military force must exercise certain judicial powers.

In Mechanics' and Traders' Bank v. Union Bank, 22 the United States Army's power to exercise judicial powers over territory captured during the Civil War was challenged by the Mechanics' and Traders' Bank which had to pay a substantial judgment to the Union Bank as the result of a judgment rendered against it by a military government occupation court.
On appeal to the United States Supreme Court, the following issue was argued:
[W]hether the commanding general of the Army which captured New Orleans and held it in May 1862, had
authority after the capture of the city to establish a court and appoint a judge with power to try and adjudicate
civil causes. 23
In denying the challenge of Mechanics' and Traders' Bank, the Court upheld the constitutionality of the provost court set up by the commanding general to hear civil cases in the State of Louisiana. In reaching the decision the Court reasoned that:
[T]he power to establish, by military authority, courts for the administration of civil as well as criminal justice in
portions of the insurgent states occupied by the National forces, is precisely the same as that which exists when
foreign territory has been conquered and is occupied by the conquerors. 24
18 Schwartz,Intemational Law and the NATO Status of Forces Agreement, 53 Colum. L. Rev. 1091 (1953), concludes that there is no such clear-cut rule of immunity in international law. This conclusion is based on a memorandum prepared by the Attorney General of the United States, contained in 99 Con. Rec. 8762-70 (14 July 1953). The Attorney General's view is that the NATO Status of Forces Agreement relinquishes no inherent rights of the United States forces abroad, but rather affords them more immunity in the NATO countries than they would have had without the agreement. Id. at 1111. 18 Wilson v. Girard, 354 U.S. 524, 529 (1957). Such an agreement does not confer on United States military courts any jurisdiction over persons oroffenses not otherwise within their general jurisdiction. See United States v. Kinsella, 137 F. Supp. 806 (S.D. W.Va. 1956), rev'd sub nom. Kinsella v. Krueger. 354 U.S. 1 (1957), in which the district court suggested that the administrative agreement with Japan conferred jurisdiction on the court-martial over a United States civilian dependent accompanying the armed forces overseas in peacetime. The Supreme Court held that because such jurisdiction
was forbidden by the Constitution it could not be acquired by treaty. 20 Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty, TIAS 2846, 4 U.S.T. & O.I.A. 1792 ((signed at London, June 19, 1951), advice and consent of Senate obtained July 15, 1953, ratified by the President July 24, 1953, effective Aug. 23, 1953) [hereinafter referred to as 'NATO SOFA," or the-Agreement.") See also DA Pam 27-161-1,1ntemational Law," Vol. I at 210-25 (1964). The Agreement's provisions on criminal jurisdiction, and various problems with respect thereto, are discussed in J. Snee & A. Pye, Status of Forces Agreements and Criminal Jurisdiction (1957). See also The Judge Advocate General's School, U.S. Army, Ill Documents on International Law for Military Lawyers, Status of Forces (1969). MCM, 1984. Part I, para. 2(a); see Ex parte Milligan, 71 U.S. (4 Wall.) 2, 141-42 (1866). The first three categories were enumerated by Chief JusticeChase in this decision. 89 U. S.(22 Wall.) 276 (1875). 23 Id. at 294. 24 Id. at 296.
42. DA PAM 27-173 • 31 December 1992
DODDOA-009140
Thus, the Supreme Court in Mechanics' and Traders' Bank upheld the right of the military to establish courts in
insurgent territory with the power to exercise jurisdiction over civil and criminal cases.

The exercise of criminal jurisdiction by a military government court was challenged in Madsen v. Kinsella. 25 In
Madsen, a military government occupation court, established by the United States High Commissioner for Germany,
enforcing German law, was held to have jurisdiction to try the dependent wife of an Army officer for the murder of her
husband. The exercise of judicial power by the occupant was said to arise from the occupant's right to protect the
forces and from the occupant's duty, under international law, to maintain law and order in occupied territory. 26

In Bennett v. Davis,27 another case involving the exercise of criminal jurisdiction, the petitioner in a habeas corpus
proceeding challenged "the jurisdiction of the court-martial on the ground that Austria was a sovereign nation and
therefore had exclusive jurisdiction over the offense charged." 28

[At the time], Austria was occupied by military forces of the Allied and Associated Powers, as a part of conquered .
German territory, and remained so until the Austrian State Treaty became effective on July 27, 1955. 29

On review of the petition for habeas corpus, the Tenth Circuit Court of Appeals held that:
[I]n the absence of i.n executive agreement providing otherwise,... crimes committed in occupied foreign countries
by members of United States Armed Forces are subject to military law and within exclusive jurisdiction of
constituted military tribunals."

The accused in Bennett was held to be subject to the laws of the United States, the occupying force, and his conviction
was affirmed.

c. Martial law. In the United States martial law 31 is the exercise of governmental power, including judicial power, by military authority in an area where the domestic civilian government, including the courts, cannot function because of foreign invasion or civil insurrection. It is temporary in duration and ends when the control of the civil government is restored.32 A prominent distinction between military government and martial rule is that military government generally is exercised in the territory of, or territory formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of belligerent occupation. Martial rule is invoked only in domestic territory when the local government and inhabitants are not treated or recognized as belligerents. Martial rule over United States territory is governed solely by the domestic law of the United States. Only in those instances when civilian courts are not open and functioning may military tribunals be utilized.
This principle was firmly established in Ex parte Milligan,33 in which a military commission convened by the commanding general of the military district of Indiana had tried Milligan, a long-time resident of Indiana and a citizen of the United States. Milligan was convicted of conspiracy against the United States and sentenced to death. In a habeas corpus proceeding the Supreme Court, noting that "[n]o graver question was ever considered by this court," 34
set aside the conviction and held that military tribunals trying United States citizens in unoccupied domestic territory were without jurisdiction when civilian courts were open and functioning. The court stated: -
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly
applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer
criminal justice according to law, then, on the theater of actual military operations, where war really prevails,
there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the
army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws
can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is
continued after the courts are reinstated, it is a gross usurpation of power. 35

Because Indiana courts were operational and available to try Milligan at the time he was tried by military commission, the Supreme Court ruled that martial law was no longer in effect and that the military commission which tried the
25 343 U.S. 341 (1952). See alsoUnited States ex re/. Jacobs v. Froehlke, 334 F. Supp. 1107 (D.D.C. 1971).
26 343 U.S. at 358 n.13.
27 267 F.2d 15 (10th Cir. 1959).
28 Id. at 17.
29 Id. at 17-18 (footnotes omitted).
3° Id. at 18.
31 Also referred to as "martial rule."

32 Ex parte Milligan, 71 U.S. (4 Wall.) at 142 (1866) (•Martial law depends for its jurisdiction upon public necessity. Necessity gives rise to its imposition;
necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the legal propriety of the measures taken,
consequently, will depend upon the actual threat to order-and public safety which exist at the time.').
33 71 U.S. (4 Wall.) 2 (1866).

34 Id. at 118. 35 Id. at 127.
DA PAM 27-173 • 31 December 1992.
43
DODDOA-009141
accused lacked jurisdiction to try him.
d.
Military law. Military law is the jurisdiction exercised by the military establishment over its own members, and those directly connected with it under certain conditions, to promote good order and discipline. Military law is simply that body of federal statutes enacted by Congress, as implemented by regulations of the President and the armed services, and interpreted by the courts, governing the organization and operation of the armed services in peace and war. This system obviously requires that the military forces exercise judicial powers.

e.
Law of war. Military judicial powers may, under certain circumstances, be exercised under the law of war.

In Ex parte Milligan, 36 the Supreme Court, in addition to holding that the military commission was without jurisdiction on the basis of martial law, held that the tribunal could derive no jurisdiction from the law of war because Milligan was a citizen of a state in which the regular courts were open and their processes unobstructed. 37
In Ex parte Quirin, 38 the petitioners had been trained at a German sabotage school subsequent to the declaration of war between the United States and Germany. In June 1942 they landed in this country by submarine during the hours of darkness. Although the saboteurs were wearing military uniforms when they landed, all subsequently changed to civilian clothes and buried their uniforms. They later were apprehended by agents of the Federal Bureau of Investiga­tion and were tried by a military commission, appointed by the President, for violations of the law of war and certain Articles of War. All sought a writ of habeas corpus attacking the jurisdiction of the military commission. One of the petitioners claimed to be an American citizen and therefore entitled to the rights afforded by the Constitution.
The Supreme Court held that the military commission had authority to try violators of the law of war. The Court restricted Milligan to its particular facts, noting that Milligan had never become an enemy belligerent. Because the petitioners were enemy belligerents, they were subject to the law of war and could be tried by a military commission for violations thereof. 39 War crimes cases, including violations of international conventions, may be tried by interna­tional military tribunals as well as by the military tribunal of a single nation. An international military tribunal is merely the joint exercise, by the states which establish the tribunal, of a right which each of them was entitled to exercise separately in accordance with international law. For example, the Nuremberg Tribunal was established pursuant to an agreement entered into by the United States, the United Kingdom, France and the Union of Soviet Socialist Republics 40
7-5. Agencies through which military jurisdiction is exercised
Part I, paragraph 2(b) of the Manual states that military jurisdiction is exercised through military commissions and provost courts, courts-martial, certain commanding officers, and courts of inquiry.°
a. Military commissions. The military commission is a tribunal created to try persons, not members of the Armed Forces,42 for criminal offenses committed during a period of war or martial rule.
The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial
proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain
specific offenses defined in a written code. It does not extend to many criminal acts, especially of civilians,
peculiar to time of war; and for the trial of these a different tribunal is required 43

Military commissions or courts usually are appointed by theater commanders or subordinate commanders with delegated authority. They may be appointed by any field commander or commander competent to appoint a general court-martia1. 44 Winthrop called the military commission "the exclusively war- court." 45
(1) Authority and composition. The Uniform Code of Military Justice specifically recognizes the jurisdiction of military commissions with respect to offenders or offenses that by statute or by the law of war may be tried by such commissions,46 and expressly makes triable by military commissions and general courts-martial the offenses of aiding the enemy47 and spying.48 The military commission usually is composed of five officers, and it may impose any lawful penalty, including death. Subject to applicable rules of international law and to regulations prescribed by the President
38 Id. at 107.
37 Id. at 121-22.
38 317 U.S. 1 (1942).
33 See also In re Yamashita, 327 U.S. 1 (1946).
40 2 L. Oppenheim, International Law § 257 (7th ed. 1948).
41 MCM, 1984, Part I, para. 2(b).

42 Members of the "armed forces" include those captured members of the enemy's forces who are entitled to prisoner of war status under the 1949
Geneva Prisoner of War Convention.
43 Winthrop (2d ed. 1920), supra note 9, at 831.
44 See also supra note 6.
48 Winthrop (2d ed. 1920), supra note 9, at 831.
46 UCMJ art. 21.
47 UCMJ art. 104.
48 UCMJ art. 106.

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or other competent authority, military commissions are guided"by the applicable principles of law and rules of procedure and evidence prescribed for courts- martial." 49
(2) Historical background.
(a)
Mexican War. Military commissions were used by General Scott in 1847 during the occupation of Mexico. The commissions primarily tried Mexican nationals for serious civilian offenses and offenses against the occupying forces. Scott also convened"councils of war," apparently a reversion to the terminology and procedural limitations of the 19th century legislation for a few trials involving violations of the law of war. Winthrop notes, the"term 'council of war,' as a designation for a court, has not since reappeared in our law or practice." 5°

(b)
Civil War. It has been estimated that over 2,000 cases were tried by military commissions during the Civil War and the period of Reconstruction. 5 I The military commissions generally followed the principles and procedures applicable to trials by courts-martial. Military commissions were very popular and highly praised for their value and efficiency during the Civil War. 52

(c)
Reconstruction period. The first of the Reconstruction Laws authorized the general officer commanding each of the five districts into which the South was divided to try offenders by either "local civil tribunals" or "military commissions or tribunals." 53 As a general rule, trial was held by state courts and trials "by military commission under the Reconstruction Laws were in all not much over two hundred in number " 54

(d)
World War IL During and following World War II, enemy belligerents were tried by military commissions for violations of the law of war. 55 In Ex parte Quirin, 56 German saboteurs were tried by a military commission appointed by the President. In denying the saboteurs' petitions for writs of habeas corpus, the Supreme Court upheld the military commission's jurisdiction over the offenses and the President's power to lawfully order a military commission to hear the cases.

In the case of In re Yamashita, 57 the accused, a Japanese general, was convicted by military commission of a violation of the law of war. Pursuant to the orders appointing the commission, it considered depositions, affidavits, hearsay, and opinion evidence. The petitioner contended that the introduction of such evidence was a violation of the Articles of War. The Supreme Court held that the Articles of War and the rules of evidence prescribed pursuant thereto were not applicable to the trial of an enemy." The Court pointed out that Article of War 2, enumerating those persons subject to the Articles of War, did not include enemy combatants. 59 The Court specifically stated:
Congress gave sanction... to any use of the military commission contemplated by the common law of war. But it did not thereby make subject to the Articles of War persons other than those defined by Article 2 as being subject to the Articles, nor did it confer the benefits of the Articles upon such persons. The Articles recognized but one kind of military commission, not two. But they sanctioned the use of that one for the trial of two classes of persons, to one of which the Articles do, and to the other of which they do not, apply in such trials. Being of this latter class, petitioner cannot claim the benefits of the Articles, which are applicable only to the members of the other class.
Petitioner, an enemy combatant, is therefore not a person made subject to the Articles of War by Article 2, and the military commission before which he was tried ... was not convened by virtue of the Articles of War, but pursuant to the common law of war. It follows that the Articles of War... were not applicable to petitioner's trial and imposed no restrictions upon the procedure to be followed. The Articles left the control over the procedure in such a case where it had previously been, with the military command. 60
For these reasons, the Court held that General Yamashita was tried properly by military commission. The petitioner further claimed that the Geneva Convention of 1929 entitled him to be tried by the same rules of evidence as used in trials of members of the Armed Forces of the United States. Article 63 of that Convention provides
45 MCM, Part I, para. 2(b)(2).
5° Winthrop (2d ed. 1920), supra note 9, at 833, n.68.
5' Id. at 834.
52 Dig. Ops. JAG 1968, at 223-24. "So conspicuous had the importance of these commissions, and the necessity for their continuance become, that the

highest civil courts of the country had recognized them as part of the military judicial system of the government, and Congress, by repeated legislation,

had confirmed their authority, and, indeed, extended their jurisdiction' Id. at 224.
53 Act of Mar. 2, 1867, 'An Act to provide for the more efficient government of the rebel States, § 1, 14 Stat. 428. See (2d ed. 1920), supra note 9, at
848, for the text of the statute.

54 (2d ed. 1920), supra note 9, at 853.
55 The rules of evidence in the military commissions during this period were much less stringent than those prescribed for trials under the Articles of War.
For example, in appointing the military commission to try captured German saboteurs in 1942, President Roosevelt set forth the following criterion for
determining the admissibility of evidence: 'Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative

value to a reasonable man...." M.O. of July 2, 1942, 3 C.F.R. 1308 (1938-1943 comp.). See also In re Yamashita, 327 U.S. 1, 19 (1946).
56 317 U.S. 1 (1942).
57 327 U.S. 1 (1946).

58 Id. at 19.
55 But see UCMJ art. 2(9).
6° 327 U.S. at 20.

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that "Sentence may be pronounced against a prisoner of war only by the same courts and according to the same
procedure as in the case of persons belonging to the armed forces of the detaining Power." 61
The Supreme Court concluded that article 63 applied only to offenses "committed while a prisoner of war, and not
for a violation of the law of war committed while a combatant." That is, it applied only to post- capture and not to
precapture offenses. 62 Consequently, the laxity of the rules of evidence as applied by the military commission did not
violate the Geneva Convention of 1929.
(3) Limitations imposed by international law. Part I, paragraph 2(bX2) of the Manual incorporates the concept that military commissions will be subject"to any applicable rule of international law." Although not the sole source of applicable international law, the Geneva Conventions of 1949, where applicable, are the primary source of provisions of international law outlining procedures before a military commission. Under these Conventions certain stricter procedural requirements are specified for persons who qualify as prisoners of war under article 4 of the 1949 Geneva Prisoner of War Convention. Article 85 of that Convention provides that "Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention."63
The proceedings at the Diplomatic Conference clearly reflect that this provision was intended to apply to precapture offenses, as well as subsequent offenders, thereby obviating the holding in the Yamashita case." Among the "benefits" conferred by the Convention is article 102 which provides:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according
to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore,
the provisions of the present Chapter have been observed. 65
While international law publications of the Department of the Army" indicate that a prisoner of war may be tried by
a military commission if the procedural safeguards applicable in a United States court-martial proceeding are applied,
this conclusion is questionable as article 102 provides for trial by the "same courts." In any event, prisoners of war are
subject to court-martial jurisdiction under Article 2(a)(9) of the Uniform Code of Military Justice and may be tried by
court-martial in all instances. 67
The 1949 Geneva Civilian Convention, where applicable, imposes certain minimal standards upon military commis­sions.68 For example, if an accused protected by the Convention is charged with an offense for which punishment may be death or imprisonment for two years or more, notice concerning the particulars of the case must be given to the Protecting Power, a neutral nation appointed to safeguard the interest of a belligerent under the provisions of the Convention. The accused is entitled to qualified counsel and the right to petition against the finding and the sentence to higher United States authority. Generally, military commissions do not try ordinary criminal offenses against the law of war and enactments of the United States military authorities, and it is regarding these types of offenses that the provisions of the Convention become applicable.
b.
Courts-martial. The court-martial- is the most commonly used agency for the exercise of military jurisdiction.

c.
Commanding officers. Article 15 of the Uniform Code of Military Justice provides, that, for minor offenses, commanding officers may impose certain limited forms of nonjudicial punishment upon soldiers within their command without resort to a trial by court-martial. Generally, the consent of the soldier is required before the commander may proceed under article 15. 69 By using article 15, the commanding officer becomes another agency through which military jurisdiction may be exercised.

d.
Courts of inquiry. Article 135 of the Code authorize the appointment of courts of inquiry "to investigate any matter."70 A court of inquiry is a formal fact-finding tribunal and constitutes another agency through which military jurisdiction may be exercised.

61 Art. 63 1929 Geneva Convention.
62 327 U.S. at 21.
63 Art. 85, 1949 Geneva Civilian Convention.
64 See Ill Commentary On Geneva Convention Relative to the Treatment of Prisoners of War 413-27 (Pictet ed. 1960).
69 Art. 102, 1949 Geneva Civilian Convention.
66 FM 27-10, The Law of Land Warfare, para. 178b.

67 As it is not discussed elsewhere in this text, it should be noted that the 1949 Geneva Prisoner of War Convention explicitly provides for certain
procedural safeguards for prisoners of war, e.g., prohibition of double prosecution for the same act (art. 86), prohibition of ex post facto laws (art. 99),
prohibition of compulsory self-incrimination (art, 99), right to qualified counsel (arts. 99, 105), right of appeal (art. 106), the right to a speedy trial (art. 103).
provision for compulsory attendance of witnesses (art. 105), and that the prisoner of war, not being a United States national, is not bound to It by a duty
of allegiance (arts. 87, 100). See also other applicable procedural requirements in arts. 82-108 of this Convention.
" See arts. 52, 64-78, 117-28, 1949 Geneva Civilian Convention.

MCM, Part V, Pam. 3. 7° UCMJ art. 135(a).
46.
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Chapter 8 Nature of Court-Martial Jurisdiction
8-1. Nature of court-martial jurisdiction
a. Disciplinary character. Court-martial jurisdiction is entirely disciplinary in character.' Courts-martial are author­ized to consider only criminal cases 2 and can adjudge only criminal sentences. Courts-martial cannot adjudge civil remedies such as the payment of damages or the collection of private debts. 3
b. Effect of various factors on jurisdiction.
(1) Place of commission of the offense.
(a)
General. As a general rule, jurisdiction of courts-martial depends on the military status of the accused. 4 So long as the accused is a member of the armed forces at the time of the offense and the time of trial, the accused is subject to courts-martial jurisdiction. The fact that the offense was committed beyond the boundaries of the United States is not determinative of jurisdiction over the person, because Congress has provided in article 5 of the Uniform Code of Military Justice that the Code "applies in all places." Unlike the Federal courts, courts-martial are not required by article HI and the sixth amendment to try an accused in the place where the crime was committed. 5

(b)
Exceptions. Crimes and offenses not capital. The "crimes and offenses not capital" clause of article 134 of the Code authorizes the trial by courts-martial of armed forces personnel who commit offenses which are in violation of State or Federal laws, but not in violation of any other article of the Code. 6 When the civilian Federal statute is of limited geographical application, such as those noncapital crimes and offenses limited in their applicability to the special maritime and territorial jurisdiction of the United States or those included in the law of the District of Columbia, the offense must have been committed within the geographical area to which the particular statute applies to be cognizable under this provision of article 134. 7 It is important to note, however, that one accused of an article 134 violation of a Federal statute need not be tried by courts-martial in the geographical area where the statute is applicable. 8

Law of war. General courts-martial have the power to try all persons made subject to military jurisdiction by the laws of war.9 General courts-martial also have the power to:
try any person ... for any crime or offense against ... [title law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or in part by military authority of the occupying power. 10
In such cases the court-martial generally sits in the country where the offense is committed, and if the person tried is a protected person under the 1949 Geneva Convention, the court -martial must sit in the occupied country."
(2) Place of the trial. The jurisdiction of a court-martial does not depend upon where the court sits. 12 This rule was applied in United States v. Durant, 13 a case involving the theft of the Hesse Crown Jewels. In Durant the defense contended that the court lost jurisdiction by leaving Germany and convening tempo-arily in Washington, D.C. An Army Board of Review held that the court's leaving the command of the convening authority did not deprive it of jurisdiction. 14 It is now generally recognized that "[o]nce jurisdiction attache[s], the scene of the trial [isj not material so long as no prejudice to or change in the rights of the Petitioner result[s]." 15
R.C.M. 201(a)(1). 2 Id. at discussion. 3 Note, however, the authority of summary courts-martial to act as quasi-administrators of the affairs of deceased personnel, 10 U.S.C. §§ 4712, 9712
(1982), and to conduct an inquest, 10 U.S.C. 4711, 9711 (1982).
4 Solorio v. United States, 483 U.S. 435 (1987); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 241 (1960). See also Puhl v. United States, 376 F.2d 194, 196 (10th Cir. 1967); United States v. Schafer, 13 C.M.A. 83, 85-86, 32 C.M.R. 83. 85-86 (1962). 5 See R.C.M. 201(a)(3).a. United States v. Gravitt, 17 C.M.R. 249, 256 (1954) and United States v. Schreiber, 16 C.M.R. 639, 656 (A.F.B.R. 1954). In
these cases defense moved to change venue away from place of commission due to hostility and publicity. The courts argued that venue could be
changed away from the place of commission but denied relief on the facts.
6 UCMJ art. 134.
7 MCM, Part IV, para. 60(4(c).
8 R.C.M. 201(a)(3).
9 UCMJ art. 18; see also R.C.M. 201(1)(1)(B).
10 R.C.M. 201(f)(1)(B)(i)(b)•
11 Geneva Convention Relative to the Protection of Civilian Person in Time of War, Aug. 12, 1949, art. 66, 6 U.S.T. 3516, 3558, T.I.A.S. No. 3365, 75

U.N.T.S. 287. But cf. Ex parte Quinn, 317 U.S. 1 (1942) and Waberski, 31 Op. Att'y Gen. 356 (1918) which inferentially indicate that military commissions
trying offenders for violations of the law of war may sit in the United States.
12 See supra note 7.
13 73 BR (Army) 49 (1947) (CM 324235).

14 W. at 69-70.Accord, Durant v. Hiatt, 81 F. Supp. 948, 955-56 (N.D. Ga. 1948), affd, sub nom.Durant v. Gough, 177 F.2d 373 (5th Cir. 1949).
15 Perlstein v. United States, 57 F. Supp. 123, 127 (M.D. Pa. 1944), affd, 151 F.2d 167 (3d Cir. 1945),cert. granted. 327 U.S. 777 (1946), cert. dismissed
as moot, sub nom. Perlstein v. Hiatt, 328 U.S. 822 (1946).

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(3)
Absence of court members. The absence of a court member from a general or special court-martial does not deprive the court of jurisdiction to try the case so long as a quorum of the court members is present. Although the Supreme Court in Ballew v. Georgia, 16 held that a State criminal trial by a jury composed of five members deprives the accused of his right to trial by jury, the Army Court of Military Review has held that the requirement of a six-member jury does not apply to courts-martia1. 17 This is true whether the absence is authorizedis or unauthorized. I9 The convening authority may delegate to the staff judge advocate or some other principal assistant" the authority to excuse court members before assembly?' The delegate may not excuse more than one-third of the detailed court members. 22

(4)
Presence of enlisted soldiers as court members. Enlisted soldiers may serve as members of courts-martial if they are not members of the accused's unit, 23 and if the accused has made a request for enlisted soldiers to be included in the membership of the court. 24

The question of whether the convening authority may delegate the power to determine the specific enlisted soldiers to serve on the court has been addressed by the Court of Military Appeals. It reasoned that "a designated convening authority's power to appoint a court-martial is one accompanying the position of command and may not be delegated... "25 Because subordinate administrative personnel had added enlisted soldiers to the court panel from a master list, instead of allowing the convening authority to select them personally, the court-martial was without jurisdiction, for "[properly selected] court members are, unless properly waived, an indispensable jurisdictional element of a general
"26
court-martial...
In cases in which the accused has made a request for enlisted court members, at least one-third of the court membership must be comprised of enlisted soldiers. 27 In past years there has been litigation concerning the procedural aspects of submitting requests for enlisted soldiers, the selection process used for choosing enlisted court members and the failure of convening authorities to comply with specific requests of the accused that only certain ranks or races be selected as court members. 28
The failure of the trial record to indicate that an accused was advised of the right to have enlisted soldiers appointed as members of the court is not error. The counsel appointed to defend an accused enlisted soldier is required to advise the accused of this right; 29 the military judge' may presume that counsel has performed these required duties in the absence of any indication to the contrary." Note, however, that when a request for enlisted court members is properly executed prior to a trial which ends with the declaration of a mistrial and the request is never withdrawn and is specifically reaffirmed by the accused's counsel at the second trial, enlisted soldiers may be properly appointed to the second court without the submission of a new request for enlisted soldiers. 31 Military appellate courts have imposed numerous requirements regarding this request. First, the accused must be an enlisted soldier of the armed forces at the
16 435 U.S. 223 (1978).
17 United States v. Montgomery, 5 M.J. 832 (A.C.M.R. 1978). pet. denied, 6 M.J. 89 (C.M.A. 1978).
is UCMJ art. 29(a) (absence due to physical disability or as a result of challenge, or by order of the convening authority or military judge for good cause
shown on the record); see R.C.M. 505(c); United States v. Grow, 3 C.M.A. 77, 11 C.M.R. 77 (1953). Note that transfer of a court member of '.14e

command of the convening authority after a case has been referred for trial to the court does not deprive the court of jurisdiction. United States v.
Holstein, 65 BR (Army) 271 (1947) (CM 316193).
19 United States v. Roundtree, 38 C.M.R. 796, 798 (A.F.B.R. 1967); United States v. Patterson, 30 C.M.R. 478, 479 (AA:1.R. 1960) c(r)he unauthorized
absence of a member of the court would not be sufficient grounds for appeal unless it could be demonstrated that such absence materially or
substantially prejudiced the rights of the accused."); see also United States v. Cross, 50 C.M.R. 501 (A.C.M.R. 1975) (military judge's excusal of court
member without approval of convening authority was neither jurisdictional nor prejudicial error). Contra, United States v. Colon, 6 M.J. 73 (C.M.A. 1978)

(prejudicial error for military judge to proceed to trial without presence of 40% of the detailed members who were not excused by the convening authority).
Note, moreover, that the unexplained absence of a court member after reassembly is prejudicial. United States v. Boehm, 38 C.M.R. 328 (C.M.A. 1968);
United States v. Greenwell, 31 C.M.R. 146 (C.M.A. 1961). If no reason for the members absence appears in the record, an appellate court will not
assume the absence was for good cause. United States v, Boehm, 38 C.M.R. 328, 334 (C.M.A. 1968). Where a court member is absent. after
arraignment, the Government has the duty to demonstrate in the record the reasons for such absence and to establish affirmatively that it faits within the
provisions of the Code and failure to explain such absence in the record is prejudicial error requiring a rehearing. United States v. Greenwell. 31 C.M.R.
146 (C.M.A. 1961). Ci United States v. Stephenson, 2 C.M.R. 571 (N.B.R. 1951) (failure to swear court members and personnel of the prosecution and
the defense divests the court-martial of jurisdiction).

20 R.C.M. 505(c)( 1 )(B)(i); AR 27-10, para. 5-18c (22 Dec. 1989).
21 R.C.M. 505(c).
22 R.C.M. 505(c)(1)(B)(ii). The selection of the court members, however, is still the responsibility of the convening authority. See generally United States v.
Carmen, 19 M.J. 932, 935 (A.C.M.R. 1985).

23 But see United States v. Wilson, 21 M.J. 193 (C.M.A. 1986) (accused waived this personal disqualification).
24 UCMJ art. 25(c)(1); R.C.M. 503(a)(2);see McClaughry v. Darning. 186 U.S. 9, 62 (1902) (wherein Justice Peckham stated that, 'A court-martial is the
creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is
without jurisdiction."); United States v. Brookins, 33 M.J. 793 (A.C.M.R. 1991) (jurisdiction was lacking when record of trial failed to reveal oral or written
request for enlisted membership when enlisted members were present on the panel).

25
United States v. Ryan, 5 M.J. 97, 100 (C.M.A. 1978).
26 Id. at 101.
27 But see R.C.M. 503(a)(2) when physical conditions or military exigencies preclude obtaining the requested enlisted court members.
28 See, e.g., United States v. Credit, 2 M.J. 631 (A.F.C.M.R. 1976), rev'd on other grounds, 4 M.J. 118 (C.M.A. 1977) (challenge to court member based

upon religion).
29 R.C.M. 502(d)(6) discussion.
30 United States v. Lutman, 37 G.M.R. 892, 900 (A.F.B. 1967).
31 United States v. Williams, 50 C.M.R. 219 (A.C.M.R. 1975).

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time of the request; thus, a dishonorably discharged prisoner in confinement is not entitled to enlisted soldiers on a court-martial appointed to try him or her for offenses committed in confinement although he or she had formerly been an enlisted soldier. 32 Furthermore, the accused must personally make this request: oral or written request by defense counsel is insufficient. 33 The requirement was "enacted to make very certain that no person other than an accused could cause the presence of enlisted members on a panel... [T]he language used is ... clearly indicative of the mandatory feature of the provision... " 34 the request is not made personally, the convening authority is without statutory authority to designate the enlisted soldiers and the court is without jurisdiction to proceed. 35
In some cases where the accused has requested that enlisted soldiers be included in the membership, defense counsel have challenged the court-martial's jurisdiction to try the accused on the ground that the appointed court-martial does not consist of one-third enlisted soldiers.
If the court-martial has not proceeded to the presentation of the prosection case, the military judge may permit the prosecution to use its unused peremptory challenge to bring the court-martial membership within the statutory requirements. While defense counsel have objected to a military judge's permitting Government counsel to use a peremptory challenge in this manner, the appellate courts have upheld the practice. In such cases the reviewing courts have stated that the appropriate time for determining the officer-enlisted ratio is when evidence is actually taken in a case,36 and not when the court is appointed, assembled, or sworn. In this regard a Navy Board of Review has stated that:
It was the manifest intent of Congress to grant an accused the right, if he so desired, to have the evidence weighed, his guilt determined, and his punishment fixed by a court-martial composed, in designated part, of military personnel of his own [enlisted] status. The provisions of the Code and of the Manual, in our opinion, simply guarantee that an accused will not be "tried" by a court without the required officer-enlisted ratio. The trial of an accused consists only of the joining of issues by arraignment and plea, the hearing and weighing of evidence in determining of those issues, the disposition of interlocutory questions arising during such determination, the resolution of the issues joined in the findings of the court, and of the imposition of a just, legal, and appropriate sentence. The trial of the accused does not include those preliminary proceedings whereby the court is organized, its eventual membership tested and determined by challenge and excuse, and by which it is qualified and sworn. 37
An Air Force Board of Review 38 and an Army Court of Military Review39 similarly have held that the proper time for determining the officer-enlisted ratio is at the time of actual trial and not at the time of preliminary proceedings.
In requesting that enlisted soldiers be included in the membership of a court, soldiers sometimes request that the convening authority select only lower ranking enlisted soldiers. Such a request was presented in United States v. Catlow4° where the accused, an El, submitted a request worded in part as follows:
Pursuant to Article 25(c) MCM [sic], the accused, THOMAS CATLOW, hereby requests that he be tried by a Court-Martial Board comprised of his peers, and pursuant to the aforesaid section he demands that said Court-Martial Board be comprised totally of enlisted members of equal rank or a rank not greater than the highest rank at any time held by the accused. 41
The convening authority treated the accused's request as a request for enlisted soldiers and selected a court-martial consisting of five officers and three enlisted soldiers: a sergeant major, a first sergeant and a specialist four.
On appeal to the Army Court of Military Review, the accused argued that the court-martial lacked jurisdiction because the convening authority failed "to comply with all of the conditions specified in the request... "42 In denying the accused's allegation, the court found that the convening authority properly treated the accused's request for enlisted soldiers as divisible, "that is, one for enlisted membership within the requirements of article 25(c)(1) and another for a total membership of enlisted persons of the lowest grade." 43 The court further concluded that the convening authority's selection of enlisted soldiers was proper, absent an indication on the part of the accused that the request was to be disregarded if the specified conditions included in the request were not honored.
32 United States v. Ragan, 32 C.M.R. 913 (A.F.B. 1962).
33 United States v. Warren, 50 C.M.R. 357 (A.C.M.R. 1975).
34 United States v. White, 45 C.M.R. 357, 362 (C.M.A. 1972).
35 In Asher v. United States, 46 C.M.R. 6 (C.M.A. 1972) the court gave retroactive effect to the Whiteholding. See also Gallagher v. United States, 46

C.M.R. 191 (C.M.A. 1973).
36 United States v. Rendon, 27 C.M.R. 844, 847 (N.B.R. 1958).
37 Id. at 847.
38 United States v. McCaffity, 2 C.M.R. (AF) 25, 29 (1949).
38 United States v. Smith, 42 C.M.R. 366 (A.C.M.R. 1970).
4° 47 C.M.R. 617 (A.C.M.R. 1973).
41 Id. at 620.

42 id.
43 Id.
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In United States v. Timmons,'" the accused, a seaman recruit, submitted a request that enlisted personnel be included as members of the panel in his court-martial, and in addition, that "enlisted members [selected] be of a rank of E-4 or below, and be supplied from my unit, the Fleet Training Center." 45 The convening authority treated the accused's request as one for a court composed of enlisted members and selected an appropriate number of enlisted members from units different than the accused's to sit as members in the accused's court-martial.
At trial, the accused challenged the convening authority's failure to select enlisted members from the Fleet Training Center in a motion requesting dismissal of the "charges against him on the grounds that Article 25(c)(1), Uniform Code of Military Justice, in prohibiting enlisted members from his own unit from sitting on his court-martial, denied him equal protection under the Constitution of the United States." 46 On denial of the motion, the accused requested trial by military judge alone.
On appeal, the accused alleged that he "was denied his fifth amendment right to due process of the law when enlisted men from his own unit were denied participation as members of his court." 47 In addition, the accused argued that:
Article 25(c)(1), Uniform Code of Military Justice, "discriminates against enlisted men as a class and against him
in particular, because it amounts to a deprivation of trial by peers (i.e., other men from his own unit); while at the
same time it allows an officer to be tried by a court of peers (i.e., other officers from his own unit)." 48

A Navy Court of Military Review rejected these arguments and held that the accused's court-martial was properly constituted under the provisions of article 25(c)(1) of the Code. In reaching its decision, the court concluded that the convening authority acted properly in ignoring the accused's request regarding the selection of enlisted members only from his unit. In addition, the court concluded that the accused's fifth amendment right to due process was not violated by the provisions of article 25(cX1) which required the exclusion of enlisted members of the accused's unit from serving on the membership of his court-martial.
In addressing the accused's allegations of error, the court briefly summarized the legislative history surrounding article 25(c)(1) and its provisions granting an enlisted accused the right to request appointment of enlisted members, other than those of their own unit, to serve as members of a court-martia1. 49
In reviewing the legislative history of article 25(c)(1) the court noted that no references existed to explain why Congress decided to exclude soldiers of an accused's unit from serving as jury members in cases in which enlisted soldiers were requested. 5° The court, however, concluded that, "Congress probably made this distinction for the purpose of avoiding bias or prejudice either for or against an accused which experience had shown was likely to develop in an integrated body of troops where the members worked and lived in close association with each other." 5 I In support of its conclusion, the court noted that an Army Board of Review had made a similar finding in 1957. 52
Enlisted soldiers have challenged the propriety of convening authorities selecting only senior ranking enlisted soldiers to serve as enlisted court members. The issue was presented to the United States Court of Military Appeals in United States v. Crawford. 53
In Crawford, the accused, a private E2, was tried by general court-martial before a court of officers and enlisted soldiers. On appeal, the accused alleged that the convening authority's selection of the enlisted court members, three sergeants major and one master sergeant was improper.
In deciding "whether the method by which enlisted court members were selected discriminated against the lower
44 49 C.M.R. 94 (N.C.M.R, 1974).

45 id.
46 Id. at 94-95.
47 Id. at 94.
45 Id. at 95.
43 Id. In part, the court stated:

Originally, in this country, dating back to the War of Independence and until 1948, participation as members in courts-martial was limited to officers.
The use of officer court members, in fact, predates our Constitution. It was not until 1948 that membership on the court was broadened to include, at
the request of an accused, some enlisted members of units other than the accused's unit. Elston Act, Public Law 759, 80th Congress, 62 Stat. 604,
approved June 24, 1948. This same provision, with minor changes, carried over into Article 25(c)(1), Uniform Code of Military Justice, which was
passed in 1950.

5° Id. Accord United States v. Crawford, 35 C.M.R. 3passim (C.M.A. 1964).
5' United States v. Timmons, 49 C.M.R. 94, 95 (N.C.M.R. 1974).
52 Id. (quoting United States v. Scott, 25 C.M.R. 636, 640 (A.B.R. 1957), as follows:

The eligibility criteria governing the appointment of enlisted members of court-martial seems obviously designed to insure the selection of individuals
who are free from bias or prejudice arising from a previous close association with the accused, or from a possible mental identification with the
supposed interests of his unit in the disposition of the case).

53 35 C.M.R. 3 (C.M.A. 1964).
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enlisted ranks in such a way as to threaten the integrity of the courts-martial system and violate the Uniform Code of
Military Justice,"54 the court carefully reviewed the procedures followed by the convening authority in selecting the
enlisted soldiers and extensively reviewed the law applicable to the selection of enlisted soldiers to serve on military
courts-martial.
In upholding the selection process in Crawford, Chief Judge Quinn noted that "the Uniform Code [of Military
Justice] gives [convening authorities great] discretion in selecting [which persons are] best qualified for the duty by
reason of age, education, training, experience, length of service and judicial temperament." 55 With respect to the
procedures followed by the convening authority in selecting the enlisted soldiers who served on the accused's court­
martial, Chief Justice Quinn concluded that "[t]here was no desire or intention to exclude any group or class on
irrelevant, irrational, or prohibited grounds." 56 He concluded further that "the evidence leaves no room to doubt that
the selection process was designed only to find enlisted men qualified for court service." 57 In Chief Judge Quinn's
opinion, a convening authority could look to senior noncommissioned officers in an effort to find qualified personnel to
serve as enlisted court members.
In Crawford, the accused also alleged that the convening authority's intentional selection of a black senior noncom­missioned officer to serve as a court member was improper. The facts in Crawford revealed that because the accused was black and was charged with assaults against white soldiers, a deliberate effort was made on the part of the staff judge advocate and the convening authority to find a black senior noncommissioned officer to serve as a court member in the accused's court-martial.
In holding that "there was no error in the deliberate selection of a Negro to serve on the accused's court-martial," 58
Chief Judge Quinn reasoned that the conscious decision on the part of the convening authority to include a member of the accused's race on the membership of the jury which tried the accused, was "discrimination in favor of, not against [the] accused."59 In reaching his decision, Chief Judge Quinn distinguished a Fifth Circuit Court of Appeals decision which had granted a writ of habeas corpus to a black accused from Louisiana, who alleged that he had been indicted improperly by a grand jury panel which had been selected from a list of 20 persons, six of whom were blacks whose names had been added deliberately to the list. It was Chief Judge Quinn's opinion that in reaching the decision in Collins the Fifth Circuit failed properly to differentiate between the practice of inclusion and exclusion of minorities from jury service. 60
In a concurring opinion, Judge Kilday agreed with Chief Judge Quinn's decision regarding the legality and propriety of the convening authority's selecting senior noncommissioned officers and a black noncommissioned officer to serve on the accused's court-martial. It was Judge Kilday's opinion, however, that an accused must allege some abuse of discretion on the part of the convening authority in selection of court members if a challenge to the selection process is to be regarded as meritorious. In Crawford, Judge Kilday noted that there was no evidence or allegation that the convening authority abused his discretion in selecting senior noncommissioned officers to serve on the accused's court­martial. Accordingly, Judge Kilday concluded that the accused failed to allege an error in raising the issue. 61
In dissent, Judge Ferguson argued that the United States Supreme Court has "consistently struck down systematic, arbitrary, and discriminatory exclusion of classes from jury service, when it appears that such classes meet the .qualifications for service under the statutes involved." 62 As examples, he noted the. Supreme Court's reversal of cases involving the systematic exclusion of blacks and wage earners from jury service. 63 He argued the systematic exclusion of lower ranking noncommissioned officers and other ranks from selection as court members serves to undermine the court-martial system thus making the court-martial simply an instrument of the higher ranks, and contended that the preparation and use of selection lists is improper. In his opinion, the use of such lists, which contain only the names of senior ranking noncommissioned officers, in effect rendered the statutory language of article 25(c)(1) permitting"[a]ny enlisted member ... to serve on general and special courts-martial" meaningless 64
Lastly, Judge Ferguson criticized the deliberate selection of a black court member by the convening authority because the accused was black. In part, he stated that:
[The detailed and arduous quest for a Negro member of the court, selected solely on the basis of his race,
establishes beyond cavil that the ugly fact of race was considered, at least in this jurisdiction, to be the standard by
54 Id. at 5. 55 Id. at 18. 56 Id. at 12. 57 Id. 58 Id. at 13.
59 Id.
60 Id. Chief Judge Quinn's view was ultimately adopted by the Fifth Circuit in Brooks v. Beto, 366 F2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975,reh'g
denied, 386 U.S. 1043 (1967).
61 35 C.M.R. at 13-21 (Kilday, J., concurring).
62 Id. at 2 (Ferguson, J., dissenting).
63 Id. at 27-28 (Ferguson, J., dissenting) citing Norris v. Alabama, 294 U.S. 587, 599 (1935) and Thiel v. Southern Pac. Co., 328 U.S. 217, 225 (1946).
64 Id. at 28-29 (Ferguson, J. dissenting).

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which military jurors should be selected in the case of Negro defendants. I would not hesitate to strike this
practice down and remind commanders everywhere that neither race, nor color, nor creed, enter into the adminis­
tration of any American judicial system. 65
In subsequent cases, the Court of Military Appeals upheld the practice of convening authorities considering only
senior ranking noncommissioned officers for selection to serve as court-martial members on the grounds that it is
reasonable to assume that "the attainment of senior rank gives fair promise of the possession of the qualities specified
in the Code as desirable for court members." 66
But in United States v. Daigle, 67 the court held that "[w]hen rank is used as a device for deliberate and systematic
exclusion of qualified persons, it becomes an irrelevant and impermissible basis for selection." 68
An accused is permitted to submit a request for the appointment of enlisted soldiers to serve on his or her court­
martial anytime before the conclusion of the article 39(a) session or the assembly of the court. 69
The issue of whether an accused is allowed to withdraw the request for the appointment of enlisted soldiers to serve on the court-martial was settled in United States v. Stipe. 7° In Stipe, the accused chose to be tried by a court-martial consisting of officers and enlisted soldiers. In accordance with the provisions of article 25(cX1), the accused requested that enlisted soldiers be appointed to serve on his court-martial. In response to his request, the convening authority selected nine officers, one sergeant major (E9), one master sergeant (E8) and two sergeants first class (E7) to serve as jury members on the accused's court-martial.
At the article 39(a) session, the accused "contended that the enlisted soldiers of the court had not been selected on
the basis of age, education, training, experience, length of service, and judicial experience as required by Article
25(d)(2), UCMJ... "71 and he therefore asked to withdraw his request for enlisted court members. The military judge
refused to allow the accused to withdraw his request. The accused subsequently was tried by a general court-martial
before a court composed of officers and enlisted soldiers.
On appeal, the accused argued that the military judge improperly denied his right to withdraw his request for enlisted soldiers. The Court of Military Review ruled that the military judge did not abuse his discretion in refusing to allow the accused to withdraw his request. 72 The United States Court of Military Appeals reversed the Court of Military Review's decision and held that the military judge was in error in denying the accused "the right to revoke his prior election to have enlisted members serve on the court before the end of the Article 39(a) session... "73 In reaching its decision, the court noted that under the provisions of article 25(c)(1) an accused is free to request enlisted soldiers but should be permitted to withdraw a request for trial by enlisted soldiers anytime prior to the end of the article 39(a) session or before the assembly of the court. 74 In so ruling, the court noted that such an interpretation was reasonable and consistent with congressional intent "to leave the accused a free choice in the manner" 75 until the time of trial.
If the accused has withdrawn the request for enlisted soldiers, the record should reflect the withdrawal and should clearly show that the accused was fully advised of his or her rights and was in no way influenced by the Government in withdrawing this request. 76
In submitting a request for enlisted court members, an accused cannot require the convening authority to select only enlisted soldiers from a particular unit, rank or race. Nor does the accused have the right to require a convening authority to select a court-martial panel consisting totally of enlisted soldiers. 77
Thus, while an accused cannot require the convening authority to select a particular kind of enlisted soldier, the accused can require that the enlisted soldiers be fairly and impartially selected. The exact nature of fair and impartial selection has been addressed by numerous courts. Although the deliberate, systematic exclusion of qualified soldiers on the basis of rank alone is contrary to the Code, 78 the Army Court of Military Review held in United States v. Yager, 79
66 Id. at 31 (Ferguson, J., dissenting).
" United States v. Mitchell, 35 C.M.R. 31, 32 (C.M.A. 1964); see also United States v. Ross, 35 C.M.R. 36 (C.M.A. 1964); United States v. Pearson, 35
C.M.R. 35 (C.M.A. 1964); United States v. Glidden, 35 C.M.R. 34 (C.M.A. 1964); United States v. Motley, 35 C.M.R. 33 (C.M.A. 1964); United States v. Glidden, 34 C.M.R. 577 (A.B.R. 1964).
67 1 M.J. 139 (C.M.A. 1975).
68 Id. at 141.See also United States v. Nixon, 33 M.J. 433, 435 (C.M.A. 1991) ("military grade by itself is not a permissible criterion for selection of court­martial members"); but see United States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of personnel below E3 for failing to satisfy criteria of article
25(d)(2) is permissible).

ss R.C.M. 903(a)(1).
7° 48 C.M.R. 267 (C.M.A. 1974).
71 United States v. Stipe, 47 C.M.R. 743, 744 (A.C.M.R. 1973).
72 Id. at 746.
73 United States v. Stipe, 48 C.M.R. 26, 269.
74 Id. at 28; seeR.C.M. 903(d).
75 Stipe, 48 C.M.R. at 269.

76 See United States v. Lutman, 37 C.M.R. 892, 900-01 (A.F.B.R. 1967). The accused never requested enlisted soldiers and the record failed to indicate
whether he was ever advised of his rights. The court held it was presumed that he was advised by his counsel, and thus there was no error. The court
stated that having the record reflect the accused's knowledge of his rights was a 'prudent, albeit anticipatory, trial procedure...." Id.
77 See generally Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Cath. U.L. Rev. 171 (1966).
76 United States v. Daigle, 1 M.J. 139 (C.M.A. 1975).
79 2 M.J. 484 (A.C.M.R. 1975), affd, 7 M.J. 171 (C.M.A. 1979). .

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that the exclusion of enlisted soldiers in the grade of private is permissible. This exclusion was reasonably and rationally calculated to obtain jurors who met the statutory requirements of sufficient age, education, training, experience, length of service and judicial temperament. Furthermore, the exclusion of privates sprang from a recogni­tion that privates are not senior to any other soldiers. Under article 25(d)(1) of the UCMJ a soldier of junior rank should not be allowed to try his senior except in unavoidable situations. Similarly in United States v. Per1, 80 a selection process was not improper even though it excluded privates. The Army Court of Military Review also addressed the issue of whether fair selection had been obtained even though the Government's administrative regulations, which were more stringent than the requirements under the Code, had not been followed. It reasoned that no prejudice had occurred, because the regulation was promulgated for the benefit of the Government and was not intended to confer any basic rights on accused soldiers.
(5) Absent or unauthorized military judges and counsel. A court-martial that is constituted illegally does not have jurisdiction over the cases it is convened to try.81 A court may be constituted illegally if either the military judge or counsel are absent or participate without authorization. For example, if a military judge is present but a question arises as to whether he was appointed and by whom, there is jurisdictional error. 82
Furthermore, if the military judge is improperly appointed, jurisdictional error will result. The Court of Military Appeals found jurisdictional error when the military judge who presided over the trial was not the judge appointed by the orders which convened the court-martia1. 83 It also found error in a case in which the convening authority delegated power to a subordinate officer to detail the military judge and counsel." If Congress meant for this duty to be delegated, it would have expressly provided for such delegation. 85 Since Congress had not specifically provided for the delegation of this duty, the improper delegation was a fatal error. When two military judges have been appointed, the Court of Military Appeals has upheld convictions if only one judge presided and the accused was aware prior to trial of the identity of the military judge. 86 Finally, jurisdictional error resulted where the convening authority, without a showing of good cause, replaced the military judge after the assembly of the court-martia1. 87
The Military Justice Act of 1983 amended article 26, UCMJ, so that the convening authority no longer must personally detail a military judge. 88 The detailing of a military judge is now the responsibility of the chief trial judge of the United States Army Trial Judiciary, 89 who has delegated the authority to all military judges certified to preside over general courts-martial and who are assigned to the United States Army Trial Judiciary." Thus, the detailing of the military judge to a court-martial created by a convening authority is a judiciary responsibility. 9I An orally announced detailing is sufficient for jurisdictional purposes but the detailing decision should be reduced to writing and included in the record of tria1. 92
The presence of unauthorized counsel may also lead to jurisdictional error. In United States v. Coleman, 93 detailed defense counsel previously had been assigned on orders as trial counsel. Although the accused accepted the officer detailed as his defense counsel, and although the counsel was not disqualified by participation as a member of the prosecution, the Court of Military Appeals reversed. Not only had the convening authority failed to delete the counsel's previous appointment as trial counsel, but there was also no indication that the convening authority had ever officially appointed him as defense counsel. In United States v. Williams," however, the Court of Military Appeals affirmed the conviction of an accused whose individual counsel erroneously was listed as trial counsel. The court distinguished Williams from Coleman on the grounds that an accused's individually selected counsel need not be listed in the orders
80 2 M.J. 1269 (A.C.M.R. 1976).
81 See, e.g., United States v. Johnson, 48 C.M.R. 665 (C.M.A. 1974).
82 In United States v. Singleton, 45 C.M.R. 206 (C.M.A. 1972), the charges had been referred to trial by a special court-martial empowered to adjudge a

bad-conduct discharge. The convening authority, however, had not appointed either military judge, trial counsel, or defense counsel on the court-martial
convening orders, although members were appointed. At trial, the military judge and both counsel stated that they had been verbally appointed by the
convening authority subsequent to the issuance of the convening orders. The Court of Mititary Appeals reversed, however, as the record was void of any
indication as to The contents of the oral appointment, when it was made or by whom "Id. at 208. That the trial had been by military judge alone, instead
of before the detailed court members, may have affected the result.
83 United States v. Johnson, 48 C.M.R. 665 (C.M.A. 1974). Accord, United States v. Debord, 46 C.M.R. 808 (A.C.M.R. 1972).

84 United States v. Newcomb, 5 M.J. 4 (C.M.A. 1978). This holding that a court-martial is improperly constituted when military judge and counsel are
assigned by improper authority was held to apply prospectively only to those cases convened after May 1, 1978. United States v. Mixon, 5 M.J. 236

(C.M.A. 1978).
86 See, e.g., United States v. Butts, 7 C.M.A. 472, 474, 22 C.M.R. 262, 264 (1957).
86 United States v. Sayers, 43 C.M.R. 302 (C.M.A. 1971). The court, however, made plain its disapproval of this procedure: 'The practice should be
discontinued." Id. at 304. AccorcAlnited States v. Crider, 45 C.M.R. 815 (N.C.M.R. 1972). InCrider, there were seven trial counsel and two law officers

assigned by the appointing order. Relying on the failure of the Court of Military Appeals to find jurisdictional error in Sayers, the Navy Court of Military
Review affirmed after finding that the accused suffered no prejudice from the unauthorized appointment. 45 C.M.R. at 821.
87 United States v. Smith, 3 M.J. 490 (C.M.A. 1975) (dictum); see R.C.M. 505(e).
88 UCMJ art. 26(a); R.C.M. 503(b).

89 AR 27-10, para. 8-6(a).
9° Trial Judiciary Memorandum 84-5 (Revised), subject: Detailing of Military Judges IAW R.C.M. 503(b) and AR 27-10, para. 8-6a (Revises TJ Memo
84-5, dated 23 May 1984), 22 Dec. 1989.
91 AR 27-10, para. 8-6(b).
92 AR 27-10, para. 5-3(b).
93 42 C.M.R. 126 (C.M.A. 1970).
94 45 C.M.R: 233 (C.M.A. 1972).

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convening the court-martial, and that counsel's erroneous listing as trial counsel did not prejudice the substantial rights of the accused.95
The Court of Military Appeals has even gone so far as to state that although the improper detail of trial counsel is error, "[it] is of no import vis-a-vis the constitution of the court-martial as an entity ... for counsel are not an integral part of the court."96
In summary, jurisdictional error will result if detailed defense counsel has not been appointed officially as defense counsel. The erroneous listing of either appointed or individual defense counsel as trial counsel, however, without more would not seem to lead to jurisdictional error, although it could be tested for prejudicial error. Additionally, when individual counsel has been appointed previously as trial counsel but prior to trial is removed by order of the convening authority (and not otherwise disqualified), no jurisdictional error results. 97
In cases such as these, the important distinction between jurisdictional and other error may not always be apparent. 98
In some cases, clerical errors raising jurisdictional problems have been found not to have prejudiced the substantial rights of the accused and thus permit affirmance. The Court of Military Appeals, however, has not only criticized the failure to have properly prepared convening orders but has held courts-martial to be without jurisdiction absent a signed modification of the convening order executed by proper authority. 100
The Military Justice Act of 1983 amended article 27, UCMJ, so that the convening authority no longer must personally detail the trial counsel and the defense counse1. 101 The detailing of counsel is now a matter of secretarial regulation. 1°2 The staff judge advocate or an authorized delegate may detail the trial counsel to a court-martia1. 1°3 The detailing of the trial defense counsel is a responsibility of the Chief, United States Army Trial Defense Service. 1°4 The authority to detail trial defense counsel to a court-martial may be delegated to senior defense counse1. 105 For both trial counsel and trial . defense counsel, an orally announced detailing is sufficient for jurisdictional purposes but the detailing decision should be reduced to writing and included in the record of tria1. 106
(6) Request for trial by military judge alone. The accused in a court-martial may choose to be tried by judge alone, 107 waiving his right to trial by a court composed of members just as a civilian may waive the right to a jury trial in a Federal district court. 108 article 16 of the.Code provides that an accused may be tried by military judge alone if "before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves [the request]." 109
Before the Military Justice Act of 1983 authorized an oral request for trial by a military judge alone, article 16 of the Code was strictly construed by the Court of Military Appeals, and a complete and correct written request for trial by judge alone was held to be a jurisdictional condition to such tria1. 110 But in United States v. Steannan, 111 where there was a failure to include the name of the military judge as part of the request, it was held that such was not jurisdictional error. 112 It would appear that as long as the accused has conferred with the defense counsel and, before the court is assembled, submitted a request for trial by military judge sitting alone, with such request approved by the military judge, the requirement that the accused must know the judge's identity may be satisfied by a demonstration of such knowledge in the record of tria1. 113 The omission of the judge's name in the written request is not fatal to
35 Id. at 235.
96 United States v. Ryan, 5 M.J. 97, 101 n.5 (C.M.A. 1978); see also Wright v. United States, 2 M.J. 9 (C.M.A. 1976).
" United States v. Phillips, 46 C.M.R. 4 (C.M.A. 1972).
" See, e.g., United States v. Blair, 45 C.M.R. 413 (A.C.M.R. 1972), petition denied, 45 C.M.R. 928 (1972), where the article 32 investigating officer was

appointed, although he did not serve, as one of seven trial counsel. The court affirmed the conviction, finding no prejudicial error or violation of article
27(a), UCMJ. The court, however, did not discuss the possibility of jurisdictional error. For other examples of nonjurisdictional analysis, see United States

v. Catt, 23 C.M.A. 422, 50 C.M.R. 326 (1975) (disqualification by military judge of individual defense counsel who summarized article 32, UCMJ, evidence for staff judge advocate prejudiced accused's substantial rights when no attorney-client relationship between the Government and the attorney had been established) and United States v. Carey, 49 C.M.R. 605 (C.M.A. 1975) (record of trial contained no indication that trial counsel was duly appointed, but conviction affirmed on later affidavit by convening authority that trial counsel had been appointed verbally). " United States v. Glover, 15 M.J. 419 (C.M.A. 1983); United States v. Carey, 49 C.M.R. 605 (C.M.A. 1975).
100 United States v. Perkinson, 16 M.J. 400 (C.M.A. 1983); United States v. Ware, 5 M.J. 24 (C.M.A. 1978).
101 UCMJ art. 27(a); R.C.M. 503(c).
102 UCMJ art. 27(a); R.C.M. 503(c).
103 AR 27-10, para. 5-3(a).
134 AR 27-10, para. 6-9.
135 Id.
106 AR 27-10, paras. 5-3(b), 6-9.
107 UCMJ art. 16(1)(B), 16(2)(C); see also R.C.M. 903.

199 Fed. R. Crim. P. 23(a). This similarity between the Federal and military practice is not surprising in light of the fact that one of the stated purposes of
the Military Justice Act of 1968 was to streamline court-martial procedures in line with procedures in U.S. district courts. S. Rep. No. 1601, 90th Cong., 2d
Sess., reprinted in 1968 U.S. Code Cong. & Admin. News 4501, 4503.
133 UCMJ art. 16(1)(B); see also R.C.M. 903.

110 United States v. Dean, 43 C.M.R. 52 (C.M.A. 1970).
111 7 M.J. 13 (C.M.A. 1979).
112 Id. at 14. This holding specifically overruled United States v. Montanez-Carrion, 47 C.M.R. 355 (C.M.A. 1973); United States v. Grote, 45 C.M.R. 293

(C.M.A. 1972); and United States v. Brown, 45 C.M.R. 290 (C.M.A. 1972).

113 SeeUnited States v. Kelly, 2 M.J. 1029, 1030 (A.C.M.R. 1976) (absence of military judge's name from the written request for trial before a military
judge alone was not a jurisdictional error).

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jurisdiction if the essential elements of article 16 of the Code are otherwise met and the court-martial is properly composed.
(7)
Absence of accused. A court-martial does not lose its jurisdiction over an accused who is voluntarily absent, without authority, from the trial after arraigtunent. 114 The absence of the accused, however, must be truly voluntary.'" In such case, the court may proceed with the trial to findings and sentence notwithstanding the absence of the accused. 116

(8)
Accused a member of another command. It is not essential that the accused be a member of the command of the convening authority in order for a court appointed by such authority to exercise personal jurisdiction. Thus, an accused who is a member of the United States Army may be tried by a court appointed by any competent Army authority. 117

(9)
Place of rehearing. The Court of Military Appeals may direct The Judge Advocate General to return a record of trial to the convening authority for rehearing. 118 In such an instance, referral of the case to other than the original convening authority or his or her successor may be improper but not a jurisdictional error. 119

8-2. Finality of courts-martial judgments
a. The Codal Provisions. The Uniform Code of Military Justice provides that the "proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed"I 21 under the Code shall be final and conclusive, and that "[o]rders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States... "122 except:
(1)
where the accused has petitioned for a new tria1; 123

(2)
where action is pending with the Secretary to"remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the President" or to "substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-

martiar124
(3)
where the accused has petitioned to the constitutional authority of the President to exercise clemency; 125 or

(4)
where action is pending with The Judge Advocate General on grounds of "newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused,

i 126
or the appropriateness of the sentence. ,
114 United States v. Houghtaling, 8 C.M.R. 30 (C.M.A. 1953); United States v. Oliphant, 50 C.M.R. 29 (N.C.M.R. 1974). The arraignment proceeding includes the reading of the charges and specifications by the trial counsel and an inquiry by the military judge regarding the nature of the accused's plea. See alsoR.C.M. 804(b)(1). Note that failure to arraign the accused is not jurisdictional error. United States v. Reyes, 48 C.M.R. 832 (A.C.M.R. 1974) (en banc) (citing United States v. Taft, 44 C.M.R. 122 (C.M.A. 1971) (failure to take accused's plea not jurisdictional error)).
115 R.C.M. 804(b)(1) discussion; United States v. Peebles, 3 M.J. 177 (C.M.A. 1977); see United States v. Cook. 43 C.M.R. 344 (C.M.A. 1971) (when the military judge was aware of questions as to the accused's mental responsibility, he erred in ruling that the accused's absence was voluntary when the only information available was that the accused was absent and could not be located, rather than making a more thorough inquiry into the reasons for the accused's absence); United States v. Holly, 48 C.M.R. 990 (A.F.C.M.R. 1974) (neither the court nor the defense counsel may waive the accused's right to be present; he must do this personally; although the accused voluntarily left trial for a brief period, the military judge erred by permitting trial to continue beyond the period when accused became mentally ill and was hospitalized). In the absence of any indication to the contrary, it will be presumed that the absence of the accused is voluntary. United States v. Hutcheson, 48 C.M.R. 843, 844 (N.C.M.R. 1974), citing United States v. Norsian, 47 C.M.R. 209
(N.C.M.R. 1973). Absent extraordinary circumstances, for purposes of trial in absentia, an accused is deemed to have been advised of the trial date once
it has been communicated to the defense counsel. United States v. Yam, 32 M.J. 736 (A.C.M.R. 1991).
116 United States v. Staten, 45 C.M.R. 267 (C.M.A. 1972); United States v. Cook, 43 C.M.R. 344 (C.M.A. 1971); United States v. Houghtaling, 8 C.M.R.
30 (C.M.A. 1953): United States v. Hall, 44 C.M.R. 656 (A.C.M.R. 1971) (no error when accused voluntarily absents himself during continuance in his trial
and trial resumes in his absence); see also United States v. Oliphant, 50 C.M.R. 29 (N.C.M.R. 1974); United States v. Day, 48 C.M.R. 627 (N.C.M.R.
1974); United States v. Allison, 47 C.M.R. 968 (A.C.M.R. 1973). Although an accused may normally waive the right to be present at court proceedings, a
rehearing on the sentence may not proceed unless the accused is present at the outset of the rehearing. United States v. Staten, 45 C.M.R. 267 (C.M.A.
1972).

117 United States v. Wyatt, 15 B.R. 217, 255 (1947) (CM 227239). Note that reciprocal jurisdiction is a different question. UCMJ art. 17(a). R.C.. 201(e)
generally limits the court-martial for a member of one service by a court convened by a member of another service to circumstances where a commander
of a joint command or task force has been specifically empowered to do so or the accused can be delivered to the appropriate service without 'manifest
injury to the armed forces? This limitation is not a jurisdictional prerequisite but is a significant policy prohibition.
116 UCMJ art. 67(f).

119 United States v. Robbins, 39 C.M.R. 86, 88-90 (C.M.A. 1969)., The court referred to LTR, JAGM CM 353869, 8 Apr 53 (sic) wherein The Judge Advocate General expressed the opinion that when the original convening authority receives a case with the option of ordering a rehearing or dismissing the charges, and the accused has been transferred out of the command in the interim, an order by the original convening authority to rehear the case does not deprive the officer then exercising general court-martial jurisdiction over the accused of his or her power to decide whether a rehearing is practicable in his or her command. Id. at 89 (emphasis added). In United States v. Martin, 41 C.M.R. 211, 213 (C.M.A. 1970), the court held that referral of a case for rehearing to other than the original convening authority is not a jurisdictional defect.
120
See R.C.M. 1209. 121 UCMJ art. 76. 122 Id. 123 UCMJ art. 73. 124 UCMJ art. 74. 125 UCMJ art. 76: see U.S. Const. art. II, § 2, c1. 1.
126 UCMJ art. 69(b); seeSmith v. Secretary of the Navy, 506 F.2d 1250 (8th Cir. 1974) (mandamus action for vacation of 1942 court-martial conviction dismissed for failure to exhaust article 69 remedy).
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b. Review of courts-martial proceedings outside the military justice system.
(1) By Federal courts. In enacting article 76 of the Code, Congress expressed its intent that, so far as Federal judicial review is concerned, courts-martial proceedings are final and conclusive, "[s]ubject only to a petition for writ of habeas corpus in Federal court." 127 In the case of In re Yamashita, 128 the Supreme Court stated that:
[Military tribunals which Congress has sanctioned by the Articles of War are not courts whose rulings and
judgments are made subject to review by this Court ... They are tribunals whose determinations are reviewable by
the military authorities either as provided in the military orders constituting such tribunals or as provided by the
Articles of War. Congress conferred on the courts no power to review their determinations save only as it has
granted judicial power "to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of
liberty.”129

Statements such as these led some to argue that "with respect to court-martial proceedings and convictions, Article 76 acts as a pro tanto repealer of [28 U.S.C.] § 1331 and all other statutes, with the exception of [28 U.S.C.] § 2241, conferring subject-matter jurisdiction on Article III courts." 130
For a number of years the Supreme Court managed to avoid ruling on the effect of article 76. 131 Not until Schlesinger v. Councilman 132 did the Supreme Court consider the finality provisions of article 76. 133 In Schlesinger v. Councilman the Court held that Congress in passing the UCMJ evinced no intent to preclude collateral relief other than habeas corpus. 134 The Court noted,"Article 76, however, does not expressly effect any change in the subject- matter jurisdiction of Article III courts. Its language only defines the point at which military court judgments become final and requires that they be given res judicata effect." 135 Thus, the Court concluded that collateral remedies, in addition to habeas corpus, are available to petitioners charged with court-martial offenses.
The Military Justice Act of 1983 authorized the United States Supreme Court to review by a writ of certiorari a decision of the Court of Military Appeals. 136 This review process will be available for those cases which pass the threshold for substantive review under article 67, that is, mandatory review of death penalty impositions, cases certified by The Judge Advocate General, and cases in which the Court of Military Appeals grants a petition for review for good cause shown.
(2) By administrative correction of military records. Section 1552(a) of Title 10, United States Code, provides that the Secretary of a military department, under procedures established by the Secretary and acting through boards of civilians may correct any military record of the department "when he considers it necessary to correct an error or remove an injustice." 137 Pursuant to this authority, Army regulations have been promulgated establishing the Army Board for Correction of Military Records (ABCMR) and setting forth the procedures to be followed in making application, and in the consideration of applications, for the correction of military records by the Secretary of the
Anny. 138
While the statute extends to court-martial proceedings, it does not permit the reopening of the proceedings, findings, and sentences of courts-martial so as to disturb their finality. Thus, the Army Board for Correction of Military Records may not question the validity of courts-martial proceedings nor recommend that they be declared null and void.
127 S. Rep. No. 486, 81st Cong., 1st Sess., 32 (1949); H.R. Rep. No. 491, 81st Cong., 1st Sess.. 35 (1949); cited in Schlesinger v. Councilman, 420 U.S.

738, 751 n.23 (1975); see UCMJ art. 76;see also 5 U.S.C. § 701(b)(1)(F) ( 1 982) (specifically excludes courts-martial from the operation of the
Administrative Procedure Act).
129 327 U.S. 1 (1946).
129 Id. at 8;see also Bums v. Wilson, 346 U.S. 137, 140-42 (1953); Goldstein v. Johnson, 184 F.2d 342, 343 (D.C. Cir. 1950), cert. denied, 340 U.S. 879

(1950); Alley v. Chief, Fin. Center, United States Army, 167 F. Supp. 303 (S.D. Ind. 1958). Contra, Jackson v. McElroy, 163 F. Supp. 257 (D.D.C. 1958).
139 Schlesinger v. Councilman, 420 U.S. 738, 745 (1975).
131 See Secretary of the Navy v. Avrech, 418 U.S. 676 (1974); United States v. Augenblick, 393 U.S. 348 (1969). Cf. Gosa v. Mayden, 413 U.S. 665

(1973).
132 420 U.S. 738 (1975).

133 Article 53 of the Articles of War, Act of June 24, 1948, cap. 625, § 223, 62 Stat. 639, which was the immediate statutory predecessor of article 76 and
which contained identical language was construed

by the Supreme Court in Gusik v. Schilder, 340 U.S. 128 (1950), as not precluding habeas corpuscollateral attack on court-martial convictions. 134 420 U.S. at 751-53. A suit for back pay in the Court of Claims is an example of collateral relief other than habeas corpus. See, e.g., Hooper v. UnitedStates, 326 F.2d 982 (Ct. Cl. 1964). See also Smith v. Secretary of Navy, 506 F.2d 1250 (8th Cir. 1974). 139 420 U.S. at 749. 139 UCMJ art. 67(h). 137 10 U.S.C. § 1552(a) (1982).
139 AR 15-185, Board, Commissions, and Committees Army Board for Correction of Military Records (18 May 1977). The Board frequently requests the opinion of The Judge Advocate General on questions of law arising in cases pending before it.
.
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However, if the Board determines that an injustice has occurred in a particular case, it may afford some relief by recommending to the Secretary the "correction of a record to reflect actions taken by reviewing authorities" under the Uniform Code of Military Justice. 139 The Board may, of course, also recommend corrective "action on the sentence of a court-martial for purposes of clemency." 14°
139 10.§ 1552(0(1). 140 10 U.S.C. § 1552(0(2).
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Chapter 9
Inception and Termination of Court-Martial Jurisdiction
9-1. Introduction
The point of inception and termination of court-martial jurisdiction over persons who possess some form of military status has been the subject of significant litigation in recent years. The general source of jurisdiction over all military personnel on active duty is the following provision from article 2 of the Uniform Code of Military Justice:
Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it)
By means of this provision, Congress has defined when a soldier becomes subject to military jurisdiction and when that jurisdiction ends.
9-2. Court-martial jurisdiction
Jurisdiction is the power of a court to try and determine a case. 2 If a court has the power to try and determine a case, its judgment is valid. If a court does not have the power to decide a case, its judgment is void. Court-martial
jurisdiction therefore is the power to conduct proceedings and render a judgment that is binding on the parties.
In order for the judgment of a court-martial to be valid, five elements must be established. These elements are as follows: (1) the court-martial must be convened by an official empowered to convene it; (2) the membership of the court must be in accordance with the law with respect to the number and competency to sit on the court; (3) the court must have had the power to try the person; (4) the court must have the power to try the offense charged; and (5) the charges before the court must have been referred to it by competent authority. In other words, for the judgment of a court-martial to be valid it must be established that the court was properly convened, that it was legally constituted, that the charges were properly referred, and that it had jurisdiction over the person and the offense charged.
In this chapter and in chapter 10, the rules concerning jurisdiction over soldiers and civilians will be discussed. The law of jurisdiction over the offense will be discussed in chapter 11.
a.
Jurisdiction over the person. To have jurisdiction over the person, the accused must not only be a person subject to the Code at the time of the offense and at the time of trial by court-martial, but also the accused's status must not validly have been terminated between these two events. With respect to the latter requirement, there are some exceptions which permit the exercise of court-martial jurisdiction over persons when there has been a valid interruption of the accused's military status. 3

b.
Jurisdiction over the offense. To have jurisdiction over the offense, the crime must be cognizable under tide _ Uniform Code of Military Justice. The location of the offense is irrelevant. 4

9-3. When jurisdiction attaches
a. Inductees. 5 Inductees are subject to the Code from the time of their actual induction. For the induction to be complete, the accused must have participated in the induction ceremony to the extent required by law.
(1) The induction ceremony. In Billings v. Truesde11, 6 the petitioner had been convicted by general court-martial of willful disobedience of a lawful order. After an unsuccessful application for exemption as a conscientious objector, the accused reported for induction, but refused to take the oath prescribed as part of the induction process. On appeal the Supreme Court ruled that, because the prescribed induction ceremony had not been completed, the accused had not been inducted properly into the military and the military had no jurisdiction over him. 7
In United States v. Ornelas, 8 the accused moved at his court-martial to dismiss all charges and specifications against
1 UCMJ art. 2(a)(1). Article 2 also lists 11 other groups of individuals who are subject to the Code.
2 See supra chap. 7, note 1.
3 See infra sec. 9-4.
4 Solorio v. United States, 483 U.S. 435 (1987). For a discussion of the Supreme Court's decision in Solorioand the subject of jurisdiction over the offense
see infra chap. 11.
5 On 29 March 1975, President Gerald R. Ford signed a proclamation terminating registration procedures under the Military Selective Service Act.
Proclamation No. 4360, Mar. 29, 1975, 40 Fed. Reg. 14,567 (1975),reprinted in 50 U.S.C.A. app. § 453 (1978) (Supp.).

In the case of those who refused induction during the Vietnam era, it should be noted that failure of the Department of Justice to include a potential accused on the list of those eligible for the President's Clemency Program (39 Fed. Reg.
33,293 reprinted in 1974 U.S. Code Cong. and Admin. News
8216) may exempt him from later prosecution. See United States v. Zimmerman, 403 F. Supp. 481 (D.N.J. 1975) (defendant's name was not on list
because he had attained Canadian citizenship and was arguably not eligible for clemency program).
6 321 U.S.542 (1944).
7 Id. at 550.
8 6 C.M.R. 96 (C.M.A. 1952). Cf. Machado v. McGrath, 193 F.2d. 706 (D.C. Cir. 1951), cert. denied, 342 U.S. 948 (1952).

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him on the ground that he did not take the oath of allegiance during his induction into the Armed Forces. The law officer denied the motion and refused a subsequent defense request to submit the issue to the court. The Court of Military Appeals held that the defense motion was legally sound and should have been submitted with appropriate instructions to the triers of fact for their determination of the factual issue of whether the accused had completed the induction ceremony. 9
An exception to the rule requiring completion of the induction ceremony is illustrated in United States v. Rodriguez, 19 decided the same day as Omelas. Prior to arraignment, the accused challenged the jurisdiction of the court-martial on the grounds that he was a Mexican citizen who had not been inducted lawfully. More specifically, he argued that he was not advised of his rights as a Mexican citizen and that he did not take the oath of allegiance.
The court found no error in the failure to inform the accused of his rights as a Mexican citizen, which would not have exempted him from service in any event. 11 With respect to the second contention, the court distinguished the accused's case from Omelas on the ground that no factual issue was raised. In Omelas the accused claimed not to have been returned home immediately after his physical examination. In Rodriguez the accused admitted that he did everything but take the oath, that he did not object to induction and that he "voluntarily entered upon the Army duty assigned" him. 12 Although the expression was not used in the decision, the court seemed to find a"constructive induction."
In United States v. Hal1, 13 the Court of Milita y Appeals observed that:
[W]here an accused refuses to submit to induction;... does not participate in any ceremony at all; and continually
thereafter protests the attempt nonetheless to subject him to military service, no "constructive induction" exists in
spite of the accused's acceptance of pay, execution of an allotment for his wife and his wearing the uniform.I 4

The Court of Military Appeals, therefore, has limited the concept of "constructive inductions" to situations where: (1) there is an induction ceremony, albeit a defective one; and where (2) the accused manifests by his or her actions voluntary submission to a military status.
(2) Failure to meet minimum standards for induction. There have been unsuccessful attempts to construe the statutory standards set forth in the Selective Service Act 15 as precluding, and therefore making void and of no effect for jurisdiction purposes, the induction of selectees who do not meet these requirements.
In United States v. Martin, 16 the accused scored nine points on the Armed Forces Qualification Test. Despite his failing score, it was determined administratively that he was acceptable for induction. The accused was inducted and subsequently absented himself without leave on three occasions. The first two absences were tried by special court­martial; the last absence, a little over 6 months, was tried by general court-martial. The accused pleaded guilty to absence without leave and was convicted.
On appeal the accused contended that in view of his failing induction test scores, the statutory provisions 17 of the Selective Service Act precluded his induction. The director of Selective Service filed a brief as amicus curiae in support of the Government's contention that the statute was intended to prevent the exclusion of certain categories of persons from induction. Chief Judge Quinn, speaking for an unanimous court, reviewed the history of the statute and agreed with the Government. Chief Judge Quinn noted:
In summary, the provision of the Universal Military Training and Service Act under consideration was intended to
enlarge the number of persons called to actual service, and to eliminate the "scandalous" and "shocking"situation
in which a substantial percentage of registrants were avoiding actual service because of failure on the administra-

9 6 C.M.R. at 99.
10 6 C.M.R. 101 (C.M.A. 1952). See also Hibbs v. Catovolo, 145 F.2d 866 (5th Cir. 1944); Maybom v. Heflebower, 145 F.2d 864 (5th Cir. 1944) cert.
denied,325 U.S. 854 (1945); United States ex rel. Seidner v. Mellis, 59 F. Supp. 682 (M.D.N.C. 1945); United States v. Scheunemann, 34 C.M.R. 259

(C.M.A. 1964). 11 6 C.M.R. at 104.
12
Id.
13 37 C.M.R. 352 (C.M.A. 1967).
14 Id. at 355.
15 50 U.S.C. app. § 454(a) provides in part that

No person shall be inducted into the Armed Forces for training and service or shall be inducted for training in the National Security Training Corps
under this title... until his acceptability in all respects. including his physical and mental fitness, has been satisfactorily determined under standards
prescribed by the Secretary of Defense;Provided, That the minimum standards for physical acceptability established pursuant to this subsection shall
not be higher than those applied to persons inducted between the ages of 18 and 26 in January 1945; Provided further, That the passing requirement
for the Armed Forces Qualification Test shall be fixed at a percentible score of 10 points....

16 26 C.M.R. 348 C.M.A. 1958). 17 Supra note 15.
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tively prescribed mental test."
The court ruled that the test result "did not make... [the accused] ineligible for induction,"I 9 and held that the court­martial had jurisdiction under article 2(1).
In Korte v. United States, 20 the defendant had refused to report for induction, claiming exemption because he had been convicted of a felony. In upholding his conviction for failure to report for induction, the court stated that the exemption of convicted felons was a permissive exemption only, created not for the benefit of the inductees, but for the benefit of the Armed Forces, which could waive the disability. 2 I
(3) Failure to assert right to exemption before induction. The general rule is that a valid right to a draft exemption, not asserted through the Selective Service System, will not bar court-martial jurisdiction over the person after he or she has been inducted. In United States v. McNei11, 22 the accused went absent without leave after his induction. He was apprehended, tried and convicted of desertion. The accused had prior military service, a fact which, if known to his selection board, would have exempted him from induction. The accused, however, had never furnished the information to his local draft board. The Court of Military Appeals held that the accused was subject to military law:
[H]e failed to show any reason for an exemption, he reported for duty, he was housed, fed, clothed and possibly
paid for six weeks and then, when selected for possible overseas duty, he went absent. To allow an exemption to
be exercised in that manner and at that late date would allow an inductee to enter upon his duties as a soldier and
then abandon the service according to his own whims without fear of punishment. 23

Because he failed to raise his exemption, he was deemed by the court to have waived it.
In Pickens v. Cox, 24 the petitioner failed to inform his local selective service board that he was the sole surviving son of a family which had a son who was killed in military service. This fact entitled petitioner Pickens to an exemption from induction. He was inducted and later convicted by general court-martial of absence without leave and disobedience of a superior officer. On a writ of habeas corpus, the accused attacked the jurisdiction of the court­martial. The Tenth Circuit Court of Appeals noted that the accused had failed to establish his right to an exemption from induction before he was inducted. When his induction occurred, he became a member of the military in active service, and as such was subject to military jurisdiction. In denying the accused's petition for habeas corpus, the court noted that:
[H]e could have applied for release on the grounds of erroneous induction. Having failed both to claim exemption
at the time of induction and to utilize the administrative procedure available to obtain release after induction,
Pickens may not assert his claimed right for the first time on this application for habeas corpus. 25

A draft exemption must be asserted prior to induction into military service. As the decisions in McNeil and Pickens illustrate, the failure to raise a draft exemption through the Selective Service System, or to request release from active duty on the grounds of an erroneous induction prior to being charged with offenses under the Uniform Code of Military Justice, results in waiver. If the accused protests his or her induction at the time of induction, however, he or she does not necessarily waive the protest even if one then accepts military benefits and obeys orders.
b. Enlistees. Since July 1, 1973, the military has operated with an "all volunteer" force. 26 All newly recruited soldiers on active duty pursuant to an enlistment in the regular forces, or in the Reserve forces with a subsequent or concurrent call to active duty, are subject to the jurisdiction of the UCMJ. 27 Normally an enlistment presents no problems and the individual soldier is deemed amenable to jurisdiction. Problems may arise when the enlistment is violative of a statute, regulation, or public policy considerations.
(1) Enlistments in violation of a statute.
(a) Introduction. Numerous statutory provisions determine who may enlist and thereby enter into a contractual relationship with the Government. As a general rule, if an individual is under 17 years of age, insane, intoxicated, a felon, or a deserter, the enlistment will be void. 28 Where, however, an enlistment is defective only in a procedural
18 26 C.M.R. at 353. Hence, "the provision is a restriction on the services to prevent them from excluding certain persons from induction: V. at 350.8ut
see United States v. Burden, 1 M.J. 89 (C.M.A. 1975) (induction held void where accused could not read or write English and failed to pass Armed
Forces Qualification Test).
18 Id. at 573, 26 C.M.R. at 353.
20 260 F.2d 633 (9th Cir. 1958), cert. denied, 358 U.S. 928 (1959).
21 Id. at 637.
22 9 C.M.R. 13 (C.M.A. 1953).
23 Id. at 17.
24 282 F.2d 784 (10th Cir. 1960).

Id. at 786. 28 J. Horbaly, Court-martial Jurisdiction 34 (1986). 27 UCMJ arts. 2(1), (3). See generallySchlueter,The Enlistment Contract A Uniform Approach, 77 Mt. L. Rev. 1 (1977). 28 'No person who is insane, intoxicated, or a deserter from an aimed force, or who has been convicted of a felony, may be enlisted in any armed force.
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sense, the courts can find that a constructive enlistment has occurred. A constructive enlistment can be found, for
example, where a 17-year-old has enlisted without parental consent 29 or where a waivable regulation has been violated
in the recruiting process. 3° In such cases, the concept of constructive enlistment permits the courts to find that a
military status was created, based on the mutual intent of the parties, in spite of a defect in the enlistment process.

(b) Constructive enlistment. For the individual enlisting in the Armed Forces, military status is achieved upon
participation in an enlistment ceremony. The concept of constructive enlistment is in effect a "legal fiction"; it is
"based upon the philosophy that a man is presumed to have promised to do what he ought to do to fulfill the
contract."31 A person's intent is crucial in the determination of constructive enlistment. 32 Certain factors are often
presumed indicative of the intent to become a member of the service. They include: (1) a voluntary submission to
military authority; (2) performance of military duties; 33 (3) receipt of pay and allowances; and (4) acceptance of
Government services. 34

If these factors are established, intent will be assumed, and courts will find that an implied contract between the
• individual and the Government has been effectuated. This implied contract establishes the same rights and obligations as the typical enlistment contract.
(c) Minority enlistments. A statutory provision which has caused numerous problems in the past is the provision
which specifies the required age of the enlistee. The Secretary of the Army may accept original enlistments from males
and females who are not less than 17 years of age. However, no male or female under 18 years of age may enlist
without the written consent of his or her parent or guardian.

A person may not enlist validly in the United States Army if he or she is under 17 years of age. Such an enlistment
is void and does not change the minor's civilian status. If an offense proscribed by the UCMJ is committed by the
minor before his or her 17th birthday, there is no jurisdiction to. try the offender by court-martial. Such a person, under
the current statute, has no competence to acquire military status and therefore is not subject to military law.

In United States v. Blanton, 36 the accused enlisted in the Army when he was 14 years old. He absented himself
without authority before his 16th birthday. Four years later he was apprehended and convicted by general court-martial
of desertion. The Court of Military Appeals held that the accused was never on active duty at an age when he was
competent to serve in the Army. His enlistment was void, and the court-martial had no jurisdiction over him. 37

In United States v. Overton, 38 the accused enlisted at 16 years of age, without his parents' or guardian's consent, by
using his brother's name and birth certificate. After finding military life not to his liking, the accused went to his
commanding officer to disclose his true age and identity in an attempt to straighten out his records. Next he absented
himself without leave in order to obtain his birth certificate. He was convicted by a special court-martial for absence
without leave and while serving confinement for the absence without leave, he was charged with willful disobedience
of a lawful order and convicted upon his guilty plea. The accused had reached the age of 17 before the willful
disobedience offense was committed. His family, especially his mother, had been trying to obtain a minority discharge
for the accused before the last offense was committed.

The Court of Military Appeals ruled that the court-martial lacked jurisdiction over the person at the time of trial.
Before the accused reached his 17th birthday, his enlistment was void. The court noted that if his status changed after
his "17th birthday, that fact may be established affirmatively by the prosecution. In Overton, the court found that the
prosecution had failed to show a " `constructive'... enlistment by the accused or consent by [his] parent." 39

An important development in the subject of minority enlistments occurred in United States v. Brown 4o In Brown,
the United States Court of Military Appeals announced that once the issue of an underage enlistment is brought to the
attention of government officials, the Government must take action immediately to resolve the issue. The accused in
Brown enlisted in the Army at 16 years of age by using a false birth certificate indicating that he was really 17 years

However, the Secretary concerned by authorized exceptions, in meritorious cases, for the enlistment of deserters and persons convicted of felonies? 10
U.S.C. § 504 (1982); "[N]o person under 18 years of age may be originally enlisted without the written consent of his parent or guardian, if he has a
parent or guardian entitled to his custody and control? 10 U.S.C. § 505 (1982) (see, e.g., DAJA—AL 1976/5073, 30 July 1976 (age requirements of the
enlistee). Another factor closely related to that of age is that of education: the Secretary of the Army may temporarily prohibit the enlistment of persons
who lack a high school diploma. DADA—AL 1976/4895, 23 June 1976. But see DAJA—AL 1977/4856, 24 June 1977). INK) person shall be accepted for
enlistment after he has received orders for induction? 50 U.S.C. app. § 465(d) (1970); and 'In time of peace, no person may be accepted for original
enlistment in the Army unless he is a citizen of the United States or has been lawfully admitted to the United States for permanent residence under the
applicable provisions of Chapter 12 of title 8." 10 U.S.C. § 3253 (1976).

2° United States v. Mills, 47 C.M.R. 460 (A.C.M.R. 1971).
3° United States v. Valadez, 5 M.J. 470 (C.M.A. 1978).
31 United States v. King, 28 C.M.R. 243, 249 (C.M.A. 1959).
32 See Schlueter, Constructive Enlistment -Alive and Well, The Army Lawyer, Nov. 1977, at 6.
33 See, e.g., United States v. 8rodigan, 50 C.M.R. 419 (N.C.M.R. 1975); United States v. Alston, 48 C.M.R. 733 (A.C.M.R. 1974).
34 See DA Pam 27-21, pares. 3-41 and 3-42 (1 Oct. 1985).
35 See generally 10 U.S.C. 505 (1982).See United States v. Lenoir, 40 C.M.R. 99 (C.M.A. 1969).
3° 23 C.M.R. 128 (C.M.A. 1957).
37 Id. at 131.
3° 26 C.M.R. 464 (C.M.A. 1958).
39 Id. at 468. Judge Latimer, dissenting, was satisfied that a *constructive' enlistment had been shown and that the mothers action came too late to
terminate her son's military status. See United States v. Graham, 46 C.M.R. 75 (C.M.A. 1976) (17-year-old's conviction by court-martial reversed because

accused enlisted underage and was unsuccessful in attempting to secure his release before going absent with leave).
4° 48 C.M.R. 778 (1974).

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old and by forging his father's signature on the parental consent form. The accused's recruiting sergeant completed the
paperwork for the enlistment but failed to either witness or have notarized the father's signature on the consent form.
The accused informed his company commander that he had fraudulently enlisted, that he was 16 years old, that his parents did not know he was in the Army, and that he did not want to remain in the Army. The company commander instructed the accused to obtain a valid birth certificate, but did nothing more.
Within 60 days after the accused turned 17, he was charged with attempted robbery, robbery, and assault and battery. He was tried and convicted by a general court-martial and sentenced to a bad conduct discharge, total forfeitures, and confinement at hard labor for 3 years.
On appeal, the Army Court of Military Review affirmed the accused's conviction. 41 The Court of Military Appeals, however, reversed the accused's conviction on the grounds that the military did not have jurisdiction to try the accused.
In reaching its decision the court restated the general rule that 16 year olds cannot serve in the United States Army and cannot acquire military status. The court then announced that upon receiving notice that a member of his command was 16 years old, the commanding officer had a responsibility to determine the enlistee's true age. In addition, the court stated that, if while this is being accomplished the accused turns 17, no constructive enlistment will arise. A policy to the contrary, the court noted, "would give encouragement to those who would attempt fraudulently to enlist at age 16, as well as to the recruiting of such persons in the hope that, if everyone keeps silent, the fraudulent enlistment will soon mature into a constructive enlistment." 42
Because of the improper recruitment practice and the company commander's inaction, the court ruled that a constructive enlistment did not attach and that the court-martial did not have jurisdiction to try the accused. With its decision in Brown, the Court of Military Appeals established that a 16 year old should not be made to bear the burden of proving his or her true age in order to show that the enlistment was improper.
Similarly, in cases where a 16 year old alleges that he or she enlisted as a result of recruiter negligence or misconduct, "the government cannot thereafter assert constructive enlistment as the basis for establishing its jurisdic­
43
"
tion over the individual.
(d) Voidable minority enlistments. A person enlisting when he or she is less than 17 years old, and serves beyond the 17th birthday can acquire military status through a "constructive" enlistment by accepting benefits and voluntarily performing military duties. This "constructive" enlistment is voidable, but only at the option of the enlistee's parents or guardians.
If a person enlists when he or she is over 17 years old, but less than 18 years old without written parental (or guardian) consent, the enlistment is voidable, again only the parents or guardian may attack such an enlistment."
The right in the parent or guardian to apply for the minor's discharge may be forfeited, if by their conduct, they ratify or acquiesce in the enlistment. The timing of the parental demand for release therefore is crucial. If the parent or guardian does not request the minor's release by minority discharge until after the individual has committed an offense, the parent's right to custody of their child will be subordinated to the Government's right to hold the minor soldier responsible for his or her crime. In United States v. Scott, 45 the accused enlisted after his 17th birthday, but before his 18th birthday, with the help of forged signatures on the parental consent form. He was charged with taking indecent liberties with a 13- year-old boy. The offense occurred before the accused had reached 18 years of age. A month after the offense and a week before the trial, the accused's parents expressed a desire to have their son released because they had not given written consent to his enlisting. The facts disclosed that the parents knew their son was in the Army, had corresponded with him, and had even accepted a Class E allotment of $25.00 from him.
The Court of Military Appeals held that the court-martial had jurisdiction over the accused. In reaching its decision the court stated that the accused's enlistment contract was voidable. The court also noted that under the enlistment contract the accused's parents could apply for their son's discharge so long as their conduct in no way indicated ratification of the enlistment. After reviewing the facts in the case the court concluded that the accused's parents had ratified and benefited from their son's enlistment, and that their motive in seeking their son's release was to avoid his prosecution.46 For these reasons, the court ruled the accused was tried properly by military court-martial and his conviction was affirmed.
In United States v. Bean,47 the accused enlisted soon after his 17th birthday, with the consent of his guardian who stated that the whereabouts of either natural parent was unknown to him. While on active duty, the accused was charged with murder before his 18th birthday. The accused was tried by general court-martial and convicted of the lesser included offense of voluntary manslaughter. After the case had been referred to trial, the accused's natural mother addressed a letter to the convening authority stating that she had just learned of her son's enlistment and
41 United States v. Brown, 47 C.M.R. 748, 751 (A.C.M.R. 1973).
42 48 C.M.R. at 781.
43 United States v. Howard, 1 M.J. 557 (A.F.C.M.R. 1975).
44 10 U.S.C. § 1170 (1982). See United States v. Mills, 44 C.M.R. 460 (A.C.M.R. 1971). See also United States v. Garback 50 C.M.R. 673 (A.C.M.R.
1975) (extension of enlistment while under 18 years of age without parental consent is voidable only on the application of the parents).
46 29 C.M.R. 471 (C.M.A. 1960).
46 Id. at 473-74.
47 32 C.M.R. 203 (C.M.A. 1962).

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demanded his release.
On appeal, the Court of Military Appeals ruled that the mother's request for the release of her son was not timely
and that the accused was subject to court-martial jurisdiction. In affirming the conviction, the court said:

The enlistment of a minor of the statutory age, even though without the required consent, is valid, and he thereby
becomes de jure and de facto a soldier, subject to military jurisdiction A nonconsenting parent is not entitled to
custody of the minor prior to the expiration of the latter's crime, when the parent has not sought his discharge
until after commission of an offense triable by court-martial and punishable by military law. The parent's right to
the minor's custody and service is, under those circumstances, subordinate to the right of military authorities to
hold the minor soldier to answer for his crime."

The decisions in Scott and Bean reveal that the right of parents to apply for a minor's discharge may be forfeited if by their conduct, the parents ratify or acquiesce in the enlistment. In this area, therefore, the conduct of the parent's and the timing of their request for release are critical factors in determining whether an accused should be released.
The rule that a soldier's enlistment at 17 without parental consent is voidable only upon the parents' request is applicable to an extension of the soldier's enlistment, as well as the initial enlistment. Thus, in United States v. Garback,49 the accused, who had enlisted without parental consent and -extended that enlistment prior to his 18th birthday without consent, was subject to court-martial jurisdiction. Although the accused argued that the extension of his enlistment was void, the court held that it was voidable; and because the parents of the accused never attempted to obtain his release from the service, he was subject to court-martial jurisdiction. His own application for release was "neither effective nor timely." 50
(e) Overage enlistments. In United States v. Grimley, 51 the accused was over the statutory age when he volunteered for enlistment. He was 40 years old and falsely represented that he was 28 years old. While serving on active duty, Grimley deserted. He was subsequently tried by military court-martial and convicted of desertion and sentenced to 6 months' confinement.
In upholding the exercise of court-martial jurisdiction over the accused, the Supreme Court compared enlistment to marriage, noting that both create or change the "status" of the party. It concluded that the accused cannot--
renounce his relations and destroy his status on the plea that, if he had disclosed truthfully the facts, the other
party, the State, would not have entered into the new relations with him, or permitted him to change his status. Of
course these considerations may not apply where there is insanity, idiocy, infancy or other disability which, in its
nature, disables a party from changing his status or entering into new relations. 52

In the Court's opinion, the statutory age for enlistment merely announced a policy rather than establishing a 'standard for the competence of a person to acquire a military status.
(f) Limitations on constructive enlistments. Under some circumstances the courts may refuse to find a constructive enlistment. Interlopers, for example, may not be subject to the UCMJ or found to have constructively enlisted. 7,11 United States v. King, 53 the accused had been separated previously from the service with an undesirable discharge. Later he returned pursuant to a fraudulent set of orders, assumed the status of an Army noncommissioned officer, performed duties as such and drew pay. The Government argued constructive enlistment, but the Court of Military Appeals held that the accused was merely an interloper masquerading as a soldier and that the court-martial had no jurisdiction over his person. 54
In addition, a constructive enlistment cannot be based on time spent in confinement, 55 or while awaiting the processing of a minority discharge. 56 Whether time spent in pretrial restriction awaiting trial by court-martial is voluntary service indicating a desire to assume military -status giving rise to a constructive enlistment is an issue which
48 Id. at 207.
49 50 C.M.R. 673 (A.C.M.R. 1975).
5° Id. at 674.
51 137 U.S. 147 (1890).
52 Id. at 152-53.
53 28 C.M.R. 243 (C.M.A. 1959).
54 Id. at 247. The court held inKing that there was no mutuality of understanding as to status of the accused; thus importing contractual doctrine into this

area of the law, the court failed to find jurisdiction.id. at 24. 28 C.M.R. at 247. As mentioned, some of the elements from which constructive enlistment
may be inferred, are:

(1)
receipt of pay and benefits (United States v. Callow, 48, C.M.R. 758, 762 (C.M.A. 1974)).

(2)
voluntary submission to military authority (id.;cf. United States v. Hall, 37 C.M.R. 352 (C.M.A. 1967)) (active protest to military service defeated constructive induction theory even where pay and allowances accepted and uniform was worn).

(3)
acceptance of service by the military (United States v. King, 28 C.M.R. at 247);

(4)
actual performance of military duties (id.). 55 United States v. Graves, 39 C.M.R. 438, 439 (A.C.M.R. 1968). 56 United States v. Brown, 48 C.M.R. 778 (C.M.A. 1974); United States v. Graham, 46 C.M.R. 75 (C.M.A. 1972); United States v. Adams, 49 C.M.R. 678

(A.C.M.R. 1974).
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is not yet resolved. 57
The vitality of the decision in United States v. King, although not overruled, and cases following its rationale, is questionable in light of the congressional intent to overrule it in amending article 2 of the UCMJ in 1979. 58 It may now be fairly argued that an interloper may, through a constructive enlistment under article 2(c), UCMJ, become subject to court-martial jurisdiction. 59
(2) Enlistments violative of a regulation.
(a) Involuntary enlistment. In past years military appellate courts have ruled on the practice of civilian authorities allowing individuals to join the military as an alternative to trial or confinement on criminal charges. In most cases, local recruiters have worked with civilian judges and prosecutors in arranging to have individuals, in trouble with civilian law, enlist in the Armed Forces.
The leading case condemning this practice is United States v. Catlow. 6° In Catlow, the accused was arrested by civilian authorities and charged with loitering, resisting arrest, carrying a concealed weapon, and assault. When Catlow appeared before the civilian judge of the juvenile court, the judge informed him that he could elect to be tried on the charges, with the possibility of being confined up to 5 years if convicted, or, in the alternative, he could elect to enlist in the Army for 3 years. Reluctantly, Catlow opted for the 3-year enlistment. An Army recruiter contacted him and secured his release from civilian confinement. After completing the required paperwork, Catlow was enlisted in the United States Army, and the juvenile court charges against him were dismissed.
Within a short time after entering on active duty, Catlow was charged with disobedience of orders and absence without leave. He was tried by general court-martial at Fort Dix, convicted of the charges, and sentenced to a dishonorable discharge, total forfeitures, and 6 months' confinement at hard labor.
On appeal, Catlow contended that the court-martial which convicted him lacked jurisdiction because his enlistment was void. The Court of Military Review rejected his contention.° While the court noted that the accused's enlistment was in violation of Army regulations, the court nevertheless concluded that the enlistment was voidable at the option of the Army, because the regulation violated and the resulting disqualification were solely for the benefit of the Army.
The Court of Military Appeals disagreed with the Court of Military Review, and ruled that Catlow's enlistment was void.62 In reaching its decision the court concluded that the accused's enlistment was not the product of his own volition. In addition, the court rejected the argument that the accused's acceptance of pay and allowances constituted a constructive enlistment. On the contrary, the court noted, Catlow's "protestations against continued service" indicated his intent not to become a soldier. 63 The Court of Military Appeals therefore reversed the Court of Military Revievi decision and ordered the charges against Catlow dismissed.
The Catlow decision reflects the court's interest in recruiting practices, and a desire to eliminate coerced and forced enlistments. Since the court's decision in Catlow, numerous other cases have been decided by the appellate courts involving recruiter misconduct, forced enlistments, and recruiting violations.
One of the cases, decided shortly after the announcement of the Catlow decision, was United States v. McNea1. 64 In McNeal, the accused had been convicted of two specifications of absence without leave and sentenced to a bad conduct discharge, confinement at hard labor for 12 months and a forfeiture of $200 pay per month for 12 months.
At itis trial and on appeal the accused contended that because he was recruited into the Army from reform school, he was not subject to court-martial jurisdiction and could not be tried for military offenses. The accused maintained that while he was in reform school, he and others were approached by an Army recruiter and a reform school counselor who talked with them about enlisting in the Army. According to the accused he was told that he would have to serve another year or more in the reform school, unless he wanted to enlist in the Army, in which case he would be released immediately. Because the Army was a way "to get out of jail" 65 the accused agreed to enlist. The reform school
57 See United States v. Brodigan, 50 C.M.R. 419 (N.C.M.R. 1975).
59 MCM, 1984, R.C.M. 202(a) (1984 analysis).
59 R.C.M. 202(a) discussion.
60 23 C.M.A. 142, 48 C.M.R. 758 (1974).See alsoUnited States v. Barrett, 50 C.M.R. 493 (C.M.A. 1975) (enlistment in Army to avoid 4-year term in

reformatory following conviction on juvenile charges held void); United States v. Dumas, 49 C.M.R. 453 (C.M.A. 1975) (enlistment of 17-year-old to avoid
civilian confinement held void); United States v. Bunnel, 49 C.M.R. 64 (A.C.M.R. 1974) (enlistment in Army held void where recruiter and accused
concealed accused's civilian conviction). But see United States v. Frye, 49 C.M.R. 703 (A.C.M.R. 1975) (constructive enlistment found where accused
alleged that he enlisted to avoid going to jail, but offered no evidence other than his statement in the post trial interview to support the assertion); United
States v. Parker, 47 C.M.R. 762 (C.G.C.M.R. 1973) (court-martial jurisdiction over accused upheld where recruiter assisted accused in enlisting even

though accused had civilian convictions for juvenile and felony offenses).
61 United States v. Catlow, 47 C.M.R. 617 (A.C.M.R. 1973).
62 48 C.M.R. 758 (C.M.A. 1974).

63 Id. at 762. But see United States v. Barksdale, 50 C.M.R. 430 (N.C.M.R. 1975) (although accused entered service to avoid civilian charges, court found
constructive enlistment).
64 49 C.M.R. 668 (A.C.M.R. 1974).
" Id. at 669.

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counselor signed the accused's consent form, since McNeal was 17 years old, and the recruiting sergeant processed him into the Army.
At his court-martial, McNeal argued that the court-martial lacked jurisdiction over his person because his enlistment into military service was coerced. The trial judge denied the motion on the grounds that the accused's enlistment was voidable and that a constructive enlistment has occurred.
On appeal the Army Court of Military Review, relying on the Catlow decision, reversed the trial judge's ruling. The Court of Review concluded that the accused's enlistment was void. In reaching its decision the court observed that the accused's consent form was signed by the reform school counselor and not by the accused's parents or legal guardian as required by Army regulations. In addition, the court noted that juveniles with serious criminal records are not permitted to enlist in the Army and that under the circumstances, the court would not assume the accused did not have a juvenile record. For these reasons, the court held that the accused's enlistment was void and ordered the finding and sentence set aside and the charges against the accused dismissed. 66
In short, if a soldier does not voluntarily join the service, but is involuntarily enlisted, a formal defect in the enlistment exists and this could invalidate the Government's attempt to impose court-martial jurisdiction over the person.
In United States v. Lightfoot, 67 the accused's enlistment was upheld. Here counsel for the accused, a juvenile, told him that a charge of burglary would probably be dropped for mere probation if he informed the judge of a desire to enlist. The recruiter was not involved in the proceedings up to that time and subsequently processed the appellant's enlistment without knowledge of counsel's advice. The proceedings were dismissed against the accused because of his military enlistment. This contingency did not invalidate the accused's enlistment by making it involuntary. The Court of Military Appeals stated:
We believe it would be unreasonable to extend Catlow to embrace the situation in which a criminal defendant, on
the advice of counsel, instigates the proposal of military service as an alternative choice to confinement.
Moreover, there can be no legitimate finding of a lack of voluntariness in the sense of Catlow in the present case
on the facts found by the Court of Military Review due to the total absence of intimidation or improper influence
by agents of the government. The appellant's enlistment was voluntary."

If an Army regulation 69 is violated to effectuate an enlistment, the validity of the enlistment may be questioned. Although the Government must follow its own regulations, this does not necessarily mean that the enlistment which violates a regulation will be automatically invalid. If the court determines that the soldier acted in bad faith, 70 suffered no prejudice, 7 I or if the regulation is not for the soldier's benefit, 72 or if the regulation violation is a mere "formal defect,"73 courts generally will hold the violation of the regulation to be insignificant. In United States v. Wagner 74 the court held that the enlistment of the accused--who enlisted to avoid civilian prosecution--was voluntary and valid when it originated with the accused and was not the result of recruiter misconduct. In Wagner the accused had enlisted in an attempt to avoid criminal prosecution in his home state. The court found no recruiter or Government misconduct. Thus, the enlistment would remain voidable unless the individual committed an offense. The court emphasized that violation of a regulation in and of itself would not void an enlistment.
(b) Recruiter misconduct. A violation of a regulation combined with intentional recruiter misconduct may void an enlistment on public policy grounds. In United States v. Russo, 75 the Court of Military Appeals addressed the problem of misconduct on the part of recruiters in enlisting persons in to the Armed Forces. In Russo, the accused suffered from dyslexia, a disease which severely impaired his ability to read. The accused wanted to enlist in the United States Army and talked with an Army recruiter about enlisting. According to Russo, the recruiter provided him with a list of numbers and letters to put on the Armed Forces Qualification test to assure his eligibility for enlistment, and processed him for enlistment. While serving on active duty, the accused was charged with a criminal offense and tried by court­martial. At his trial, the accused alleged that the court-martial lacked jurisdiction over him because of the recruiter's
66 See also United States v. Martinez, 2 M.J. 1255 (A.C.M.R. 1976) (court-martial lacked jurisdiction over accused where the accused was given the
choice of either joining the Army or risking added juvenile proceedings, and the Army recruiter participated in effecting the accused's involuntary
enlistment) and United States v. Dumas, 23 C.M.R. 278, 49 C.M.R. 453 (1975), (court-martial was held without jurisdiction; the accused's enlistment was
held void when evidence showed that the recruiter, the accused's probation officer, and the judge conspired and presented the accused with the option of
enlistment or confinement in a civilian juvenile detention camp and his mother, who was his legal guardian, not only had not consented, but did not know

of the enlistment).
67 4 M.J. 262 (C.M.A. 1978).
66 id. at 263 (footnotes omitted):see also United States v. Ghiglieri, 25 M.J. 687 (A.C.M.R. 1987).
69 The Army regulation which governs enlistments is AR 601-210, (14 Feb. 1990).
7° Wier v. United States, 474 F2d 617 (Ct. Cl.),cert. denied, 414 U.S. 1066 (1973).
71 United States ex rel.Stone v. Robinson, 431 F2d 548 (3c1 Cir. 1970).
72 Allgood v. Kenan, 470 F.2d 1071, 1073 (9th Cir. 1972).
79 Johnson v. Chafee, 489 F2d 1216 (9th Cir. 1972),cert. denied 411 U.S. 966 (1973).
74 5 M.J. 461 (C.M.A. 1978). SeeSchlueter, Wagner, Valadez and Harrison: A Definitive Enlistment Trilogy?, The Army Lawyer, Jan. 1979, at 2.

76 1 M.J. 134 (C.M.A. 1975).
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misconduct in processing him for enlistment. The accused's motion to dismiss on the grounds of lack of jurisdiction
was denied and he was convicted of the charges against him.
On appeal the accused argued that his enlistment was void. In response, the Government argued vigorously that Army regulations setting "minimum mental requirements [for enlistment were)... solely for the protection and benefit of the armed forces" 76 and could be waived by the Government if it so desired. In rejecting the Government's contention, the court ruled that the regulations prescribing minimum mental standards for enlistment in the Army are not solely for the benefit of the Army. On the Contrary, the court stated, the regulations were also, a means of protecting applicants who do not meet specified mental, physical, and moral standards for enlistment by barring their access to an environment in which they may be, incapable of functioning effectively. 77 The court found that the recruiter's misconduct was in violation of recruiting regulations and contrary to the public interest. For these reasons the court ruled that the accused's enlistment was fraudulent and void. 78 Accordingly, the court ordered the conviction of the accused set aside and the charges against' him dismissed.
In United States v. Little, 79 the court again addressed the problem of recruiter misconduct. The accused, who had been convicted of consensual sodomy, attacked his conviction on the grounds that his recruiter had known that he was illiterate and had fraudulently enlisted him. The court held that the accused's enlistment was not void even though the recruiter continued to recruit the accused after having been informed by the accused's mother that her son was illiterate. After all, "to force recruiters to make subjective determinations with respect to literacy" 80 is unreason tble, and negates the value of the Armed Forces Qualifying Test. Yet the recruiter's self-acknowledged assistance to the accused on the test was held sufficient to invalidate the enlistment. By explaining the meaning of some of the words and questions of the exam, the recruiter "made it Virtually impossible to resolve whether the accused could read and write,"81 and "destroy[ed] the only vehicle available to determine literacy, one of the essential prerequisites for enlistment."82 Thus, the charge against the accused was dismissed for lack of military jurisdiction.
In United States v. Hurd, 83 an accused enlisted in the United States Navy "on the promise that he would go to hospitalman 'A' school."84 When it came time to report for schooling, the accused "was told that he was now scheduled for mess management school rather than hospitalman" 85 school. When he complained about the switch in schools, he was told"that it was too late and he was now in the Navy for better or worse." 86
The evidence showed that the documents regarding the accused's schooling had been tampered with. The Navy Court of Military Review also was "unpersuaded b' the Government witnesses." 87 After reviewing the testimony and the documentary evidence, the court concluded that the accused "was fraudulently enlisted, that he was told he would be a hospitalman, and that his papers were changed to reflect enlistment as a mess management specialist without his knowledge." 88 For these reasons, the court found "his enlistment was involuntary and void." 89
If the enlisted soldier previously served in the Armed Forces, was discharged, and was barred from reenlistment, his subsequent enlistment will violate the regulations. For example, in United States v. Huddleston" the accused had served previously in the United States Marine Corps and had been discharged with a bar to reenlistment. Later, at the age of 20, the accused enlisted in the United States Army after indicating on his enlistment papers that he had no prior service.
While on active duty in the Army, the accused was charged with a number of criminal offenses. He was tried by general court-martial at Fort Ord and on pleas of guilty was convicted of fraudulent enlistment, absence without leave, 40 specifications of worthless checks and wrongfully impersonating a noncommissioned officer with intent to defraud. The accused was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 4 years.
On appeal the accused argued "that the court-martial lacked jurisdiction to try him because of allegedly fraudulent
Id.
77 Id. at 136.
78 Id. at 137. SeeUnited States v. Muniz, 1 M.J. 151 (C.M.A. 1975) (enlistment held void where recruiter accepted a bribe from the accused for answers
to the entrance exam); United States v. Burden, 1 M.J. 89, 50 C.M.R. 649 (C.M.A. 1975) (induction void where accused disclosed inability to read and
write); United States v. Brogan, 50 C.M.R. 807 (N.C.M.R. 1975) (Nary regulations not violated where examiner of accused at the time of enlistment found
accused's personality disorder not to be disqualifying); United States v. Jones, 50 C.M.R. 92 (A.C.M.R. 1975). (Project 100,000 accused held to have met
minimum mental standards at time of his enlistment). See generallyJ United States v. Chappell, 41 C.M.R. 236 (C.M.A. 1970) (accused became a member

of the Armed Forces under the Project 100,000 Program).
79 1 M.J. 476 (C.M.A. 1976).
110 Id. at 478.
81 Id.
82 Id.
83 8 M.J. 555 (N.C.M.R. 1979).
" Id.

85 Id.
86 Id.
87 Id. at 556.
88 Id.
89 Id.
9° 50 C.M.R. 99 (A.C.M.R. 1975).

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practices by Army recruiters." 91 An Army Court of Military Review rejected his contention that the court-martial which tried him lacked jurisdiction over his person. The court found that the accused was 20 years old when he enlisted and that his enlistment was voluntary and not coerced. While the court recognized,that a bar to reenlistment is a nonwaivable disqualification, it also recognized that the disqualification is for the benefit of the Army only. Thus, the court concluded, while the "Army could have avoided the enlistment at its option,... Huddleston did not have that privilege once he changed his status."92 In addition, the court concluded that the recruiter who enlisted the accused was not aware of the bar to reenlistment issued the accused. For these reasons, the court ruled that the accused's enlistment was voidable and that the accused was tried properly by military court-martial.
In United States v. Stone, 93 the Court of Military Appeals limited the rule announced in Russo to cases involving intentional recruiter misconduct coupled with nonwaivable defects. Under Stone, the unlawful acts of a recruiter will void an enlistment only where the defect, either statutory or regulatory, is nonwaivable. If the defect is nonwaivable, the enlistment may still be valid under existing case law, if the recruiter's action constituted only negligence and not. intentional misconduct. 94
(c) Effects of recruiter misconduct: Estoppel. Recruiter or other misconduct by Government agents may affect whether a court will apply the doctrine of constructive enlistment. If the recruiter or other Government agent has no knowledge of an improper enlistment proceture, then courts uniformly apply the doctrine of constructive enlistment. However, if the recruiter either should havaLknown, or knew of irregularities in the enlistment process, courts may refuse to apply the doctrine of constructive enlistment, and claim that the Government, because of its misconduct, is estopped from arguing constructive enlistment.
Simple negligence in processing an individual will probably not estop the Government from showing a valid and binding constructive enlistment if the factors of constructive enlistment can be established. For example, in United States v. Valadez, 95 the recruiter's negligence in not realizing that a combination of specific factors made the accused ineligible for enlistment was not deemed recruiter misconduct. Also, in United States v. Harrison, 96 the recruiter's failure to detect the accused's scheme to effectuate an underage enlistment was not considered "recruiter misconduct."
If the recruiter's conduct is grossly negligent, the court could decide that such negligence estops the Government from arguing constructive enlistment, such being tantamount to actual malfeasance. If the recruiter's conduct consti­tutes malfeasance, amounting to a violation of article 84, UCMJ, the enlistment is void. 97
(d) Amendment to article 2, UCMJ. In 1979, while investigating the problem of recruiter misconduct, Congress examined the foregoing rules which, in effect, voided court-martial jurisdiction where a recruiter had enlisted a soldier fraudulently. In November 1979, article 2 of the UCMJ was amended to allow for jurisdiction over individuals with defects in their enlistments. 98 Article 2 was amended as follows:
1.
by inserting "(a)" before"The" at the beginning of section; and

2.
by adding at the end thereof the following new subsections:

(b)
The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jwisdiction under subsection (a) of this section, and a change of status from civilian to member of the armed forces s al 1 be effective upon the taking of the oath of enlistment.

(c)
Notwithstanding any other provision of law, a person serving with an armed force who--

1.
submitted voluntarily to military authority;

2.
met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

3.
received military pay or allowances; and

4.
performed military duties; is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

As noted the changes to article 2 occurred as a result of hearings conducted in 1978 and 1979 by the Senate Armed Services Committee on the continuing problem of recruiter misconduct. During its inquiry, the committee learned of the Court of Military Appeals position on fraudulent enlistments. In the committee's report on the proposed amend­ments, the "serious" problem created for the military by those decisions was addressed. The committee stated:
Several instances came to the committee's attention where accused military members raised the issue of recruiter
91 Id. at 101.
92 Id. at 102-103.
93 8 M.J. 140 (C.M.A. 1979).
94 United States v. Buckingham, 11 M.J. 184 (C.M.A. 1981); United States v. Valadez, 5 M.J. 470 (C.M.A. 1978).
95 5 M.J. 470 (C.M.A. 1978).. •
96 5 M.J. 476 (C.M.A. 1978).

92 United -States v. Russo, 1 M.J. 134 (C.M.A. 1976); Unrated-Status v. Harrison, 5 M.J. 476 (C.M.A. 1978). The recruiter may of course be convicted for
his misconduct. See United States v. Hightower, 5 M.J. 717 (A.C.M.R. 1978).

" The amendment was a part of the Defense Authorization Act of FY 1980 (S. 428). Pub. L. No. 96-107 (9 Nov 1979). The amendment's language
represents the Senate's original version. See Congressional Record, S. 428, 96th Cong., 1st Sess, 125 Cong. Rec. S7272 (1979). The amendment is
discussed in detail at Schlueter, Personal Jurisdiction Under Article 2, UCMJ: Whither Russo, Callow, and Brown?, The Army Lawyer, Dec. 1979 at 3.

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malpractice after commission of an offense, succeeded in obtaining a ruling of no jurisdiction, and were thereupon
returned to duty for a time [before administrative separation could be effected] completely immune from military
discipline. This situation is made intolerable in the case of alleged recruiter malpractice by the fact that the burden
of proof on the jurisdictional issue shifts to the Government after being raised by the accused, forcing the
Government to prove that there was no recruiter malpractice many months or years after the fact, with the
recruiter miles away or out of the service. The committee learned that in many instances accused military
members were simply discharged after raising the defense because of the difficulty of affirmatively proving that
the enlistment was valid, thereby escaping just punishment for their offenses."
The original provision in article 2 became subsection (a) in the new amendment to article 2. Subsection (b) was designed to codify the Supreme Court of the United States decision in In re Grimley. 1" The purpose of subsection (b) is to establish criteria for a "valid" enlistment under subsection (a) of article 2. If the individual possesses the "capacity to understand the significance of enlistment in the armed forces" and voluntarily enlists, that individual is considered amenable to jurisdiction. In proposing this amendment the committee intended to overrule the rule in United States v. Russo101 that an enlistment could be voided if a recruiter had intentionally effected a fraudulent enlistment. The amendment was not intended to condone a recruiter misfeasance or malfeasance but rather to reaffirm the Supreme Court's decision in Grimley. 102
Subsection (c) codifies the doctrine of constructive enlistment: If for any reason there is an "invalid" enlistment, a constructive enlistment will occur as soon as the four criteria are satisfied-- notwithstanding the disqualification whether statutory or regulatory. 1°3 According to the committee, this section overrules the "estoppel" theory which had in the past prevented the Government from relying on a constructive enlistment rationale to establish jurisdiction over the person. It also overrules those decisions which held that an uncured regulatory disqualification could prevent a constructive enlistment. 104
In United States v. Quinta1, 1°5 the Army Court of Military Review assessed the amendment to article 2 and noted that it expressed a new public policy concerning fraudulent enlistments. 106 In Quintal, the accused was convicted in a general court-martial of larceny, housebreaking, disrespect toward an officer, and offering evidence against and assaulting an officer. The sentence imposed was "a bad conduct discharge, confinement at hard labor for two years, and forfeiture of all pay and allowances." 107
On appeal, the accused argued that he was not subject to court-martial jurisdiction because of recruiter misconduct. While the accused acknowledged that the amendment to article 2 changed the law in this area, he nevertheless argued that the change did not apply to him because the amendment did not become effective until after the conclusion of his tria1. 1°8
The Army Court of Military Review rejected the accused's argument and decided to apply the "general rule... 'that an appellate court must apply the law in effect at the time it renders its decision.' Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281... (1969)." 1" Applying this rule, the court concluded that the amendment applied and that the court-martial had jurisdiction over the accused at the time of the trial "regardless of the claimed misconduct of his recruiter." 110
In Woodrick v. Divich, 111 the Court of Military Appeals looked at the court-martial's competence to determine enlistment contract claims, matters not generally within the court-martial's expertise. Woodrick, charged with desertion, claimed that his enlistment contract was a nullity because it was induced by material misrepresentations of agents of the Air Force. He filed an application for extraordinary relief with the Court of Military Appeals. The Court of Military Appeals held that while "a court-martial is competent to determine whether Woodrick's enlistment was voidable," 112 it was not the most convenient forum to handle the matter because the issues involved were not the type in which courts­martial have special competence and the court-martial did not have the power to grant the basic relief requested in this
99 Senate Report 96-197, Defense Authorization Act 1980 (S. 428) at 121 (hereinafter cited as Senate Report). 108 137 U.S. 147 (1890). Senate Report supra note 99, at 121.
101
Id. Russcis discussed supra at 75-78, and accompanying text. 102 Senate Reportsupra note 99, at 121. 103 See United States v. Hirsch, 26 M.J. 800 (A.C.M.R. 1988) (constructive enlistment can cure recruiter misconduct at time of oath); United States v. Ernest, 32 M.J. 135 (C.M.A. 1991) (constructive enlistment applies to reservists and cures regulatory violations in bringing the reservists onto active duty). 104 See Schlueter, Personal Jurisdiction Under Article 2, UCKI: Whither Russo, Callow, and Brown, the Army Lawyer. Dec. 1979, at 3 for a discussion of the legislative history and the impact of the amendments. The amendment was also intended to overrule that portion of United States v. Valadez, 5 M.J. 470 (C.M.A. 1978), which stated that an uncured regulatory defect not amounting to a lack of capacity or voluntariness prevented application of the
doctrine of constructive enlistment. Senate Report, supra note 99.
105 10 M.J. 532 (A.C.M.R. 1980).
48 Id. at 535.
107 Id. at 533.
108 Id. at 535.

109 Id.
110
Id.
111 24 M.J. 147 (C.M.A. 1987). 112 Id. at 151.
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case-- release from active duty. 113 Accordingly, the court stayed the trial proceedings until Woodrick's claims were fully adjudicated in the civilian court system. 114
(e) Retroactivity and ex post facto effect. In United States v. McDonagh, 115 the Army Court of Military Review addressed the issue of the amendment to article 2's retroactivity and ex post facto effect. After a thorough discussion of the matter the court concluded that the amendment did not apply to enlistments entered into before the effective date of the amendment. A majority of the court also concluded that section (b) of the amendment (article 2(b)) did not violate the ex post facto clause of the Constitution as to offenses committed prior to the amendment. 116 The Navy Court of Military Review, however, reached the opposite conclusion on the issue of the amendment's ex post facto effect. 117 In United States v. Marsh, 118 the accused was convicted by special court-martial of a 2 1/2-month absence without leave and was sentenced to a bad- conduct discharge, confinement at hard labor for 3 months, forfeiture of $150.00 per month for 3 months and reduction to the lowest enlisted grade.
At trial the accused argued that the court-martial lacked jurisdiction over him because of recruiter misconduct that occurred in the enlistment process of the accused—misconduct which took place prior to 9 November 1979, the effective date of the amendment to article 2. 119 The trial judge denied the defenses motion to dismiss for lack of jurisdiction over the person on the ground that the issue of lack of jurisdiction due to recruiter misconduct "was foreclosed by the Article 2 amendments. "120
On appeal, the Navy Court of Military Review noted that in Russo "the Court of Military Appeals railed a judicial bar to the trial of those accused who the Court concluded had been enlisted through the misconduct of the services'
" 121
own recruiters.
The Navy Court of Military Review also recognized that the purpose of article 2 was, in part, to overrule the United States Court of Appeals decision in Russo and to do away with the judicial bar to trying those who had been enlisted as a result of recruiter misconduct. 122
After an extensive analysis of the legislative history to the amendment of article 2, the Navy Court of Military Review concluded that the change to article 2 was "a real change in the laws, [and] not a mere restatement." 123 For this reason, the court concluded that the "Congressional act, as applied [namely the amendment to Article 2], violates the ex post facto prohibition because it deprives one charged with crime of [a] defense available according to law at the time when the act was committed... Beazell v. Ohio, 269 U.S. 167, 169-170... (1925)."124 In light of this finding, the court ordered the findings and the sentence in the accused's case set aside and the case returned to The Judge Advocate General for a rehearing. 125
In United States v. McDonagh, 126 the United States Court of Military Appeals concluded "that Congress intended the amendment to Article 2 to apply to all pending cases and to be as fully retroactive as would be constitutionally perrnissible." 127 The Court of Military Appeals, however, drew a distinction between purely military offenses--that is, offenses in"which disputed factual issues about the accused's status as a servicemember must be decided by. the trier of fact" 128 and offenses not purely military--that is, offenses in "which the question of jurisdiction over the person is resolved by the military judge as an interlocutory matter." 129
In the case of purely military offenses, the court concluded that the retroactive application of article 2 raises "serious ex post facto" 136 problems. This is because when article 2 is given retroactive application, an element of a purely military offense is changed--namely the issue concerning the nature of the military status of the accused. The law in effect after the Russo decision (1 August 1975) and before the effective date of the amendment to article 2 (9 November 1979) provided that in a purely military offense, the element of the military status of the accused would have to be submitted to the trier of fact and proved beyond a reasonable doubt. The effect of the amendment to article 2 was to take this issue away from the trier of fact and not to require the Government to prove the element beyond a reasonable doubt. Because this "involves changing an element of the crime to be punished," 131 the court found that a
113 Id. at 153. 114
Id. 115 10 M.J. 698 (A.C.M.R. 1981), aff'd 14 M.J. 415 (C.M.A. 1983).
116
Id. at 711-12.See also United States v. Boone, 10 M.J. 715 (A.C.M.R. 1981).
117 United States v. Marsh, 11 M.J. 698 (N.M.C.M.R.)modified on reconsideration, 11 M.J. 782 (N.M.C.M.R. 1981), rev'd 15 M.J. 252 (C.M.A. 1983). 118 Id
119 11 M.J. at 700.
12'3 Id.
121 Id. at 708 (emphasis added).
122 Id. at 701.
123 Id. at 711.

124
Id. 125 Id. But see 11 M.J. 782 and 15 M.J. 252. 126 14 M.J. 415 (C.M.A. 1983). 127 Id. at 419.
128
Id. at 422. 129 Id.
139 Id. 131 id
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serious ex post facto problem existed.
The Court of Military Appeals had no problem, on the other hand, "where the offense involved is not of a peculiarly
military nature." 132 This is because with such offenses "it has never been necessary to submit a disputed issue of
military status to the trier of fact or for the Government to establish military status beyond a reasonable doubt."I 33 In
short, the court concluded that in cases "where status is not an element .... Congress was not prohibited from applying
the 1979 amendment of Article 2 to cases pending on appeal when it took effect." 134
Because the accused's offenses in McDonagh did not involve an element of military status, namely, the sale and
transfer of cocaine, the court ruled that the amendment to article 2 could be applied retroactively to cover the offenses
with which the accused was charged.I 38
Judge Cook rejected the purely military offense--not purely military offense distinction and would overrule Russo.I 36
Judge Fletcher did not need to decide the retroactivity question because the facts, he thought, were "outside the scope
of the Russo doctrine."I 37
In United States v. Marsh, 138 a purely military offense, absence without leave, was charged. The military status of the accused, thus, was an element which had to be submitted to the trier of fact and proved by the Government beyond a reasonable doubt. In reversing the decision of the Navy Court of Military Review, the Court of Military Appeals ruled that the retroactive application of the amendments to article 2 would violate the ex post facto prohibition in this case. 139
c. National Guard and reservists.
(1)
Introduction. The armed forces of the United States depend on over 1 1/2 million Ready reservists in addition to its active forces of over 2 million members. The Reserve components of the United States Army include the Army National Guard and the United States Army Reserve. And, as will be discussed in this section, both forces are potentially subject to Federal court-martial jurisdiction depending on the status of the soldier or the soldier's unit.

(2)
Active duty v. active duty for training. In the past, as an alternative to induction, a prospective inductee has been permitted to enlist in the National Guard of one's state, serve a tour of "initial active duty for training," and complete one's military obligation by satisfactory performance with the State National Guard in a drill status. There have been cases where the accused claimed that by the technical language of the statute, they were subject only to the jurisdiction of the State National Guard. These claims were based on the fact that they were ordered to"active duty for training," while the statute conferred jurisdiction over them when ordered to "active duty."

In the case of In re Taylor 140 the petitioner, a member of the North Carolina National Guard, was ordered to 6 months' active duty for training with his consent and the consent of the Governor of North Carolina. During the 6 months for which he was ordered to active duty, the petitioner absented himself without authority. After his conviction, the petitioner filed a petition seeking a writ of habeas corpus alleging that the court-martial had no jurisdiction over him, and claiming that, as a member of the National Guard on"active duty for training" as distinguished from"active duty," he was not subject to the Uniform Code of Military Justice. The Federal district court rejected any distinction between how the order read ("active duty for training") and what the statute said ("active duty"). Instead, the court found that the petitioner became subject to military law on the date he was ordered to active duty."'
In United States v. Carro11 142 two accused, who were members of the National Guard, volunteered and were ordered by Department of the Army, National Guard Bureau, to 6 months' active duty training. While on active duty training, the accused were tried in a common court-martial for larceny and were found guilty. The accused claimed that the Armed Forces Reserve Act provided that National Guardsmen were subject to Federal control only when they were ordered to "active duty," as distinguished from "active duty for training," and hence, the court-martial had no jurisdiction over them.
An Army Board of Review held that the accused were subject to court-martial jurisdiction. The court reasoned that Congress intended to include Federal duty such as full-time training duty within the definition of "active duty," and that while serving their six months' active duty for training, the accused were on active duty in the Federal service and
132 Id.
133 Id.
134 Id. at 423.
135 Id.
138 Id. at 424-25 (Cook, J., concurring in part).
137 Id. at 425 (Fletcher, J., concurring in the resutt).
138 15 M.J. 252 (C.M.A. 1983).

139
Id. at 254. 140 160 F. Supp. 932 (W.D. Mo. 1958). 141 Id. at 937. 142 26 C.M.R. 598 (A.B.R. 1958).
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subject to the UCMJ. 143
(3)
Unauthorized retention on active duty. In United States v. Pee1, 144 an accused member of the Army National Guard was retained without proper authorization by State officials, after spending an authorized term on active duty. Because amending orders were not sought from the appropriate authority, the retention of the soldier on active duty and his assignment were administratively erroneous. Thus, the court-martial, which had found the accused guilty of numerous offenses, lacked jurisdiction, and the charges were dismissed. 145

(4)
Order to active duty for missing scheduled drills. The President of the United States is empowered under the United States Code to "order to active duty any member of the Ready Reserve of an aimed force who is not `participating satisfactorily' in a unit of the Ready Reserves." 146 A Ready Reserve is defined, in part, in 10 U.S.C. 269(b) (1982) which provides: "The units and members of the Army National Guard of the United States... are in the Ready Reserve of the Army... " By Executive Order the President has delegated to the Secretary of Defense the authority to activate reservists who are not participating satisfactorily in the Reserve program. 147 In the same Executive Order, the President also gave the Secretary of Defense the power to delegate to the service secretaries authority to activate reservists who perform unsatisfactorily. 148

The requirements for satisfactory participation are set forth in Army regulations. 144 Currently, if reservists fail to attend regularly scheduled inactive duty training sessions or annual "summer camp" training, they may not be called to active duty to serve the remaining portion of their service obligation. Formerly, in cases where an Inactive reservist was called to active duty as a result of unsatisfactory participation, the Government had to comply strictly with the regulations prescribing the procedures for call-up. If the power to call reservists to active duty involuntarily for unsatisfactory inactive duty performance is ever revived, this same strict adherence to procedural requirements should be observed. 150 Moreover, this case law may have new significance in light of the involuntary recall of soldiers for punitive measures which is discussed in detail at paragraph (6), below.
In United States v. Kilbreth, 151 the accused was ordered to active duty because he failed to attend the scheduled training meetings of his National Guard unit. The accused failed to report for active duty and was apprehended and placed under military control. He was tried by special court-martial on a charge of absence without leave. He pleaded guilty and was sentenced to a reduction to El and 150 days' confinement at hard labor. The confinement was suspended, and the accused was ordered to report to Fort Hood. He failed to report and was charged with absence without leave. He was again returned to military control and tried by special court-martial. At trial the defense counsel moved to dismiss the charge and specification on the ground that the accused improperly was ordered to active duty. More specifically, the defense contended that the"procedures prescribed by AR 135-91 as to the determination of unsatisfactory performance were not followed, with the result that the accused was not properly a member of the Army, and therefore, was not subject to the Uniform Code." 152
The accused testified that he never received warning notices about missed meetings and that he was never contacted regarding the absences. Nor was he informed of his right to appeal the notice he received ordering him to report to active duty. The Government offered no evidence to rebut or impeach these statements, but did argue that the accused was not entitled to relief.
On appeal the United States Court of Military Appeals concluded "that the Government's failure to follow its awn positive commands were prejudicial to the accused in his call-up to active duty." 153 In reaching its decision the court found that "not only was the accused never informed of his right to appeal, but that he never in fact appealed, and
143 26 C.M.R. at 600-601."Active duty' is defined in 10 U.S.C. § 101(22), which states:
"Active duty" means full-time duty in the active military service of the United States. It includes full-time training duty, annual training duty, and
attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department
concerned.
1 " 4 M.J. 28 (C.M.A. 1977).
145 Note that court-martial jurisdiction over National Guard soldiers on active duty for training may be secured by appropriate legal action against them
prior to release from active duty. United States v. Pearson, 13 M.J. 140 (C.M.A. 1982); United States v. Self, 13 M.J. 132 (C.M.A. 1982); United States v.
Hudson, 5 M.J. 413 (C.M.A. 1978).
145 Hoersch v. Froehlke, 382 F. Supp. 1235, 1237 (E.D. Pa. 1974). 10 U.S.C. § 673a (1982) provides in part: •

(a)
Notwithstanding any other provisions of law, the President may order to active duty any member of the Ready Reserve of an armed force who—

(1)
is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve...

147 Exec. Order No. 11,366, 32 C.F.R. 11,411 (1967). 148
Id.
149 AR 135-91, chap 3 (10 July 1989).
150 On 1 March 1980, the Army eliminated involuntary active Gory and involuntary active duty training. SeeUnited States v. Arthur, 2 M.J. 481 (A.C.M.R.
1975).
151 47 C.M.R. 327 C.M.A. 1973).

152
Id. at 328. 153 Id. at 329.
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never had the opportunity to present to the officials competent to consider an appeal, any excuse he may have had for any missed meeting." 154
Because the Government failed to comply strictly with the procedural requirements for activating reservists set forth in Army regulations, the court ruled the accused was denied procedural due process and, accordingly, was called up improperly to active duty. For these reasons, the court ordered the charges against the accused dismissed and the sentence set aside. 155
In United States v. Barraza, 156 the accused was not deemed to have waived his constitutional objection to involun­tary activation by failing to raise the issue before military administrative agencies; the court refused to "blindly apply the exhaustion doctrine" in the absence of the showing of a compelling Government interest. Yet the court did apply the doctrine of waiver of constitutional rights, and construed Army regulations to
[R]equire at the very least, that the Reservist take some steps within a reasonable time period and without the right
of counsel to preserve his objection to the call-up based upon due process claims stemming from the violations of '
these regulations. It is not unreasonable to view failure by the [accused] to comport with these immediate appeal
requirements as evidence of waiver of these due process rights... [He] must at the very least put the Government
on notice of these objections to the call-up in order to preserve his claim. 157
Although the court recognized that this lack of notice to the Government was but one factor in the waiver analysis, and that the particular facts and circumstances of each case had to be examined to justify the use of the waiver doctrine, it found that, because of the facts of this case, the accused had waived his rights. Here the accused had received a registered letter notifying him of his orders to active duty and informing him of his right to protest his order to active duty. The accused did nothing with respect to this notification, and there was no evidence that the accused "protested his activation prior to, during, or immediately after his entrance into active duty." 158 The accused did not raise his constitutional challenge to his activation orders until 6 months after his call-up, at a court-martial for drug offenses which were unrelated to his initial order to report for active duty.
(5) Involuntary order to active duty for 45 days. Another problem arises with respect to the provision for an involuntary order to active duty for 45 days of reservists who fail to perform their inactive duty training satisfac­torily. 159
In the case of In re La Plata's Petition, 160 a Ready reservist in the United States Marine Corps was ordered without his consent to 45 days' active duty. When he failed to comply with the orders, he was apprehended by the Marine Corps Military Police. The accused argued that he was unlawfully taken into custody by military authorities and he
154 fd.
155 See generally United States v. Dolan, 42 C.M.R. 893 (A.C.M.R. 1970) (accused in Denmark did not receive notice to report to active duty). See also Hall v. Fry, 509 F.2d 1105 (10th Cir. 1975) (failure to follow notification requirements set forth in regulations for unsatisfactory performance); White v. Callaway, 501 F.2d 672 (5th Cir.) reh. denied, 503 F.2d 1403 (1974) (accused's Reserve commander properly determined that accused absences were unexcused); Rohe v. Froehlke, 500 F2d 113 (2d Cir. 1974) (in appealing order directing the accused to report for active duty, accused had no right to examine adverse factual allegations placed in his file); Hoersch v. Froehlke, 382 F. Supp. 1235 (E.D. Pa. 1974) (accused properly ordered to active duty because of unsatisfactory performance): Tobiczyk v. United States, 381 F. Supp. 345 (E.D. Mich. 1974) (habeas corpus proceeding seeking to have involuntary activation set aside because accused reservist was not medically examined to the extent required by regulations for condition he was suffering from granted): Lizzio v. Richardson, 378 F. Supp. 986 (E.D. Pa. 1974) (reservist contesting order to active duty because of medical problems must present himself to the induction center for examination); Mellinger v. Laird, 339 F. Supp. 434 (E.D. Pa. 1972) (reservist ordered to active duty because of unsatisfactory performance in Reserve unit); United States ex rel. Niemann v. Greer, 394 F. Supp. 249 (D.N.J. 1975) (where defendant systematically avoided claiming correspondence from his Reserve unit, attempts to reach him by mail sufficed); Zillman, Federal Court Challenge to ReservistsInvoluntary Activation: Mellinger v. Laird, 339 F. Supp. 434 (E.D. Pa. 1972). The Army Lawyer, Oct. 1972 at 6. In the following case, a rehearing was ordered on the issue of whether the Government strictly complied with regulations prescribing procedures for activating reservists who perform unsatisfac­torily, United States v. Burke, 48 C.M.R. 246 (A.C.M.R. 1974). For a discussion of the effect of failing to follow regulatory procedures regarding involuntary activation of reservists serving in the Ready Reserve Mobilization Reinforcement Pool, see United States v. Arthur, 2 M.J. 481 (A.C.M.R. 1975).
156 5 M.J. 230 (C.M.A. 1978); cf. United States v. Arthur, 2 M.J. 481 (A.C.M.R. 1975). 157 5 M.J. at 234.
' 58 Id. at 235. A similar result was reached in United States v. Bridgeford, 9 M.J. 79 (C.M.A. 1980) (reservist did not raise involuntary activation deficiencyprior to offense).
159 10 U.S.C. § 270(b) (1982) provides that:
A member of the Ready Reserve... who fails in any year to satisfactorily perform the training duty prescribed... may be ordered without his consent
to perform additional active duty for training for not more than 45 days. But see supra note 101. Persons called to active duty under this provision
have been held to be subject to the UCMJ.
160 174 F. Supp. 884 (E.D. Mich. 1959).
74.
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petitioned the Federal District Court for the Eastern District of Michigan for a writ of habeas corpus.
The Federal district court ruled that the apprehension of the accused was lawful, and held that the petitioner was
subject to the UCMJ from the date he was ordered to active duty. 161

In a similar case, 162 a Coast Guard reservist, who failed to perform his drill obligation satisfactorily, was ordered to
active duty for training for 45 days. He failed to obey the orders and was convicted by a summary court-martial of
absence without leave and failure to obey an order. The summary court-martial held that as a "person lawfully called or
ordered into duty" in the Armed Forces, he, [this reservist] was a person subject to court-martial jurisdiction pursuant
to UCMJ, Art. 2(1). 163

(6) The UCMJ and the Reserve components.
(a) Historical background. In response to significant problems with jurisdiction over the Reserve components,
Congress passed legislation governing the Reserve components as part of the Military Justice Amendments of 1986. 164

In order to understand the significance of this legislation, however, it is first necessary to understand the historical
background of Reserve jurisdiction. The previous rules governing Reserve jurisdiction were adopted with the initial
enactment of the Uniform Code of Military Justice.'" And, notwithstanding the then- existing view that the Reserve
components were a"separate force," some disciplinary controls were established. 1"

For example, article 2(a)(1), UCMJ, provided for jurisdiction over persons ordered to active duty. Thus, the ordering of any individual or unit of the Reserve forces to active duty included the extension of court-martial jurisdiction over that person or unit. 167 Article 2(a)(1) also covered Reserve soldiers ordered to active duty for training Thus, all short duration active duty training also produced Federal court-martial jurisdiction.'" Article 2(a)(1) is not changed by the new Reserve component legislation.
What about inactive duty training (IDT)--the weekend drill? Article 2(a)(3) provided statutory authority for court­martial jurisdiction over the Reserve forces on weekend drill, but only if a restrictive four-part test was first satisfied: the person must actually be performing inactive duty training; the IDT must be detailed in written orders; the orders must be voluntarily accepted by the soldiers; and the order must specify that the person is subject to the UCMJ during the inactive duty training period. 169 The Army, however, throughout the history of the UCMJ, elected not to use this power while the Navy has.
During the initial hearings on the UCMJ in 1949, the Army and Air Force indicated that they did not need this power over inactive duty training, a power heretofore unavailable to them under the Articles of War. 17° The Navy, on the other hand, wanted to retain the broad jurisdictional power that it had under the Articles for the Government of the Navy, which provided:
All members of the Naval Reserve when employed on active duty, authorized training duty with or without pay,
drill or other equivalent instruction or duty, or when employed in authorized travel to or from such duty or
appropriate duty, drill or instruction, or during such time as they may by law be required to perform active duty or
while wearing a uniform prescribed for the Naval Reserve, shall be subject to the laws, regulations, and orders for
the Government of the Navy. 171

As a compromise between these antipodal positions, having no jurisdiction over Reserves on inactive duty training
161 Id. at 887. The applicable portion of UCMJ art. 2(a)(1) reads:
The following persons are subject to this chapter:
(1)... other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the
terms of the call or order to obey it.

162 OGCCG 1957/2, 15 Dec. 1957, in 'Courts-Martial" 7 Dig. Ops. JAG § 45.7 (1957-58).
163 Id. See Keister v. Resor, 462 F.2d 471 (3d Cir. 1972).
164 Pub. L. No. 99-661, §§ 801-908, 100 Stat. 3816, 3905-10 (1986) (signed into law by President Reagan on 14 Nov. 1986). For a complete discussion
of this legislation see Williams, Reserve Component Jurisdiction: New Powers for the Reserve Component Commander and New Responsibilities for the

Reserve Component Judge Advocate, The Army Lawyer, July 1987, at 5.
166 10 U.S.C. §§ 801-940 (1982). The Uniform Code of Military Justice, first enacted in 1949, consolidated and revised the existing laws governing the

separate branches of the service (Articles of War, Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard), Into one
standard code.
166 For an excellent discussion of the history of this legislation, see Clevenger, Federal Court-Martial Jurisdiction Over Reserve Component Personnel, 33

Fed. B. News & J. 418 (1986).
167 Id. at 418. National Guard soldiers are subject to these rules and the new Reserve component legislation, but only while in 'Federal service? See,
e.g., 10 U.S.C. § 672 (1982).

.168 Clevenger,supra note 158.3, at 418.
166 UCMJ art. 2(a)(3).
170 See Duncan v. Usher, 23 M.J. at 32.

171 See id.(quoting 34 U.S.C. § 855).
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and having complete jurisdictional powers, article 2(aX3) was added to the UCMJ.I 72 The law's purpose was to provide disciplinary controls over reservists who were weekend operators of dangerous and expensive equipment.I 73
Army reservists are routinely entrusted with state-of-the-art weapon systems--Abrams tanks, Bradley fighting vehicles, and Blackhawk helicopters--that are certainly both dangerous and expensive equipment. Nevertheless, over the history of the UCMJ, the Army, consistent with its position during the legislative hearings, opted not to exercise this power. The Navy, in comparison, has continuously exercised this grant of authority under article 2(a)(3). 174 Perhaps the Navy's furthest attempted extension of this power occurred in United States v. Caputo,I 75 the case that led to new Reserve jurisdiction legislation.
(b)
United States v. Caputo. Caputo, who had prior Navy enlisted service, enlisted in the Navy Reserve for a 2-year tour. On 7 February 1983, pursuant to his obligation as a reservist, he was ordered from his home in New York to active duty training at the Naval Supply Center at Pearl Harbor, Hawaii. He reported as ordered. Six days later, he was stopped and arrested by civilian police for drinking in public. During the arrest, he was searched and found to be in possession of a large amount of LSD. Two days later, however, local authorities, without taking any action against Caputo, returned him to military control. His unit knew about his arrest and the charges, but released him from active duty training and permitted him to go home. On 2 March 1983, well after his active duty training was over, charges against Caputo were prepared and sworn to at the Naval Reserve. Center at Staten Island, N.Y. On 12 March 1983, Captito reported for his regularly scheduled weekend drill at his assigned unit. He was apprehended and pla , :ed in pretrial confinement. The Navy then extended his inactive duty training status and referred the charges to a special court-martial. Caputo filed an application for extraordinary relief, alleging that the court had no jurisdiction over him. The Court of Military Appeals agreed.

The Court of Military Appeals, relying on the 1969 Manual for Courts-Martial, 176 held that jurisdiction as to an offense committed during a period of service or status once terminated cannot be revived by the accused's subsequent return to duty.I 77 In this case, the court found that Caputo's separation from active duty training terminated his active duty and that jurisdiction could not be revived by Caputo's subsequent return to weekend drill or inactive duty training. 178 Thus, despite continuous military status as .a reservist, the Court of Military Appeals dismissed the offenses for a lack of personal jurisdiction.

(c)
The Military Justice Amendments of 1986. Caputo was the catalyst that pushed Reserve jurisdiction problems to the attention of Congress. In fact, many call the new Reserve jurisdiction provisions the Caputo legislation. The amendments to Reserve disciplinary controls bridge the jurisdictional gaps recognized in Caputo and provide new authority during inactive duty training.

The legislation has several major provisions. First, the act deletes the restrictive requirements of article 2(a)(3). The previous article 2(a)(3), as noted earlier, provided statutory authority to exercise jurisdiction over inactive duty periods, but only if a demanding four-part test was first satisfied. The new standard extends jurisdiction over reservists on all types of training--inactive duty training or active duty training--without any threshold requirements. 1791f the member is training, he or she is subject to in personam jurisdiction.I 8°
Training in the Tile 10 duty status for active duty (AD), active duty for training (ADT), annual training (AT), Active Guard/Reserve (AGR), confers UCMJ jurisdiction. Orders for 19 days of ADT or two weeks of AT would confer jurisdiction over the Reservist for the entire period covered by the orders, to include evening hours past the close of • business when the Reservist might be at home or away for a weekend. Jurisdiction based on weekend drills (IDT) would at a minimum include those hours listed on a unit's training schedule that defined the unit training assembly (UTA). Lunch breaks as well as overnight bivouacs would be included as part of the assembly. 18 I Time spent traveling directly to and from an IDT duty station would arguably be subject to UCMJ jurisdiction if the standard used is the line of duty casualty reporting requirement." 2 The Saturday evening happy hour or promotion party held during a (MUTA 4) drill weekend, where unit members normally return to their homes, is not as clearly a period of UCMJ jurisdiction.
"2 See Id.
173 See Id. at 33.
174 Clevenger, supra note 158.3, at 418.
175 19 M.J. 259 (C.M.A. 1984).
176 Manual for Courts-Martial, United States, 1969 (rev. ed.).

177
18 M.J. at 266. 178 Id. There are exceptions to this general rule. For example, jurisdiction can be "revived" if the discharge is fraudulently obtained, (Wickham v. Hall, 1
M.J. 145 (C.M.A. 1981)), or it the soldier returns to active duty, the offense is punishable by 5 or more years' confinement, and the offense is not
cognizable by a United States civilian court (UCMJ art. 3(a)).
179 UCMJ art. 2(a)(3). For National Guard soldiers, the training must be in the Federal service to subject them to jurisdiction. Personal jurisdiction attaches
at 0001 of the date specified in the Federal orders. United States v. Cline, 29 M.J. 83 (C.M.A. 1989).

188 A court-martial may have personal jurisdiction over an accused because of his or her service status, yet lack subject-matter jurisdiction because the
charged offense was committed before the accused was on active duty and subject to the Code. See United States v. Chodara, 29 M.J. 943 (A.C.M.R.
1990).

181 AR 27-10, para. 21-2.
182 AR 600-8-1, para. 3-2c, See also, para. 41-9.

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If the event is listed on a unit's training calendar, held at the training site, and attended in uniform by unit members, UCMJ jurisdiction should be present. A Saturday evening, voluntarily-attended social event not listed on the training schedule, where unit members out of uniform attend with their spouses, would less clearly confer UCMJ jurisdiction. Reserve unit commanders' policies on these events may be determinative.
The legislation's second purpose was to resolve problems with losing jurisdiction because a soldier's training status terminated when he or she went home. Article 2(d), UCMJ now authorizes ordering to involuntary active duty Reserve component soldiers who violate UCMJ provisions for article 32 investigations, courts-martial, and even nonjudicial punislunent. 183 Third, it amends article 3, UCMJ, by exempting a member of a Reserve component who violates the UCMJ, while subject to the Code, from termination of his or her amenability to court-martial jurisdiction by his or her release from active duty or inactive duty training. 184
Thus, there should no longer be the problem of discovering that a crime has been committed by a member of the Reserve components, only to discover that he or she has been released by self-executing orders. Jurisdiction over the person as to the crimes committed is not revived, it simply never stops. The reservist's continuing status as a reservist provides the requisite jurisdictional nexus.
There are two collateral issues covered as well in the legislation. First, under article 136, UCMJ, officers in inactive duty training status are added to the list of persons who can administer oaths.I 85 Therefore, Reserve component commanders who have access to a Reserve component judge advocate or adjutant can investigate crimes and initiate sworn charges over Reserve component and active duty soldiers while the commander is still in an inactive duty training status.
Second, the act also seeks to protect Reserve component soldiers by extending the article 137 educational process to reservists, to ensure that they are properly introduced to the new disciplinary provisions of the Reserve jurisdiction legislation.I 86 The previous article 137 provides certain articles of the UCMJ must be explained to active component members at the time of enlistment, 6 months after enlistment, and on reenlistment.
d. Burden of proof. When the accused claims at trial that his or her enlistment is void, the Government has the "affirmative obligation" to establish jurisdiction over the accusedJ 87 Jurisdiction in all instances must be proven, not presumed.'"
The same standard of proof used to establish jurisdiction must be employed both at trial and at any subsequent appeals.I 89 Although generally factual disputes in interlocutory questions are decided by the military judge in applying the standard of preponderance of the evidence, there is some question as to whether the military judge should decide factual issues where the military status of the accused is a critical element of the charged offenses, applying a standard of proof beyond a reasonable doubt. In United States v. Bailey, 1" the Navy Court of Military Review held that regardless of the fact that the charged offense, for example, desertion, involves an element of military status, "the standard of proof on all motions to dismiss for lack of personal jurisdiction when presented to the military. judge ... remains a preponderance of the evidence." 19 I Of course, the issue of military status may be raised again during trial on the merits, "and at that time the Government must prove beyond a reasonable doubt that the accused is a member of the military. ,1192
In United States v. Marsh, 193 the Court of Military Appeals reaffirmed this conclusion. While the military judge's ruling on the existence of court- martial jurisdiction as an interlocutory matter is governed by the preponderance of evidence standard, for purely military offenses where status as a soldier is an element of the offensel" that 'element must be proven to the satisfaction of the finder of fact beyond a reasonable doubt.
9-4. Continuing jurisdiction
a. After expiration of enlistment. The UCMJ provides that members of the Armed Forces remain subject to military jurisdiction while "awaiting discharge after expiration of their terms of enlistment." 195 In addition, the discussion to R.C.M-. 202(c) of the Manual for Courts-Martial also provides that:
183 UCMJ art. 2(d)(1). It should be noted that involuntary recall may not be necessary in all cases. If the Reserve component soldiers are performing
active duty or active duty training, they may simply be retained by taking an "action with a view toward trial -prior to the termination date of the orders.
SeeUnited States v. Fitzpatrick, 14 M.J. 394 (C.M.A. 1983). This would eliminate the need to get secretarial approval for post-trial confinement.
184 UCMJ art. 3(d).
188 UCMJ art. 136.
188 UCMJ art. 137.

187 See, e.g., Runkle v. United States, 122 U.S. 543, 556 (1887); United States v. Barrett, 1 M.J. 74, 75 (C.M.A. 1977); United States v. Russo, 1 M.J.
134 (C.M.A. 1975); United States v. Graham, 46 C.M.R. 75 (C.M.A. 1972); United States v. Singleton, 45 C.M.R. 296 (C.M.R. 1972); United States v.
Jessie, 5 M.J. 573 (A.C.M.R. 1978).
188 United States v. Busby, 3 M.J. 753 (N.C.M.R. 1977).

188 United States v. Jessie, 5 M.J. 573, 574 (A.C.M.R. 1978).
190 6 M.J. 965 (N.C.M.R. 1979).
181 Id. at 969.
182 Id.
183 15 M.J. 252 (C.M.A. 1983).
184 See, e.g., UCMJ arts. 85 and 86.
188 UCMJ art. 2(a)(1).

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Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken. Once
court-martial jurisdiction over a person attaches, such jurisdiction shall continue for all purposes of trial, sentence,
and punishment, notwithstanding the expiration of that person's term of service or other period in which that
person was subject to the code or trial by court-martial. When jurisdiction attaches over a servicemember on
active duty, that servicemember may be held on active duty over objection pending disposition of any offense for
which held and shall remain subject to the code during the entire period.I 96

Thus, the Code and the Manual clearly provide for the continuation of court-martial jurisdiction over soldiers beyond
the expiration of their term of service (ETS).

As a general rule, soldiers are entitled to be discharged from the Armed Forces at the end of their enlistment or at the end of their period of obligated service. There are, however, circumstances under which the Government is permitted to either readjust a soldier's discharge date or hold the soldier beyond the discharge date. 197 Some of these circumstances are set forth in Army Regulation 635-200, 198 and include the following:
a.
To make good time lost, in accordance with 10 USC § 972 (paragraph 1-23);

b.
When investigation I as been initiated with a view to trial by court-martial, or while awaiting trial or the results
of trial (paragraph 1-24);

c.
When the individual is en route to the United States from overseas (paragraph 1-25);

d.
When he is retained for completion of medical care (paragraph 1-26), or for a determination of whether the
disease or injury requiring continued medical care or hospitalization was incurred incident to service or

e.
When held by the military to await disposition of civil charges'at the request of friendly foreign Governments
under current jurisdictional agreements (para 1-20).

In each of these situations a soldier is held beyond the scheduled separation date, and in each situation the soldier remains subject to the UCMJ and court-martial jurisdiction.
Despite the apparent simplicity of the continuing jurisdiction concept, the military appellate courts have had to resolve numerous issues in deciding what is"action with a view to trial"; what is the effect of administrative "flagging" action which prevents the issuance of a discharge; what circumstances show that an accused has remained voluntarily in the service beyond his or her ETS date; and who has the burden of proof as to jurisdiction where the accused is tried beyond the ETS date. 199
In United States v. Klunk, 200 the accused's period of absence without leave extended from a date prior to his ETS to a date after his ETS. In holding that the accused could be charged for the entire period of the unauthorized absence, the Court of Military Appeals used language arguably broader than was necessary to resolve the issue presented on appea1.201 In part the court stated:
One's. amenability to military law and court-martial jurisdiction does not necessarily cease with the mere.
expiration of the period of enlistment. Certain formalities of discharge are distinctly contemplated--and, while a
military person is awaiting their accomplishment, he remains fully subject to the terms of the Uniform Code of
Military Justice as specifically provided in its Article 2(1)... As a matter of common sense and basic necessity,
the procedure of discharge or separation must be an orderly one ... Hence--until the regular processes of discharge
have been completed, a Naval enlisted man's status as one subject to military control remains unchanged, the
expiration of his enlistment through lapse of time notwithstanding. 202

The effect of the court's broad statement has been to cause military judges and the Courts of Military Review to find continuing jurisdiction in all cases where no award of a formal discharge has been made. For example, in United States
v. Shenefieldm the accused was charged with three specifications of larceny on 21 November 1967, well beyond the accused's ETS date. The accused was convicted of all three specifications and was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 2 years.
On appeal the accused alleged that at the time he was charged with the offenses, he was past his ETS date and that
196 R.C.M. 202(c) discussion.
197 Taylor v. Resor, 42 C.M.R. 7 (C.M.A. 1970); United States v. Hout, 41 C.M.R. 299 (C.M.A. 1970); Hadick v. Commandant, 40 C.M.R. 245 (C.M.A.
1969); United States v. Speller, 24 C.M.R. 173, 176-79 (C.M.A. 1957); United States v. Sippel, 15 C.M.R. 50, 54 (C.M.A. 1954).
199 AR 635-200, paras. 1-23 to 1-29 (1 Dec. 1988).

199 United States v. Hudson, 5 M.J. 413 (C.M.A. 1978).
200 11 C.M.R. 92 (C.M.A. 1953). See also United States v. Downs, 11 C.M.R. 90 (C.M.A. 1953).
201

The specific question appealed to the court was-whether a legal sentence may be imposed on the basis of the entire term of the absence, or whether it must be adjudged only on that of the period up to and including the date of expiration of the enlistment.' 11 C.M.R. at 93.
202
Id. at 94; see also United States v. Dickenson, 20 C.M.R. 154 (C.M.A. 1955).
203 40 C.M.R. 393 (A.B.R. 1968), rev'd on other grounds, 40 C.M.R. 165 (C.M.A. 1969).
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he was in the process of "ETSing." In ruling on the issue of whether the accused was subject to court-martial jurisdiction at the time charges were preferred, the Army Court of Military Review restated the general rule that "mere expiration of the regular period of enlistment does not alter a serviceman's status as a person subject to the Code...
"204
In addressing the accused's contention that he was"ETSing" at the time he was charged, the court, citing Klunk, stated that "[c]ertain formalities of discharge are distinctly contemplated; e.g., security debriefing, medical examination, administrative clearance, etc., and while a serviceman is awaiting their accomplishment he remains subject to military law..."205
After reviewing the accused's record of trial and finding no "evidence of any purported pre-discharge activity or any other indicia of discharge,"206 the court concluded that the accused was subject to court-martial jurisdiction at the time charges were preferred against him. 207
In United States v. Hutchins, 208 the Court of Military Appeals held that the court-martial had retained jurisdiction over the accused's person even though the trial took place after the expiration of the accused's term of military service. Here, the accused did not object to his retention beyond his ETS, and did not even raise the issue until after findings of guilty had been announced. Furthermore, the accused did not take action to separate himself from the service. Because of these factors, the accused's military status was not terminated, and military jurisdiction was retained. The argument of the accused that AR 635-200, paragraph 2-4, C 13, 10 April 1974 required the convening authority, or his designee, "to take some affirmative action prior to his ETS date to retain court-martial jurisdiction" was rejected. The court reasoned that the regulation did not specifically require any particular procedure for the retention of a soldier.
In United States v. Cole 209 charges of larceny were not preferred against the accused until 66 days after the expiration date of his enlistment. Prior to the preferral of charges, the accused was not apprehended, arrested or confined. Nor was he discharged from military service on the date of the expiration of his service. The accused pleaded guilty to the charges in a general court-martial.
On appeal the accused alleged that the court-martial which tried him lacked jurisdiction since the charges were preferred after expiration of his enlistment. In rejecting the accused's contention, an Air Force Board of Review relied on the provisions of paragraph 11d of the 1969 Manual and Judge Brosman's language in Klunk to justify the exercise of court-martial jurisdiction over the accused. The board in addition, noted that not only had the accused not been discharged from military service, but also that the accused had not taken "any action to compel his discharge on the date set for expiration of service." 2I0 If anything, stated the board, the accused "continued to serve in full pay status and to perform military duties assigned to him during this continuation of his service." 2I I In view of these circum­stances the board concluded that the accused voluntarily extended his enlistment and therefore was subject to court­martial jurisdiction.
In 1970 the United States Court of Military Appeals, in United States v. Hout, 2 I 2 adopted the voluntary extension rationale. In Hout, the accused was an Air Force sergeant whose enlistment expired on 14 January 1968. Three days prior to the expiration of his time of service, the accused was placed on administrative hold. On 30 September 1968, more than 8 months after his ETS date and while still on administrative hold, the accused was charged with seven specifications of larceny of Government money He pleaded guilty in a general court-martial.
On appeal the accused alleged that he could not be tried by court-martial because "military jurisdiction over his person ended by operation of law," 213 sometime after 14 January 1968 and before the date of preferral of charges.
In denying the accused's appeal the United States Court of Military Appeals (per Chief Judge Quinn) noted that a discharge date is merely the date upon which a soldier is entitled to be released from active duty in the military service. Thus the court concluded that service on or beyond a discharge date does not affect a soldier's status. In this regard the court noted that"Article 2(1) [of the Uniform Code of Military Justice] ... provides that persons "awaiting discharge
214
after expiration of their terms of enlistment remain subject to the Uniform Code and trial by court-martial."
In addition, the court stated that where a soldier serves beyond the discharge date and demands release from military service, the Government must accede to the soldier's request for discharge unless for some good reason it is deemed necessary to hold the soldier beyond the expiration date. Also the court observed that consent to continued service can be implied where a soldier performs regularly assigned duties and accepts military pay and benefits.
204 Id. at 394.
2°5 Id.
206 Id.
2°7 Id.
208 4 M.J. 190 (C.M.A. 1978). Some modifications were later made to AR 635-200: The provision was redesignated as para. 2-5 and the requirement of

action by the GCM authority, or designee, to hold a soldier was deleted. 'Approver by the GCM authority to hold a member beyond 30 days after the
ETS date remains. SeeAR 635-200, para. 1-24a. Still, the provision, according to Hutchins does not terminate jurisdiction.
209 39 C.M.R. 987 (A.F.B.R. 1969).
210 if at 989.

211
Id. 212 41 C.M.R. 299 (C.M.A. 1970). 213 Id.. at 301.
214
Id.
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Thus, in Hout, the court found that the accused consented to continued service by performing duties and drawing pay
and "retained the unqualified status of a person on active duty subject to the Uniform Code of Military Justice." 215

Judge Darden concurred with this result, but for different reasons. Judge Darden concluded that the accused was
subject to court-martial jurisdiction because the Government had commenced action with a view toward a trial of the
accused prior to his 14 January 1968 date of discharge. Inasmuch as the accused was a suspect in a long and complex
investigation, Judge Darden reasoned the Government was entitled to exercise continuing jurisdiction over him. Judge
Darden refused to hold that an accused's liberty must be restrained before the Government could invoke the provisions
of paragraph 11d of the 1969 Manual authorizing the exercise of continuing jurisdiction over an accused. 216

In dissent, Judge Ferguson argued that the accused was improperly placed on administrative hold. Mere suspicion of
commission of an offense, Judge Ferguson contended, was not sufficient reason to deny a soldier his "liberty to again
become a civilian."217 Because the Government acted illegally in holding the accused beyond his discharge date, Judge

. 9,218
Ferguson argued that the Government "lost its right to ... exercise court-martial jurisdiction over [the accused]
The language of Chief Judge Quinn in Hout is somewhat different from the court's language in Klunk. In Klunk, the'
court indicated that one remains subject to court-martial jurisdiction until the formalities of discharge are completed. In
Hout, Judge Quinn stated that "[s]hould the serviceman indicate a desire to be discharged, as provided by his
enlistment, the Government must comply with his request within a reasonable time or risk the conclusion that his
continued performance of duty was not consensual but involuntary." 219 Thus under Hout, if no good cause exists to
hold a soldier beyond the expiration of the enlistment, the soldier may demand release and the Government is bound to
grant it.

Following Judge Quinn's reasoning in Hout, a Navy Court of Military Review in United States v. Larson 220 ruled
that the military did not have jurisdiction to try an accused approximately two months after his enlistment expired who
requested release from military service on his date of discharge, but was not discharged because he was in a "legal
hold" status.

On appeal the accused alleged that the court-martial which tried him lacked jurisdiction over his person. In
reviewing the accused's claim, the appellate court found that an investigation report on the accused's involvement in a
drug offense had been received by the accused's commander on 4 December 1969. In addition, the court found that on
the date of the expiration of his enlistment, 13 January 1970, the accused requested release from military service.
Marine Corps officials, however, determined that the accused was in a "legal hold" status, and denied his request. On
10 February 1970, charges arising from the offense were prepared and served on the accused and he subsequently was
tried by special court-martial. In an attempt to justify the exercise of continuing jurisdiction over the accused, the
Government argued that action with a view toward trial had commenced prior to the expiration of the accused's
enlistment. The court, however, concluded that the actions referred to by the Government amounted to no more than
legal maneuvering. Because the Government "failed to sustain its burden to show commencement of action prior to the
expiration of the [accused's] enlistment sufficient to preserve jurisdiction," 221 the court set aside the findings and
sentence in the accused's case and dismissed the charge and specifications against him.

Similarly in United States v. Smith, 222 the Court. of Military Appeals found that a court-martial lacked jurisdiction
because the Government failed to show sufficient action with a view towards trial, prior to the expiration of the
accused's enlistment. The court explained that the mere expiration of a period of enlistment does not alter the
individual's status under the UCMJ. Furthermore, if jurisdiction had attached prior to discharge, it continues until the
time of prosecution. Finally, although it was not necessary for the trial actually to have begun prior to the discharge
date in order for jurisdiction to attach, some affirmative action, "some precise moment [when] the sovereign ...
authoritatively signaled its intent to impose its legal processes upon the individual" 223 must occur prior to the discharge
date. In the instant case, only the writing down of proposed charges took place before the discharge date. This was not
a sufficiently official manifestation by the Government of its intent to prosecute.

215 Id. at 302.
216 Judge Darden's reasoning was adopted by the Navy Court of Military Review in United States v. Cox, 49 C.M.R. 350, 353 (N.C.M.R. 1974), which

held that the commencement of disciplinary action against an accused prior to the termination of his period of enlistment was sufficient to permit the
military to exercise court-martial jurisdiction over the accused after his term of service had expired.
217 41 C.M.R. at 305 (Ferguson, J., dissenting).

218 Id.
215 Id. at 301.Cf. United States v. Simpson, 1 M.J. 608 (A.C.M.R. 1975) (accused repeatedly sought discharge while hospitalized after his ETS date; on
trial for AWOL after release from hospital, the court held that he was retained involuntarily).
220 42 C.M.R. 941 (N.C.M.R. 1970).
• 221 Id. at 942. InUnited States v. Cox, 49 C.M.R. 350 (N.C.M.R. 1974), a Navy Court of Military Review ruled that the appearance of the accused before his battalion commander prior to the termination of the accused's enlistment was evidence of commencing action with a view toward trial and was sufficient to distinguish the case from the court's holding inLarson. See also United States v. Anderson, 1 M.J. 498 (A.F.C.M.R. 1975).
222 4 M.J. 265 (C.M.A. 1978).
223 Id. at 267.See, e.g., United States v. Beard. 7 M.J. 452 (C.M.A. 1979) (charge filed prior to expiration date of enlistment); United States v. Wheeley, 6

M.J. 220 (C.M.A. 1979) (Government took actions with view toward trial and accused sought reenlistment); United States v. Self, 8 M.J. 519 (A.C.M.R.
1979), affd, 13 M.J. 132 (C.M.A. 1982); United States v. Bowman, 9 M.J. 676 (A.C.M.R. 1980) (records flagged 1 day before ETS and accused
consented to remain on active duty while German charges against him were still pending); Allen v. Steele, 759 F.2d 1469 (9th Cir. 1985) (sufficient action
taken with a view toward trial to establish court-martial jurisdiction over the accused).

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The Court of Military Appeals and Courts of Military Review continue to apply an "official" action test in determining whether termination of status has been stayed. If charges are preferred, personnel files flagged, or pretrial restraint imposed prior to termination date, jurisdiction will normally be found. 224
In United States v. Fitzpatrick, 225 the Court of Military Appeals summarized the law on retention of jurisdiction beyond the ETS date in three general rules. First, the Government will lose jurisdiction unless "prior to [the) date of separation, some official action has been taken" which signals an intent to impose legal processes upon the soldier so held.226 Second, if no such action is taken before the date of separation, but after the date of separation the soldier does not object to being retained in service, then jurisdiction is not lost. 227 Third, if, after the date of separation, the soldier objects to retention and demands a discharge or release, then the Government must take"official action with a view to prosecution within a reasonable time" after the objection is raised. 228
In United States v. Douse, 229 the court considered the reasonableness aspect of the third principle of law noted above. One critical aspect of Douse is that while the service member had earlier objected to retention on station at an overseas location, those protests did not count in measuring the reasonableness of the Government's response. Only when the service member gave a clear objection to retention in the Armed Forces was the Government's duty to take action with a view to trial triggered. Using a"totality of relevant circumstances test," the court found that the preferral of charges, 18 days after a valid objection to retention was made, satisfied the duty to act within a reasonable time. 230
In United States v. Williams 231 the accused was retained past his ETS based on his apprehension fir larceny charges, some 12 days prior to his scheduled ETS. Williams argued that his court-martial lacked jurisdiction, not because he was improperly initially retained, but because AR 635-200, para. 1-24(a) provided "if charges have not been preferred, the member will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves." 232 Charges against Williams were not preferred until 33 days after his ETS and the general court-martial convening authority was not consulted. The Army Court of Military Review, however, held that the Army's failure to follow its regulations must be tested for prejudice and none was established in this case.
The Court of Military Appeals re-examined and overturned the rules of Fitzpatrick in United States v. Poole. 233 The court held"that jurisdiction to court-martial a servicemember exists, despite delay— even unreasonable delay--by the Government in discharging that person at the end of an enlistment... "234 Chief Judge Everett, writing the opinion for the court, based the ruling on a strict interpretation of Article 2, UCMJ, where the statute indicates that the military has jurisdiction over"[m]embers of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment." 235 Military jurisdiction, therefore, exists over servicemembers even if they object to being held past their ETS date, until their status terminates by discharge.
b. Self-executing orders. A soldier who has been given self-executing orders will be separated from military service on the date indicated in the orders without further action, unless the term of service is extended by proper authority. The effect of a self- executing order is that jurisdiction over the soldier terminates automatically on the specified date absent some action on the part of one in authority to extend the term of service. Cases in this area have generally involved Reserve component soldiers who have self- executing orders and who are charged with committing offenses while on active duty.
Today, however, with the recent amendment to article 3(d), UCMJ, discussed previously in para. 9-3c, jurisdiction over Reserve component soldiers for offenses committed while subject to the UCMJ does not terminate at the end of that period of duty, but continues as long as the soldier retains status as a member of the Reserve components. Thus, problems with retaining jurisdiction because of self-executing orders should not be an issue except in those cases where the soldier has actually been discharged from all further military service.

9-5. When jurisdiction over the person terminates
a. General rule. The Manual for Courts-Martial in its nonbinding discussion of R.C.M. 202(a) sets forth the general rule on the termination of jurisdiction over the person. In part it provides "the delivery of a valid discharge certificate or its equivalent ordinarily serves to terminate court-martial jurisdiction." 236 Military jurisdiction, therefore, ends upon the award of a discharge or the termination of military status.
224 Id. at 267.
225 4 M.J. 394 (C.M.A. 1983).
226 Id. at 397, citingSmith.

ld. 226 Id., citing Hutchins. 229 12 M.J. 473 (C.M.A. 1982). 239 Id. at 478. See also United States v. Freeman, 23 M.J. 820 (N.M.C.M.R. 1987) (taking 15 days to prefer charges atter objection was reasonable) and
United States v. Morrison, 22 M.J. 743 (N.M.C.M.R. 1986) (6-month delay in trial was reasonable where case was exceedingly complicated).
231 21 M.J. 524 (A.C.M.R. 1985).
232 AR 635-200, para. 1-24a (1 Dec. 198).
233 30 M.J. 149 (C.M.A. 1990).
234 Id. at 151.
235 U.C.M.J. art 2(a)(1).
236 R.C.M. 202(a) discussion. See Zeigler, The Termination of Jurisdiction over the Person and the Offense, 10 Mil. L. Rev. 139 (1960).

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b. Termination of military status. Military status for purposes of court-martial jurisdiction generally ends on the delivery of a valid discharge certificate. A question may arise whether after delivery is made, jurisdiction is terminated or may be revived by revocation of the discharge or the orders, regardless of what service regulations purport to allow.
In United States v. Scott 237 the accused was discharged for unfitness and given a general discharge. After the general discharge certificate was delivered to him, he confessed to stealing a radio. The discharge orders were revoked and charges were preferred against him. He was tried by special court-martial and found guilty of larceny. An Air Force Board of Review affirmed the accused's conviction. The Court of Military Appeals, however, reversed and held that jurisdiction over the accused ended with the delivery of the discharge to the accused.
In United States v. Howard238 the accused "was issued a General Discharge Certificate and a DD Form 214 (Certificate of Release or Discharge from Active Duty)" 239 early on the morning of August 22, 1984. By midmorning, the accused had finished his "out- processing" and had "signed out of the command and was on his way home." 240
Later on the same day, the accused's commander learned that the accused was being investigated for the wrongful possession of a military identification card.
Acting under the belief that [the accused's] discharge was not effective until midnight on August 22, 1984, as
provided by paragraph 1- 31(d), AR 635-200, the responsible commander directed that the appellant's discharge
be revoked. The revocation order was prepared at approximately 10:00 p.m. on August 22, 1984; however [the
accused] was not notified of this action until August 31, 1984 when he was located in Detroit, Michigan. 241
The accused subsequently was brought to trial by general court-martial on charges of "wrongful possession of the military identification card and additional offenses of larceny, forgery, and false swearing, in violation of articles 134,
121, and 123."242
At his trial, the accused argued that the court-martial did not have jurisdiction to try him. The trial judge agreed and ruled "that personal jurisdiction to try [the accused] had been lost when the Government gave him a discharge certificate, processed him for separation, permitted him to leave Fort Devens, and did not notify him of the revocation until 9 days later."243
The Government appealed the trial judge's ruling and the Army Court of Military Review reversed, holding that "the military judge erred in dismissing the charges for lack of in personam jurisdiction." 244 The accused then appealed to the Court of Military Appeals.
The Court of Military Appeals reviewed the facts of the case and the law concerning the process of discharge from the Armed Forces and concluded that when the accused received his discharge, military jurisdiction over the accused ended and, thus, the accused could not be tried for the offenses with which he was charged. 248 "Delivery" the court noted,"has significant meaning."246 Its effect is to show that the transaction or relationship is complete. For this reason, the court concluded that ald]ischarge is effective upon delivery of the discharge certificate." 247
With regard to the Army Regulation (AR 635-200) which provides that a discharge is not effective until midnight on the day it is awarded, the court stated that the regulation "would have authorized the commander to retain [the accused] within his command until midnight on the date of discharge." 248 In this case, however, the court found that "the commander made an informed decision to allow [the accused] to be discharged at an earlier time when he authorized him to pick up his discharge certificate, as well as his DD Form 214 and travel pay, and allowed him to be released from the boundaries of the military reservation before any action was taken with a view to trial by court-martial." 249
For these reasons, the court reversed the decision of the Army Court of Military Review and reinstated the ruling of the trial judge which dismissed the charge for lack of jurisdiction over the person.
In United States v. Justice,280 the accused was convicted by general court-martial of receiving bribes. This conviction was reversed because after the offense was committed the accused had been discharged from the Armed Forces. This discharge acted as a bar to a subsequent trial for offenses occurring prior to discharge, regardless of the
237 29 C.M.R. 462 (C.M.A. 1960). 238
20 M.J. 353 (C.M.A. 1985).
239 Id.
240
Id. 241 Id. at 354. 242 id
243
Id. 244 United States v. Howard, 19 M.J. 795, 797 (A.C.M.R. 1985). 245 20 M.J. at 354-55. 246 Id. at 354.
247 Id.
248
Id. 249 Id. at 354-55.See also United States v. Poole, 20 M.J. 598, 599-601 (N.M.C.M.R. 1985) (trial by court-martial of reservist for offenses committed just before he was discharged from active duty service held to be without jurisdiction).
250
2 M.J. 344 (A.F.C.M.R. 1976) modified 2 M.J. 623 (A.F.C.M.R.), affd, 3 M.J. 451 (C.M.A. 1977).
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subsequent reenlistment or an extension of the original enlistment term. .
In United States v. Brown 2 51 the accused had completed 4 years' active duty as a Navy reservist. After he received orders transferring him to the Ready Reserve and directing him to proceed to his home, he departed his ship. An hour later, it was discovered that he was involved in selling the solutions to competitive examinations for enlisted promotions. His orders were revoked, and he was apprehended later in the day. The court held that jurisdiction to try the accused depended on his continued service on active duty and not on lack of discharge. His membership in the Reserve was not a sufficient military connection to support military jurisdiction. The court, therefore, ruled that court­martial jurisdiction terminated with the delivery to the accused of the orders discharging him on that day. For the court, the orders relieving him from active duty were considered analogous to a discharge certificate. This decision, however, may be of limited vitality in light of recent amendments to article 3(d), UCMJ. 252
In United States v. Thompson, 253 the Army Court of Military Review extended the discharge rule to the delivery of a DD Form 214 that released the accused from 'active duty. Thompson was being separated from the Amy for unsatisfactory performance pursuant to level status, that is he had not served 180 days on active duty, Thompson was not entitled to a discharge certificate but only a certificate of release from active duty. Thompson cleared post, picked up his certificate of release from active duty, turned in his military identification card, and picked up his final pay. He then returned to the unit orderly room to pick up his luggage. On his return, he was apprehended and later court­martialed. Thompa n appealed, alleging that jurisdiction terminated with the delivery of the DD Form 214. The Army Court of Military Review agreed, finding the certificate of release from active duty to be the functional equivalent of the discharge certificate. 254
In United States v. Brunton, 255 the Navy Marine Court of Military Review faced the problem of erroneous delivery of the discharge certificate. Brunton was home on terminal leave awaiting his scheduled discharge on March 31, 1985. On March 28th, however, he received his discharge in the mail. Later that same day, he was telephonically ordered back to active duty for criminal misconduct. Brunton, relying on United States v. Howard, 256 argued that the delivery of his discharge terminated the Navy's jurisdiction over him. The Navy Court disagreed, holding the erroneous early delivery of a discharge is not effective on delivery and that United States v. Howard must be distinguished on its facts. 257
Finally, in United States v. Ray, 258 the Air Force Court of Military Review upheld jurisdiction over an airman on appellate leave awaiting his punitive discharge from a prior court-martial. Moreover, the court upheld jurisdiction despite evidence that the accused would have been discharged but for governmental error in failing to issue the discharge.
c. Exceptions to the general rule. Some exceptions to the general rule are set forth in the discussion of R.C.M. 203(a) of the Manual. The exceptions include article 3(a) offenses, persons in custody serving a court-martial sentence, 259 persons obtaining a discharge fraudulently, 269 and deserters who receive a discharge for a subsequent period of service 2 61
(1) Article 3(a) offenses. 262
(a) Background. In United States ex rd. Hirshberg v. Cooke, 263 the accused was serving a second enlistment in the
251 31 C.M.R. 279 (C.M.A. 1962).
252 Id. at 281.See Taylor v. Resor, 42 C.M.R. 7 (C.M.A. 1970); United States v. Hout, 41 C.M.R. 299 (C.M.A. 1970); Hadick v. Commandant, 40 C.M.R.
245 (C.M.A. 1969). Cf. United States v. Porter, 1 M.J. 506 (A.F.C.M.R. 1975) (order issuing bad conduct discharge, adjudged in absentia, was never cut;
thus, court had jurisdiction over the accused, although the discharge had been ordered executed by the convening authority).
253 21 M.J. 854 A.C.M.R. 1986).
254 Id. at 856.
255
24 M.J. 566 (N.M.C.M.R. 1987). 256 20 M.J. 353. 257 The Court of Military Appeals also has held that an erroneous early delivery of a discharge does not terminate UCMJ jurisdiction over the soldier.
United States v. Garvin, 26 M.J. 294 (C.M.A. 1988).
258 24 M.J. 657 (A.F.C.M.R. 1987).
256 UCMJ, art. 2(a)(7).
26° UCMJ art. 3(b).
261 UCMJ art. 3(c).
2€2 Article 3, UCMJ, provides in part:
(a) Subject... [to the provisions of Article 43) no person charged with having committed, while in a status in which he was subject to this chapter, an offense against the chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.
263 336 U.S. 210 (1949).
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Navy when he was taken prisoner upon the surrender of the United States forces on Corregidor in 1942. After the war ended, he was liberated and returned to the United States. After hospitalization, he was restored to duty in January 1946. On 26 March 1946 he was granted an honorable discharge because of the expiration of his prior enlistment. The next day he reenlisted. In February 1947, a little less than a year after his reenlistment, the accused was charged with crimes committed during the period November 1942 and March 1944 while he was a prisoner of war. He subsequently was tried by general court-martial on charges of maltreating his fellow prisoners of war and convicted. The court sentenced him to 10 years' confinement at hard labor, a dishonorable discharge and a reduction from chief signalman to apprentice seaman. The accused ultimately appealed his conviction to the Supreme Court of the United States. The Court held that the court-martial lacked jurisdiction to try the accused for an offense committed during his prior enlistment and reversed his conviction.
Aroused by the effect of the decision in the Hirshberg case, Congress was determined to remedy the situation by granting jurisdiction to try certain individuals who had been discharged from the service. 264 This grant of authority, embodied in article 3(a), allows the military to exercise jurisdiction over discharged soldiers—provided two prerequi­sites were satisfied. First, the offense must be punishable by confinement of 5 years or more, and second, the offense must not be triable in a civilian court of the United States, or of a state, territory, or the District of Columbia.
The article did not contain any requirement that the accused be a person of military status, subject to the Code at the time of trial by court-martial. The new article remedi 3d the situation that arose in Hirshberg, but Congress also went further and subjected persons to court-martial jurisdiction who committed offenses prior to discharge and who never returned to military service.
United States v. Gladue265 is the leading case dealing with an article 3(a) offense. Here the accused, who had been convicted of possession of heroin and of conspiracy to introduce the heroin into a military aircraft to effectuate its transfer to the United States, challenged his conviction because he had not been charged until after his discharge and subsequent reenlistment. The Court of Military Appeals held, however, that the accused could be tried for possession because the offense was punishable by confinement in Thailand, and was not triable in civilian courts. Although the accused argued that his possession offense was triable in civilian court because Congress intended the statute against possession to have extraterritorial application, the court ruled, under the rationale of United States v. Bovvman, 2" that because the possession of a controlled substance affected the peace and good order of the community only, and that as Congress had not specifically provided otherwise, the statute had no extraterritorial effect. Finally, the court held that although the effect of the accused's discharge on the specification alleging conspiracy was to require that at least one overt act be shown to have been committed during his current enlistment, numerous such acts had been committed.
264 Hearing on H.R. 2498 before a Subcommittee of the Committee on Armed Services, House of Representatives, 81st Cong. 1st Sess. 617 and 1262 (1949):
MR. ELSTON. I would like to ask you this question. I think it was since you completed your hearings that a case has been decided by the Supreme Court of the United States. DR. MORGAN. The Hirshberg case? MR. ELSTON. Yes. To the effect that a person who has left the service, that is, who has been separated from the service, cannot be tried subsequently by a military court for an offense committed prior to such separation. MR. KILDAY. Even though he has reenlisted? MR. ELSTON. Even though he has reenlisted. DR. MORGAN. That is right. MR. ELSTON. Now, you have not anything in your bill covering that? DR. MORGAN. If he has deserted in the earlier service, then the fact that he has been discharged from a later service does not deprive the court of jurisdiction. MR. ELSTON. Yes. He may have even committed a murder within 3 days of his separation from the service. DR. MORGAN. That is right. We have not covered that. MR. ELSTON. He reenlists and cannot be tried for it. DR. MORGAN. That is right. MR. ELSTON. I think this committee can write something into the law that will take care of that ridiculous situation. DR. MORGAN. Of course, the Supreme Court put it on the basis of the interpretation of the present statute, as I remember it, and that is that Congress did not intend to have the jurisdiction exercised over the man after he had once been discharged. MR. ELSTON. Well, I do not think Congress ever intended anything of the kind. DR. MORGAN. I know, but that is what they said. There was not anything in the statute which saved the jurisdiction, and, of course, they interpreted it that way... MR. SMART (reading): Subject to the provisions of article 43—this will be too long to write down, Mr. Chairman—any person charged with having committed an offense against this code punishable by confinement for 5 years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia while in a status in which he was subject to this code, shall not be relieved from amenability to 'trial by court-martial by reason of the termination of such status. Now, that will get the Hirshberg case where he reenlisted. It would get Hirshberg even though he had not reenlisted. MR. BROOKS. That will close up the loophole? MR. SMART. In my opinion it will, sir. MR. BROOKS. What is your opinion? MR. ELSTON. I am inclined to feel it would. MR. BROOKS. All right, if there is no objection, then, we will adopt that language.
See also United States v. Gallagher, 22 C.M.R. 296, 299-300 (C.M.A. 1957).
265 4 M.J. 1 (C.M.A. 1977).
266 260 U.S. 94 (1922).

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Thus the court-martial had jurisdiction to try the conspiracy offense.
In United States v. Mosley, 267 the accused argued that the court-martial which tried him did not have jurisdiction over the offenses with which he was charged because they were committed during a prior enlistment. In addressing this issue the Army Court of Military Review noted the general rule that "[Once a service member is discharged from the Armed Forces, that discharge operates as a bar to a subsequent trial for offenses occurring prior to discharge, except in those situations expressly saved by Article 3(a), of the Code." 268 To be saved by article 3(a), an offense must be "punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States...
"269
In Mosley, the accused was charged "with forgery of a U.S. postal money order and receipt of a stolen U.S. postal money order in violation of Articles 123 and 134." 270 Since the penalty for receipt of stolen property was only 1 year's confinement at hard labor, the court ruled that the first part of the article 3(a) test had not been met with regard to this offense. Accordingly, the court ruled that the court-martial lacked jurisdiction to try the accused for the offense of receipt of stolen property. 271
Forgery was punishable by 5 years' confinement at hard labor and, thus, satisfies the first part of the article 3(a) test. The court then looked to see if the accused could be tried in the courts of the United States for committing the offense of forgery in Germany. The court determined that the accused could be tried in the United States courts for forgery under 18 U.S.C. § 500 (1972) and that the statute had extraterritorial application. 272 For this reason, the court concluded that the courts of the United States had jurisdiction over the forgery offense and that the. offense could not be tried by court-martial under the provisions of article 3(a) of the Code. 273
(b)
Jurisdiction over civilians under article 3(a). A dramatic use of this expanded jurisdiction over a former serviceman by the Air Force brought a constitutional challenge to article 3(a) in the case of United States ex rd. Toth

v.
Quarles. 274 The accused, Toth, had been honorably discharged from the Air Force and was working in Pittsburgh, Pennsylvania, when Air Force authorities arrested him on charges of murder and conspiracy to commit murder. The accused was alleged to have committed the offenses while he was an airman on active duty in Korea.

At the time of his arrest, however, the accused had no connections with the military. He was returned to Korea and placed in confinement pending trial by general court-martial under the provisions of article 3(a).
The accused petitioned the United States Supreme Court for a writ of habeas corpus alleging that he was confined improperly by military authorities. In an opinion written by Justice Black, the Court ruled article 3(a) unconstitutional. In reaching his decision Justice Black stated that "Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians," he noted, "are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article IR of the Constitution." 275 It made no difference to Justice Black that Toth could not be prosecuted in any way by the Federal Government for the offenses committed while in Korea. 276
The Hirshberg and Toth cases illustrate the necessity of jurisdiction over the person and over the offense for the exercise of court-martial jurisdiction. In Hirshberg the accused, as a member of the Navy, was subject to military jurisdiction at the time of trial. He was a person who could be tried by court-martial. Court-martial jurisdiction was defeated because the intervening discharge had terminated jurisdiction over the offense charged.
On the other hand, To.h was a person who could not be subjected constitutionally to trial by court-martial. Jurisdiction over his person was lacking because he was a civilian who had severed all connections with the military. Although jurisdiction over the offense might not have been extinguished because of article 3(a), some military status on the part of the accused was necessary to justify a trial by court-martial. Because there was no military status, the Supreme Court ruled that Toth was not subject to trial by court-martial.
(c) Applicability of article 3(a) to persons having military status. Since the Toth decision, the military successfully has exercised article 3(a) jurisdiction over persons who have reenlisted in the Armed Forces and have been charged with offenses committed during their prior enlistments. The practice of permitting the Government to try active duty soldiers for offenses committed during previous enlistments was upheld by the Court of Military Appeals in United States v. Gallagher. 277
In Gallagher the alleged offenses occurred while the accused was being held by the Chinese Communists as a prisoner of war in Korea. In 1953, after his release, the accused was returned to the United States, where he was given a discharge so that he could reenlist, as his term of enlistment had expired while a prisoner. Two years after his
267 14 M.J. 852 (A.C.M.R. 1982).
268 Id. at 854.
269 Id. at 854 (emphasis in original).
278 Id. at 853.
271 Id. at 854.
272 Id. at 856.

Id. 274 WO U.S. 11 (1955). 279 Id. at 23 (emphasis added). 276 Id. at 21. 277 22 C.M.R. 296 (C.M.A. 1957).
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reenlistment, charges for unpremeditated murder, maltreatment of fellow prisoners, collaboration with the enemy, and
misconduct as a prisoner of war were brought against Gallagher. He was tried subsequently by general court-martial
and convicted for the alleged offenses. Upon review, an Army Board of Review dismissed the charges on the ground
of the court-martial's lack of jurisdiction over the offenses. The Judge Advocate General of the Army certified the
question of jurisdiction to the United States Court of Military Appeals.
The Court of Military Appeals, after reviewing the legislative history of article 3(a) concluded it was"abundantly clear that Congress intended to preserve jurisdiction over men like Gallagher." 278
The defense argued that article 3(a) was unconstitutional and that the holding in Hirshberg was applicable to Gallagher. The Court of Military Appeals, however, rejected the defense arguments and ruled that article 3(a) was constitutional when applied to persons, like Gallagher, who reenlisted and were subject to military jurisdiction. 279 In support of its decision the court stated that the Supreme Court's decision in Hirshberg indicated Congress had the power to confer military jurisdiction over persons who had reenlisted 2 80 For these reasons the Court of Military Appeals concluded that the Supreme Court's decision in Toth ruled article 3(a) unconstitutional only as it applied to civilians, like Toth, and did not apply to soldiers like Gallagher.
Although the holding in Gallagher was limited to the constitutional validity of article 3(a) in situations regarding reenlistment, subsequent decisions have indicated that in order to base court-martial jurisdiction on article 3(a), the requirements cf the provisions of the article must be met: that is, the offense must be punishable by 5 years' confinement or more, and the offense cannot be triable in either Federal or State courts 2 81
(d) Applicability of article 3(a) to a reservist released from active duty. Because court-martial jurisdiction histori­cally terminated on the release of a reservist from active duty, it was important to determine whether an Inactive reservist still has sufficient status to be tried for an offense committed while on active duty and whether court-martial jurisdiction is revived when the reservist returns to active duty.
In United States v. Wheeler, 282 the accused was an enlisted man who successfully had completed his active duty tour and had been transferred to an inactive Reserve status for completion of his military service obligation. While serving in the inactive Reserve status, the accused was charged with having committed a murder on active duty prior to being transferred to inactive Reserve status.
The Secretary of the Air Force, pursuant to applicable departmental regulations, ordered the accused to return to active duty for the purpose of being tried by court-martial. The accused executed a voluntary request to return to active duty and he was later tried and convicted by court-martial for the offenses charged.
The Court of Military Appeals held that the court-martial had jurisdiction to try the accused under article 3(a) notwithstanding the limitations thereon delineated in United States ex rd. Toth v. Quarles, 283 because Judge Latimer, writing for the court, interpreted the Toth case to preclude only trial of those persons who completely sever their military ties by discharge. Where any military relationship remains, however, jurisdiction exists under article 3(a). 284
Ferguson concurred, reasoning that the accused voluntarily had returned to active duty Chief Judge Quinn and Judge status, and citing the court's decision in Gallagher as precedent. 285
In United States v. Brown, 286 the Court of Military Appeals held that an enlisted member, whose active duty status had been terminated by the delivery of orders transferring him to an inactive Naval Reserve status, was not amenable to trial by court-martial for a conspiracy offense committed on active duty before he was transferred to the inactive Reserves. Because the accused was not subject to the provisions of article 3(a), the court found that the military lacked jurisdiction over his person and, accordingly, set aside the accused's conviction. The court noted, however, that the accused could be prosecuted by Federal authorities in a Federal district court for the offense with which he was charged.
It is apparent from the decisions in Wheeler and Brown that the presence of an inactive Reserve status continuing after the termination of an active duty period may have some jurisdictional significance. The presence of continuing inactive Reserve status may be sufficient to permit the military to exercise jurisdiction over an accused through the provisions of article 3(a). The use of article 3(a) to procure jurisdiction over a Reserve component soldier in an inactive Reserve status was often criticized, since its principal proponent, Judge Latimer, was no longer a member of the Court of Military Appeals. Its vitality, however, has been strengthened by recent amendments to article 3(d), UCMJ,
278 Id. at 300. 279 Id. at 303. 280 Id. at 302.
281 United States v. Gladue, 4 M.J. 1 (C.M.A. 1977); United States v. Steidley, 33 C.M.R. 320 (C.M.A. 1963); United States v. Frayer, 29 C.M.R. 416
(C.M.A. 1960). The two conditions, however, need not exist in the case of a continuing offense interrupted by a discharge.See United States v. Noble, 32
C.M.R. 413 (C.M.A. 1962); United States v. Martin, 28 C.M.R. 202 (C.M.A. 1959).
282 28 C.M.R. 212 (C.M.A. 1959). See Wheeler v. Reynolds, 164 F. Supp. 951 (N.D. Fla. 1958).
283 350 U.S. 11 (1955). The Supreme Court held that Article 3(a) courts-martial jurisdiction may not be constitutionally exercised over discharged soldiers

for offenses committed while on active duty.
284 28 C.M.R. at 220.
285 Id. at 223-25 (Quinn, C.J., and Ferguson, .1., concurring).
286 31 C.M.R. 279 (C.M.A. 1962).

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exempting a member of the. Reserve components from termination of court-martial jurisdiction by their subsequent release from active duty training. Moreover, in light of the broad mandate of article 3(d), UCMJ, article 3(a) may no longer be necessary to procure jurisdiction over Reserve component soldiers. Article 3(d), standing alone, provides a statutory basis to retain jurisdiction as long as the soldier retains some military status. 287
(2) Persons in custody serving a court-martial sentence. Article 2(a)(7) of the Code provides thatip]ersons in custody of the Armed Forces serving a sentence imposed by a court-martial "288 are subject to the Code. The Manual also states that such persons remain subject to military jurisdiction even after the execution of a discharge. 289
The United States Supreme Court upheld the constitutionality of a similar provision in 1921 2 90 The present provision has withstood attacks on its validity in the Federal courts, 291 the Courts of Military Review,292 and the Courts of Military Appeals. 293
(3) Persons obtaining a discharge fraudulently. Persons who obtain fraudulent discharges from the military remain subject to court-martial jurisdiction for offenses committed prior to the issuance of the discharge. Article 3(b) of the Code addresses the problem of fraudulent discharges and provides in part that:
Each person discharged from the Armed Forces who is later charged with having fraudulently obtained his discharge is, subject to ... (article 43), subject to trial by court-martial on that charge and is after apprehension subject to this chapter while in the custody of the Armed Forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge. 294
The application of this provision is limited in two ways. First, the provision does not permit the military to exercise jurisdiction over offenses committed during the time period between the fraudulent separation and apprehension. The second limitation is that jurisdiction over offenses committed before the issuance of the fraudulent discharge may not be exercised until after the accused has been convicted of fraudulent discharge.
In Wickham v. Hal1,295 the petitioner was a female private first class in the Army who obtained a discharge before the end of her enlistment on the ground of pregnancy. 296 Information subsequently received suggested that the petitioner may have deliberately defrauded the Government concerning her condition. The discharge was revoked and charges under article 83 for fraudulent separation were preferred and referred. At trial, the petitioner sought a continuance to petition for extraordinary relief.
The Court of Military Appeals addressed the question of whether article 3(b) was constitutional. Petitioner claimed that Congress could not subject her, a civilian, a discharged ex-soldier, to court-martial jurisdiction. The Government argued that article 3(b) was a necessary and proper exercise of Congress' power to raise and maintain as well as to regulate the Armed Forces. Judge Cook authored the lead opinion and found article 3(b) to be a constitutionally sound basis for court-martial jurisdiction. Judge Fletcher voted to dismiss the petition until a record of the relevant facts was made in the trial court. 297 Chief Judge Everett dissented from the denial of relief. He found article 3(b) to be unconstitutional in that it made civilians subject to court-martial jurisdiction.
As a result of the denial of her petition, PFC Wickham petitioned for a writ of habeas corpus in the Federal district court. Her petition was denied and the denial was upheld on review by the FLU Circuit Court of Appeals. 298 299 Ultimately, the Army granted the petitioner's request for a discharge for the good of the service. In United States v. Cole, 3°0 the Court of Military Appeals revisited the problems of Wickham v. Hall. Cole, knowing he was facing punitive measures, signed off on his own post clearance papers, obtained his discharge, and went home. Three months later, however, Cole was forcibly taken from his home in Winter Haven, Florida and taken back for
287 See Murphy v. Garrett, 29 M.J. 469 (C.M.A. 1990) (jurisdiction existed over Marine Corps Reserve officer for offenses committed on active duty prior
to his entering the Reserves).
288 UCMJ art. 2(a)(7).
289 R.C.M. 203.See United States v. Holston, 41 C.M.R. 589 (A.C.M.R. 1969).

293 Kahn v. Anderson, 255 U.S. 1, 7 (1921); Carter v. MClaughry, 183 U.S. 365, 383 (1902).
291 Ragan v. Cox, 320 F.2d 815 (10th Cir. 1963); Simcox v. Madigan, 298 F.2d 742 (9th Cir.), cert. denied, 370 U.S. 964 (1962). See also Simcox v.
Harris, 324 F.2d 376 (8th Cir. 1963); Lee v. Madigan, 248 F2d 783 (9th Cir. 1957), rev'd on other grounds,358 U.S. 228 (1959).

292 United States v. Sylva, 5 M.J. 753 (A.C.M.R. 1978).
293 United States v. Ragan, 33 C.M.R. 331 (C.M.A. 1963); United States v. Nelson, 33 C.M.R. 305 (C.M.A. 1963). Ragan was convicted of assault on a
fellow prisoner (art. 128) and assault upon a person in the execution of military police duties (art. 134). Nelson was convicted of offering violence to a
superior officer (art. 90). Judge Ferguson, in a concurring opinion in Nelson doubted the validity of the exercise of such jurisdiction, but concurred
because of the Supreme Court's undisturbed Kahn decision.See Peebles v. Froehlke, 46 C.M.R. 266 (C.M.A. 1973) (jurisdiction over the person continues
for purposes of a rehearing despite an intervening dishonorable discharge).
294 UCMJ art. 3(b).

296 12 M.J. 145 (C.M.A. 1981).
296 See AR 635-200, chap. 8.
297 12 M.J. at 153-54 (Fletcher, J., concurring in the result). Judge Fletcher also advised the petitioner that the Federal district court was available to

review her claim.
298 Wickham v. Hall, 706 F.2d 713 (5th Cir. 1983).
299 See AR. 635-200 chap. 10.
393 24 M.J. 18 (C.M.A. 1987).

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trial at Fort Stewart, Georgia. Cole challenged jurisdiction alleging that he was now a civilian and civilian courts should have the responsibility of determining whether his discharge was lawful.
The Court of Military Appeals disagreed. Judge Sullivan writing for the majority held that a court- martial has jurisdiction to determine if a soldier fraudulently procures a discharge, while noting that a soldier can seek habeas corpus in the Federal district courts without exhausting military remedies 3 01 Consistent with his dissent in Wickham v. Hall, Chief Judge Everett forcefully dissented noting that Cole's DD Form 214 was not forged and was voluntarily given to Cole by military authorities. 302 Significantly, however, the case was denied certiorari by the Supreme Court on October 5, 1987.
(4)
Deserter who received a discharge for a subsequent period of service. Soldiers who desert from the Armed Forces remain subject to the jurisdiction of the Code even if separated from a subsequent period of service. 303 This is true regardless of the type of separation from the subsequent period of service. 3°4

(5)
Effect of uninterrupted status as a person subject to the Code. As noted earlier, a soldier's discharge normally terminates jurisdiction. What if the discharge is immediately followed by a reenlistment which in effect permits an uninterrupted status? Although the Manual for CourtsMartial and some early case authority 305 permitted the exercise

-
of jurisdiction over offenses committed during the prior period of service, the Court of Military Appeals at one time adopted a rule which might be stated as follows: Upon discharge and subsequent reenlistment, a soldier cannot be tried by court-martial for an offense committed during the prior service unless the offense meets the criteria of article 3(a) UCMJ. This blanket prohibition of the exercise of court-martial jurisdiction after any discharge (but for offenses saved under article 3(a)) also defeated jurisdiction in the case of a "short term" discharge. This occurs when a soldier is granted a discharge before the normal expiration date of a term of enlistment for the purpose of allowing the soldier to immediately reenlist. A short term discharge creates no significant or practical break in active duty service. Typically, the discharge certificate is not delivered until after the reenlistment has been accomplished.
This rule was derived from the Court of Military Appeals decision in United States v. Ginyard. 306 In Ginyard the accused was assigned to duty in the United States, and wanted to be transferred to Europe with his dependents. Because the time remaining on his enlistment was too short to permit such assignment, the accused signed "an intent to reenlist." The signing of the short term discharge and reenlistment the following day, was accomplished in Germany. After his reenlistment, the accused was charged with six specifications of making false military pay vouchers during his prior enlistment and tried by general court-martial. At his trial, the accused argued that the charged offenses were committed during a prior enlistment and that they were not subject to court-martial jurisdiction. The court-martial ruled that it had jurisdiction over the offenses and denied the accused's motion. The accused then pleaded guilty to the charges and specifications and was sentenced to confinement at hard labor for 1 year and reduction to El.
An Army Board of Review affirmed the accused's conviction, 307 but the Court of Military Appeals reversed it, and held that the court-martial did not have the jurisdiction to try Ginyard for the charged offenses. In an attempt to eliminate further confusion in cases involving discharges and immediate reenlistments, the court proposed the rule discussed above. 3°8
This rule of termination of jurisdiction would not apply, however, where the offense in question was of a continuing nature and carried over into the new period of service. A good example of the application of both the general rule and the continuing offense exception is United States v. Gladue, 309 noted in the earlier discussion on application of article 3(a). An overseas possession of heroin charge, committed prior to discharge, was subject to jurisdiction under article 3(a). A charge alleging conspiracy to import heroin was also subject to jurisdiction because it was a continuing offense which carried over into the new period of enlistment.
The rule adopted in Ginyard was reversed in United States v. Clardy. 31° The Court of Military Appeals conducted an extensive review of the development of the rule in Ginyard's case and concluded that it was an unjustified expansion of the Supreme Court's ruling in United States ex rel Hirshberg v. Cooke. 3 I I The court left little doubt that a discharge after completion of the original term of obligated service would terminate court-martial jurisdiction even if the soldier then immediately reenlists. But, where the discharge is granted before the end of the original term of service for the benefit of both the Government and the soldier, and there is no break or hiatus in actual service, there should be no termination of jurisdiction. This is clearly consistent with the intent of Congress to limit the circumstances in which a
301 Id. at 19-23.
302 Id. at 27-31.
333 UCMJ art. 3(c).
304 See United States v. Huff, 22 C.M.R. 37 (C.M.A. 1956).
3°5 See, e.g., United States v. Noble, 32 C.M.R. 413 (C.M.A. 1962) (discharge certificate did not terminate continuing jurisdiction); United States v.

Solinsky, 7 C.M.R. 29 (C.M.A. 1953) (jurisdiction existed where discharge was for purposes of reenlistment).
306 37 C.M.R. 132 (C.M.A. 1967).
307 36 C.M.R. 683, 687 (A.B.R. 1966).

308 37 C.M.R. at 136. The court's straightforward rule placed emphasis on the discharge itself and not the reasons or purposes of the discharge. The rule
is discussed in detail at Woodruff, The Rule in Ginyard's Case—Congressional Intent or Judicial Field Expedient,21 A.F.L. Rev. 285 (1979).
309 4 M.J. 1 (C.M.A. 1977).
310 13 M.J. 308 (C.M.A. 1982).
3" 336 U.S. 210 (1949).

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soldier who commits a serious offense while in military service may escape punishment by a court-martial. 312
In United States v. King, 313 the Court of Military Appeals held that for a discharge for the purpose of reenlistment to be effective, three elements must exist: the delivery of a valid discharge certificate, a final accounting of pay, and the completion of the clearing process required under appropriate service regulations to separate the soldier from the military service. In King, the accused submitted a request for an early reenlistment and during his reenlistment ceremony, he was given a discharge certificate. Thereafter, King refused to complete the reenlistment ceremony and left his unit without authority. At his court-martial, King contended that he had been validly discharged and was no longer subject to the Uniform Code of Military Justice. The Court of Military Appeals disagreed. The court found that of the three prerequisites for an effective discharge, only one was satisfied, that being the delivery of the discharge certificate 3 14 Thus, court-martial jurisdiction was not lost.
(6) Jurisdiction over retired soldiers. Retired soldiers of the Armed Forces drawing retired pay are subject to the " Uniform Code of Military Justice and can be tried by court-martial for offenses committed while in a retired status. The Uniform Code of Military Justice specifically provides that military jurisdiction applies to "Netired members of a regular component of the Armed Forces who are entitled to pay," 315 "[r]etired members of a Reserve Component who are receiving hospitalization from an Armed Force," 316 and"[m]embers of the Fleet Reserve and Fleet Marine Corps Reserve."317
The validity of these provisions was challeng(.4 in United States v. Hooper. 318 In Hooper a retired rear admiral was charged with sodomy, conduct of a nature to bring discredit upon the Armed Forces, and conduct unbecoming an officer and a gentleman. He was tried and convicted by general court-martial and sentenced to dismissal and total forfeitures.
On appeal, the Court of Military Appeals upheld the exercise of court-martial jurisdiction over the accused. In support of its decision the court relied upon the language in article 2(aX4) of the Code which provides in part that "[r] etired members of a regular component of the Armed Forces who are entitled to pay" 319 were subject to the UCMJ.
The court, in addition, stated that with respect to article 2(aX4), no recall to active duty from the retired list was required as a condition precedent to jurisdiction. 320 In the court's opinion, jurisdiction attached when charges were served on the accused and he personally appeared before the court-martia1. 321 The court also stated that a retired member of the regular component of the Armed Forces entitled to receive pay "is a part of the land and naval forces."322
Although the validity of these provisions has been upheld, 323 the United States Army rarely has tried retired persons by courts-martial because of a Department of the Army policy which provided thatIdetired personnel subject to the Code will not be tried for any offenses by any military tribunal unless extraordinary circumstances are present linking them to the military establishment or involving them in conduct inimical to the welfare of the nation." 324 The effect of the Army's policy has been to eliminate the courts-martial of retired Army soldiers.
The Powell Committee 325 recommended doing away with the exercise of court-martial jurisdiction over retired soldiers. In part the Committee concluded:
Retired members of the Armed Forces are merged with the general civilian population of the United States. They should be subject to the same laws as their neighbors with the same obligations and the same freedom of action. Courts-martial jurisdiction imposes an obligation to abide by a different set of laws. Good order and discipline in the Armed Forces are not benefited by continuing jurisdiction over retired members unless they are on active duty.326
312 See R.C.M. 203(a) discussion.
313 27 M.J. 327 (C.M.A. 1989).
314 Id. at 329.
315 UCMJ art. 2(a)(4).
316 UCMJ art. 2(a)(5).
317 UCMJ art. 2(a)(6).
318 26 C.M.R. 417 C.M.A. (1958).
319 Id. at 425.
3213 Id. at 420.
321 Id. at 421.
322 Id. at 422.
323 See United States v. Overton, 24 M.J. 309 (C.M.A. 1987) (jurisdiction over member of U.S. Fleet Marine Corps Reserve upheld under UCMJ art.

2(a)(6)); Pearson v. Bloss, 28 M.J. 376 (C.M.A. 1989) (jurisdiction over retired, enlisted airman upheld); Hooper v. United States, 326 F2d 982 (Ct. Cl.

1964); Chambers v. Russell, 192 F. Supp. 425 (N.D. Cal. 1961); Hooper v. Hartman, 163 F. Supp. 437 (S.D. Cal. 1958).
324 JAGJ 1956/4914, 29 June 1956, "Courts-Martial," 7 Dig. Ops. JAG § 45.8 (1957-58). In 1989 this policy was placed in AR 27-10, para. 5-2b(3). Army
policy now is that prior approval from HODA must be obtained prior to referral of court-martial charges against retired soldiers.

325 In 1959, the Secretary of the Army, Wilber M. Bruckner, appointed a committee (1) to study the effectiveness of the Uniform Code of Military Justice,
(2) to analyze any injustices or inequities existing under the Code, and (3) to submit proposals for improving the Code. The Committee became known as the Powell Committee for Lieutenant General Herbert 13. Powell. USA, who headed the study. The Committee Report was submitted on 18 January 1960. See Report to Honorable Wilber M. Brucker, Secretary of the Army, by the Committee on the Uniform Code of Military Justice (and) Good Order and Discipline in the Army (1960).
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Despite the recommendations of the Powell Committee, retired personnel entitled to pay are still subject to the Uniform Code of Military Justice. 327
326 Id. at 175. 322 UCMJ art. 2(a)(4).
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Chapter 10 Jurisdiction Over Civilians
10-1. Peacetime jurisdiction
With the enactment of the Uniform Code of Military Justice, Congress exposed several categories of civilians to trial
by courts-martial for offenses committed during peacetime. For example, article 2(a)(11) of the Code specifically
provides for the exercise of military jurisdiction over "persons serving with, employed by, or accompanying the armed
forces outside the United States. ... " 1
Attempts by the military to try civilians by courts-martial under the provisions of article 2(a)(11) of the Code,
however, were not successful. The first in a number of decisions prohibiting the practice was rendered in 1957 when
the Supreme Court of the United States held that the military did not have jurisdiction to try the wives of two
American soldiers for capital offenses committed overseas.
In Reid v. Covert,2 the wife of an Air Force sergeant stationed in England was tried by general court-martial and
convicted of murdering her husband. In Kinsella v. Krueger, 3 a companion case, the accused was the wife of an Army
officer stationed in Japan. Like Mrs. Covert, she was charged with the murder of her husband and was tried and
convicted by general court-martial on the charge.
In both cases the women filed writs of habeas corpus contending that the provision of the UCMJ undfs which the
Government asserted jurisdiction was unconstitutional. The Supreme Court agreed with the petitioners and held that the
wives of servicemen"could not constitutionally be tried by military authorities," 4 for capital offenses committed
overseas. A majority of the Court determined that, as civilians charged with capital offenses in time of peace, they
were entitled to trial in a civilian court under the procedural safeguards guaranteed by the Bill of Rights. 5
The Court's decisions in these two cases caused others to question whether the military could exercise jurisdiction over civilian dependents committing noncapital offenses overseas and whether the military could exercise jurisdiction over civilian employees of the Armed Forces committing capital and noncapital offenses overseas.
In 1960, the Supreme Court in Grisham v. Hagen° applied the reasoning set forth in Reid v. Covert 7 and held that the military did not have jurisdiction to court-martial a civilian Army employee for a capital offense committed overseas during peacetime. In Grisham the accused was a civilian employed by the United States Army in France who was tried by general court-martial for premeditated murder. He was found guilty of the lesser included offense of unpremeditated murder and sentenced to life imprisonment.
The accused petitioned for a writ of habeas corpus alleging in part that "Article 2(11) [now 2(aX11)] was unconstitutional as applied to him, for the reason that Congress lacked the power to deprive him of a civil trial affording all of the protections of Article III and the Fifth and Sixth Amendments of the Constitution." 8 In effect, Grisham argued that, as a civilian, he was entitled to the constitutional protections granted to those tried in civilian
courts. In Grisham, the Supreme Court determined that civilian employees are entitled to trial by jury, just as civilian dependents are, and accordingly, held that the military did not have jurisdiction to try the accused for a capital offense committed overseas in peacetime. 9
In Kinsella v. United States ex rel. Singleton, 1° also decided in 1960, the accused and her husband, a soldier stationed in Germany, pleaded guilty in a trial by court-martial to charges of involuntary manslaughter in the death of one of their children. The accused later appealed her conviction on the grounds that the provision of the Code, authorizing prosecution by "court-martial trials of persons accompanying the Armed Forces outside the United States was unconstitutional as applied to civilian dependents charged with noncapital offenses." 11 The Supreme Court held
1 UCMJ art. 2(a)(11). The provisions of subsections (a)(2) through (12) of article 2 may all be said to assert a jurisdictional claim over persons who, because they are not serving on active duty as a member of an armed forces, may properly be called civilians. Article 2 of the UCMJ was amended in 1979 with the addition of subsections (b) and (c). See supra chap. 9. The original provisions of article 2 were then designated article 2(a). Earlier attempts
to exercise court-martial jurisdiction over civilians had generally failed. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), (military commission,
operating during civil war had no jurisdiction to try a civilian where civilian courts were open and operating).
2 354 U.S. 1 (1957). The Court reached the decision in this case and the companion case of Kinsella v. Krueger under rather complex circumstances. In
1956 the Supreme Court had sustained military jurisdiction over the accuseds under the provision which is now article 2(8)(11) in a 5-3 decision, with Mr.
Justice Frankfurter reserving his opinion. See Reid v. Covert, 351 U.S. 487 (1956); Kinsella v. Krueger, 351 U.S. 470 (1956). In 1957, the Court reversed
the 1956 Covertand Kinsella decisions, with Justices Frankfurter, Harlan (who also changed his vote from 1956) and Brennan (who had joined the Court

after the 1956 decisions) joining the 1956 dissenters to form the majority.
3 354 U.S. 1 (1957).
4 Id. at 5.

5 Chief Justice Warren and Justices Black, Douglas, and Brennan concluded that all peacetime military trials of civilians were unconstitutional. Justices
Frankfurter and Harlan limited their concurrence to the trial of a civilian dependent for a capital offense.
6 361 U.S. 278 (1960).

7 354 U.S. 1 (1957).
8 361 U.S. at 279.

9 Id. at 280. Mr. Justice Frankfurter and Mr. Justice Harlan concurred because the case involved a capital offense. Mr. Justice Whittaker and Mr. Justice
Stewart dissented. They believed that there was a distinction between employees and dependents, that the civilian employees were part of the Armed
Forces and that Congress constitutionally could make them subject to military jurisdiction.
10 361 U.S. 234 (1960).
11 Id. at 235-36.

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that the military could not exercise jurisdiction over civilian dependents charged with noncapital offenses,I 2 and stated, in addition, that the test of jurisdiction is "one of status, namely, whether the accused in the court-martial proceedings is a person who can be regarded as falling within the term 'land and naval forces.' "13
In McElroy v. United States ex rel. Guagliardom and Wilson v. Bohlender,I 5 the petitioners were civilian employees of the Armed Forces who were tried by courts-martial for noncapital offenses. Both individuals were convicted and both appealed their convictions contending that the military did not have jurisdiction to try them for noncapital offenses committed overseas. The Supreme Court ruled that the military did not have jurisdiction to try a civilian employee who committed a noncapital offense overseas during peacetime.I 6
Through these decisions, the Supreme Court established the general rule that civilian offenders, who commit offenses while accompanying the Armed Forces overseas during peacetime, cannot be tried by military courts-martial under article 2(a)(1 1) of the Code.
Because of these decisions limiting court-martial jurisdiction, the resolution of criminal offenses by American civilians overseas is uncertain. Frequently, for often unclear or imprecisely articulated motives, the foreign prosecutorial authorities will institute criminal action. But, sometimes, even relatively serious criminal misconduct will not be prosecuted by the foreign authorities. 17 In such cases, the military commanders whose commands are adversely affected by the criminal activities of such persons must seek administrative or diplomatic resolution of the problem.
10-2. Wartime jurisdiction
Jurisdiction over "persons serving with, or accompanying an armed force in the field," in time of war, is granted expressly by the Code.' 8 The Supreme Court has never denied military jurisdiction over civilians accompanying the Armed Forces in the field during time of war. In his opinion in Reid v. Covert,I 9 Mr. Justice Black alluded to the exercise of military jurisdiction over civilians in time of war. In part he said:
There have been a number of decisions in the lower federal courts which have upheld military trial of civilians
performing services for the armed forces "in the field" during time of war. To the extent that these cases can be
justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on
the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have
broad power over persons on the battlefront. From a time prior to the adoption of the Constitution the extraordi­nary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of
some civilians in that area by military courts under military rules 2 0

In United States v. Averette, 21 the accused, a civilian employee of an Army contractor in Vietnam, was tried and convicted by general court-martial for conspiracy to commit larceny and attempted larceny. On review the Court of Military Appeals held that Averette, a civilian, was not subject to trial by court-martial.
In reaching the decision, the court stated "that the words 'in time of war' mean, for the purposes of Article 2(a)(10), ... a war formally declared by Congress." 22 - Because Congress had not formally declared war in Vietnam, the court held that the accused was not subject to court-martial jurisdiction. 23 In addition the court was careful to note that it was
12 Id. at 249.
13 Id. at 241. Mr. Justice Whittaker and Mr. Justice Stewart concurred. Mr. Justice Harlan and Mr. Justice Frankfurter dissented, asserting that in
noncapital cases there was justification for the exercise of military jurisdiction over nonmilitary personnel because of the closeness of the relationship

between the civilian defendant and the military establishment.
14 361 U.S. 281 (1960).
15 Id., a companion case decided the same day.
16 Id. at 284. The majority determined that this result followed the rationale of the decisions inGrisham, Kinsella, and Covert. Mr. Justice Whittaker and Mr.

Justice Stewart dissented, claiming that civilian employees of the armed services were "rnembers'of the Armed Forces and had nearly the same effect on
security and disciplinary problems as did military soldiers. Mr. Justice Harlan and Mr. Justice Frankfurter again dissented, distinguishing between

noncapital and capital offenses.
17 See Everett and Hourcte, Crime Without Punishment—Ex-servicemen, Civilian Employees and Dependents. 13 JAG L. Rev. 184 (1971). See
alsoReport to the Judge Advocate General by the Wartime Legislation Team, at 13-16 (Sept. 1983), reprinted in104 Mil. L. Rev. 139 (1984).

18 UCMJ art. 2(a)(10).See R.C.M. 202 (1984 analysis) concerning the interpretation of In the field' and "accompanying." See also Latney v. Ignatius, 416
F.2d 821 (D.D.C. 1969); Perlstein v. United States, 57 F. Supp. 123 (M.D. Pa. 1944), affd, 151 F.2d 167 (3d Cir. 1945), cert. granted, 327 U.S. 777

(1946), cert. dism'd as moot, 328 U.S. 822 (1946); Hines v. Mikell, 259 F. 28 (4th Cir. 1919), cert. denied, 250 U.S. 624 (1919); Ex parte Jochen, 257 F.
200 (D. Tex. 1919); Ex parte Falls, 251 F. 415 (D.N.J. 1918); Ex parte Gerlach, 247 F. 616 (D.N.Y.); Shilman v. United States, 73 F. Supp. 648 (D.N.Y.
1947), rev'd on other grounds, 164 F.2d 649 (2d Cir. 1947); In re Berue, 54 F. Supp. 252 (S.D. Ohio 1944); McCune v. Kilpatrick, 53 F. Supp. 80 (D. Va.
1943); In reDiBartolo, 50 F. Supp. 929 (D.N.Y. 1943).

19 354 U.S. 1 (1957). 20 Id. at 33. The Court said: We have examined all the cases of military trials of civilians by the British or American Armies prior to and contemporaneous with the Constitution that the Government has advanced or that we were able to find by independent research. Without exception these cases appear to have involved trials during wartime in the area of battle—In the field'—or in occupied enemy territory." Id. at 33, n.60. In time of war it is clear that the military can exercise court-martial jurisdiction over civilians accompanying Armed Forces In the field; and in a number
of cases the exercise of such jurisdiction has been upheld. See supra note 18.
21 41 C.M.R. 363 C.M.A. 1970).
22 Id. at 365.

23 Id
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not expressing--
an opinion on whether Congress may constitutionally provide for court-martial jurisdiction over civilians in time of a declared war when these civilians are accompanying the armed forces in the field. Our holding is limited--for a civilian to be triable by court- martial in "time of war," Article 2(10) means a war formally declared by Congress.24
This strict construction of the term "in time of war" was almost immediately criticized as unjust by a lower military court. In United States v. Grossman, 25 the Army Court of Military Review dismissed the charges against a civilian employee of a Government contractor in Vietnam applying the Averette 26 holding. In that case the accused had been convicted of one specification of involuntary manslaughter and two specifications of assault with a dangerous weapon and sentenced to 5 years' confinement. The court noted that "[a]s far back as the Indian Wars, courts-martial jurisdiction has been exercised over civilians serving with armies in the field during hostilities which were not formally declared wars."27 In referring to Averette, the court further stated, "[d]espite this and the fact that this accused will probably never be retried for the offenses involved in this case, we are constrained [by the decision in Averette] to hold that the court-martial lacked jurisdiction" over the accused. 28
The Court of Military Appeals definition of "in time of war" was a matter of statutory construction and consequently does not necessarily also apply to the term "peacetime" as used in the Supreme Court's opinions restricting the exercise of court-martial jurisdiction under article 2(a)(1 1). It may be that, for purposes of exercising court-martial over "persons serving with, employed by, or accompanying the armed forces outside the United States... ,"29 some less well defined state of armed conflict or hostilities is sufficient to invoke the level of "broad power over persons on the battlefront" that a military commander may properly exercise. 30
10-3. Conclusion
Decisions of the United States Supreme Court and the United States Court of Military Appeals have held that peacetime courts-martial jurisdiction over civilian dependents and employees in overseas situations is unconstitutional. While neither the Supreme Court nor the Court of Military Appeals has ruled on the potential constitutional issue of whether civilian dependents and employees accompanying an armed force in a time of war are subject to court-martial jurisdiction, other Federal courts have upheld the exercise of military jurisdiction in such cases. 31
The Court of Military Appeals, however, while not passing on the constitutionality of wartime jurisdiction, has strictly construed the term "time of war" to mean a time when war has been declared formally by Congress.
24 Id.Accord, Zamora v. Woodson, 42 C.M.R. 5 (C.M.A. 1970).
25 42 C.M.R. 529 (A.C.M.R. 1970).
28 41 C.M.R. 363.
27 42 C.M.R. at 530 (citing Winthropat 101).
28 42 C.M.R. at 530.
29 UCMJ art. 2(a)(11).
38 Reid v. Covert; 354 U.S. 1, 33 (1957). See W. Winthrop at 101 (2d ed. 1920).
31 See supra note 18.
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Chapter 11
Jurisdiction Over the Offense
11-1. Constitutional provisions
As noted in previous chapters, the Constitution, specifically article I, provides in part that Congress has the power "No make Rules for the Government and Regulation of the land and naval Forces." 1 It further provides that Congress has the power "Rio make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers... "2 These provisions indicate an awareness of the need for the military to have a system of procedural rules and regulations and protections that may be different from those prescribed by article III of the Constitution.
In cases not arising in "the land and naval forces," an accused is entitled to "the benefit of an indictment by a grand jury" and a "trial by jury" as guaranteed by the fifth and sixth amendments and article III of the Constitution. 3 The fifth amendment, as noted,"specifically exempts 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger' from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury."4
Under the fifth amendment, therefore, the protections of "indictment" and "trial by jury" are not available to persons tried in the military justice system.
The powers granted to the Congress mentioned above and the exemption of cases in the military justice system from the guarantees of the fifth amendment are the sources of military law which provide for the creation of a unique system of military justice permitting the exercise of court-martial jurisdiction over persons in the Armed Forces.
11-2. Historical perspective
Since the American Revolution, the military has been given broad discretion in dealing with matters relating to military justice.5 The Supreme Court of the United States, as early as 1863, recognized the importance of the military's exercising jurisdiction over persons subject to courts-martial and, consequently, the Court traditionally refrained from
involvement in cases where the military establishment has dealt with such cases. 6
Consonant with a recognition of the broad discretion of the military, it generally was assumed that military status, that is, being subject to trial by courts- martial, was a sufficient basis for the exercise of military jurisdiction over an accused. In 1969, however, the Supreme Court in the case of O'Callahan v. Parker 7 rejected this assumption and significantly changed the law as it related to court-martial jurisdiction.
a. The service connection requirement - 1969 to 1987.
(1) O'Callahan v. Parker. In O'Callahan v. Parker8 the accused was charged with attempted rape, housebreaking, and assault with intent to commit rape. He was tried and convicted by general court-martial and sentenced to a dishonorable discharge, 10 years' confinement at hard labor, and forfeiture of all pay and allowances. His conviction was affirmed by an Army Board of Review, 9 and the United States Court of Military Appeals denied O'Callahan's petition for review. 10
The facts in the O'Callahan case are significant. In July 1956, O'Callahan was stationed at Fort Shaffer, Hawaii. On the evening of July 20, 1956, he and a friend, both dressed in civilian clothes, left the post and went into Honolulu. After a few drinks at a Honolulu hotel bar, the accused entered the residential section of the hotel and broke into the room of a 14- year-old girl. The accused attempted to rape the young girl, who resisted and screamed for help. The accused fled the room and was apprehended by a hotel security guard who released him to the Honolulu police. Upon learning that the accused was a soldier, the police returned him to military authorities. After interrogation by the military police, O'Callahan confessed.
O'Callahan was court-martialed, served his confinement, and placed on parole. He was later reimprisoned as a parole
U.S. Const. art. I, § 8, cl. 14.
2 U.S. Const. art. I, § 8, cl. 18.
3 U.S. Const. art. III, § 2, provides

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have
been committed; but when not committed within any state, the Trial shall be at such Place or Places as the Congress may by Law have directed.
4 O'Callahan v. Parker, 395 U.S. 258, 261 (1969) (emphasis added). In addition, Justice Douglas stated that "fa) court-martial is tried, not by a jury of the defendants peers which must decide unanimously, but by a panel of officers empowered to act by a two-thirds vote? Id. at 263. See Ex parte Quinn, 317
U.S. 1, 38-45 (1942).
5 SeeWarren, The Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181, 187 (1962).
6 Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 ( 1 863).
7 395 U.S. 258 (1969).
8 Id.
9 United States v. O'Callahan, CM 393590 (A.B.R. 1956).
10 United States v. O'Callahan, 7 C.M.A. 800 (1957). Ten years later, the United States Court of Military Appeals denied O'Callahan's petition for writ of

errorcoram nobis. United States v. O'Callahan, 37 C.M.R. 188 (C.M.A. 1967).

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violator. During this second incarceration, he filed a petition for a writ of habeas corpus alleging the military had no jurisdiction to try him for off-post, nonmilitary offenses committed while on evening pass. The case eventually wound its way to the Supreme Court and Justice William 0. Douglas." Justice Douglas, writing for the majority,' 2 found that O'Callahan's offenses were not "service connected," thus the military could not try him. 13 Justice Douglas noted that O'Callahan was off post, off duty, and dressed in civilian clothing at the time of his offenses. In addition, his offenses were perpetrated against a civilian victim and were of no military significance. Justice Douglas further stated that O'Callahan's offenses were crimes committed during peacetime "within our territorial limits, not in the occupied zone
of a foreign country." 14
The majority opinion briefly, and unfavorably, compared military tribunals to civilian courts, noting the inadequacies and deficiencies of the military system. The opinion then discussed earlier Supreme Court decisions that excluded discharged soldiers, 15 civilian dependents, 16 and employees accompanying the Armed Forces overseas 17 from military jurisdiction. The Court concluded that a soldier's:
crime, to be under military jurisdiction, must be service connected, lest "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger," as used in the Fifth Amendment, be expanded to deprive every member of the benefits of an indictment by a grand jury and a trial by a jury of his peers. 18
Unfortunately, the Supreme Court did not define"service connection" and for 2 years, military courts struggled to fill that void. Then, in 1971, the Court attempted to clear up the uncertainty generated by O'Callahan in the case of Relford v. Commandant. 19
(2) Relford v. Commandant. Relford was tried and convicted by general court-martial and sentenced to death for kidnapping and raping two women. His sentence was later reduced by an Army Board of Review to a dishonorable discharge, confinement at hard labor for 30 years and total forfeitures.
Relford appealed denial of his petition for writ of habeas corpus to the Supreme Court alleging that the military did not have jurisdiction to try him because, although the offenses for which he was convicted occurred on military reservation property, they were not service connected. In addressing the issue presented, Justice Blackmun reviewed the O'Callahan decision and the factors relied upon by the Court in finding that O'Callahan's offense was outside military jurisdiction. The Court then articulated several considerations that suggest a lack of service connection:
(1)
The soldier's proper absence from the base.

(2)
The crime's commission away from the base.

(3)
Its commission at a place not under military control.

(4)
Its commission within our territorial limits and not in an occupied zone of a foreign country.

(5)
Its commission in peacetime and its being unrelated to authority stemming from the war power.

(6)
The absence of any connection between the defendant's military duties and the crime.

(7)
The victim's not being engaged in the performance of any duty relating to the military.

(8)
The presence and a -milability of a civilian court in which the case can be prosecuted.

(9)
The absence of any flouting of military authority.

(10)
The .absence of any threat to a military post.

(11)
The absence of any violation of military property.

(12)
The offense's being among those traditionally prosecuted in civilian courts.

After reviewing the facts in Relford's case and comparing them with the factors present in O'Callahan, the Court concluded that Relford's offenses were service connected and triable by court-martial. The Court therefore affirmed Relford's conviction by military court-martial. The significance of the Relford decision is that it identified important factors to be considered by courts in deciding whether offenses committed by military soldiers are service connected and triable by courts-martial.
In reaching this conclusion, the Court also identified nine separate factors, the existence of which would tend to establish court-martial jurisdiction over an offense. Those factors were:
11 The Federal district court denied relief, United States ex tel. O'Callahan v. Parker, 256 F. Supp. 679 (M.D. Pa. 1966), as did the circuit court of
appeals, United States ex rel. (Manahan v. Parker, 390 F2d 360 (3d Cir. 1968).
12 Chief Justice Warren and Justices Brennan, Marshall, and Black joined Justice Douglas in the 5-to-3 decision.
13 395 U.S. at 274.
14 395 U.S.. at 273-74.

15 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
16 McElroy v. United States ex re/. Guagliardo, 361 U.S. 281 (1960); Reid v. Covert, 354 U.S. 1 (1957).
12 361 U.S. 281; Grisham v. Hagan, 361 U.S. 278 (1960).

18 395 U.S. at 272-73.
18 401 U.S. 355 (1971).

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(a) The essential and obvious interest of the military in the security of persons and of property on the military
enclave.
(b)
The responsibility of the military commander for maintenance of order in the command and the authority to
maintain that order.

(c)
The impact and adverse effect that a crime committed against a person or property on a military base, thus
violating the base's very security, has upon morale, discipline, reputation and integrity of the base itself, upon its
personnel and upon the military operation and the military mission.

(d)
The conviction that article I, section 8, clause 14 of the Constitution, vesting in the Congress the power "To
make Rules for the Government and Regulation of the land and naval Forces," means, in appropriate areas beyond the
purely military offense, more than the mere power to arrest soldier-offenders and turn them over to the civil authorities.
The term"Regulation" itself implies, for those appropriate cases, the power to try and to punish.

(e)
The distinct possibility that civil courts, particularly non-Federal courts, will have less than complete interest,
concern, and capacity for all the cases that vindicate the military's disciplinary authority within its own community.

(f)
The very positive implication in O'Callahan itself, arising from its emphasis on the absence of service-connected
elements there, that the presence of factors such as geographical and military relationships have important contrary
significance.

(g)
The recognition in O'Callahan that, historically, a crime against the person of one associated with the post was
subject even to the General Article.

(h)
The misreading and undue restriction of O'Callahan if it were interpreted as confining the court-martial to the purely military offenses that have no counterpart in nonmilitary criminal law.

(i)
A court's inability appropriately and meaningfully to draw any line between a post's strictly military areas and its

nonmilitary areas, or between a soldier-defendant's on-duty and off-duty activities and hours on the post. 2° These 21 factors provided the basic outline for subject-matter jurisdiction for almost 20 years.
(3) Schlesinger v. Councilman. The third in a trilogy of jurisdiction cases decided by the Supreme Court was Schlesinger v. Councilman. In Councilman,21 the Supreme Court was asked to determine whether the off-post possession, sale, and transfer of marijuana were service-connected offenses, and thus triable by a military court under the O'Callahan rationale. The accused had argued at a preliminary military hearing that the military court lacked subject-matter jurisdiction because the offenses were not service connected. His argument was rejected, his motion to dismiss denied, and his case set for trial. Thereafter he brought his objection before a Federal district court and obtained a permanent injunction of the military proceedings.
Because of these particular facts, the Supreme Court was able to avoid the substantive O'Callahan issue by raising the issue of equitable jurisdiction and basing its decision on the impropriety of allowing a Federal court to intervene in military proceedings. It reasoned that the exhaustion requirement in habeas corpus and the Federal equity rule barring intervention in pending State criminal and administrative proceedings applied to court-martial proceedings, and further noted that Congress, by creating military courts and systems of review, had already balanced military necessities against fairness to individual soldiers. The "congressional judgment must be respected ... it must be assumed that the military court system will vindicate servicemen's constitutional rights ... [and] when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention by way of injunction or otherwise." 22 The Supreme Court here not only refrained from addressing the O'Callahan issue, but it also failed to define "those circumstances, if any, in which equitable intervention into pending court-martial proceedings might be justified." 23 Although the Court effec­tively prevented a flood of litigation by soldiers seeking Federal injunctions against court-martial proceedings, it gave little real guidance to the resolution of O'Callahan issues. 24 In fact, the impact of Schlesinger v. Councilman is largely one of emphasis. The Court appears to give some extra weight to those factors which favor the exercise of court­martial jurisdiction over any offenses which may adversely impact "military discipline and effectiveness." 25
b. "Service connection" and military appellate courts. The evolution of the service connection doctrine was mirrored in military appellate courts. 26 In fact, in two Court of Military Appeals decisions, United States v. Lo­ckwood,27 and United States v. Solorio, 28 that court freely recognized that the service connection doctrine was not
20 Id. at 365.
21 420 U.S. 738 (1975).
22 Id. at 758.
23 Id. at 761.

24
See Bartiey,Military Law in the 1970's: The Effect of Schlesinger v. Councilman, 17 A.F.L. Rev. 65, 71 (Winter 1975).25 420 U.S. 738, 759.
26 See Tomes, The Imagination of the Prosecutor: The Only Limitation to Off-Post Jurisdiction Now, Fifteen Years After O'Calfahan v. Parker, 25 A.F.L.
Rev. 1 (1985).
27 15 M.J. 1 (C.M.A. 1983).
28 21 M.J. 251 (C.M.A. 1986).

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static but as Chief Judge Everett stated, "should be reexamined periodically" so that its limiting purpose remains responsive to military discipline. 29 Later, in Solorio, the Chief Judge went on to explain that while service connection was still the key, O'Callahan permitted us to consider later developments in the military and society at large and take into account any new information that might bear on service connection 3 0 Consequently, the military justice system experienced an expanding scope of service connection as the system moved to rectify disciplinary problems. The culmination of this movement was the Court of Military Appeals decision in United States v. Solorio. 3I Solorio's appeal, however, did not stop at the Court of Military Appeals, but was granted certiorari by the Supreme Court. On 25 June 1987, in Solorio v. United States,32 a landmark decision by the Supreme Court, that Court rejected the "service­connection" doctrine and expressly overruled O'Callahan, making the trilogy of O'Callahan, Relford, and Schlesinger of historical value only.
11 -3. Solorio v. United States —military status is the key
While Yeoman First Class Richard Solorio was on active duty in the Seventeenth Coast Guard District in Juneau, Alaska, he sexually abused two young daughters of fellow Coast Guardsmen. He continued to engage in this abuse over a 2-year period until he was transferred by the Coast Guard to Governors Island, New York. Coast Guard authorities learned of the Alaska crimes only after Solorio's transfer, and investigation revealed that he had later committed similar sexual abuse offenses while stationed in New York. The Governors Island commander convened a general court-martial to try Solorio for crimes alleged to have occurred in Alaska and New York. 33
There is no "base" or "post" where Coast Guard personnel live and work in Juneau. Consequently, nearly all Coast Guard military personnel reside in the civilian community. Solorio's Alaska offenses were committed in his privately­owned home and the fathers of the 10-to-12-year-old victims in Alaska were active duty members of the Coast Guard assigned to the same command as Solorio. The New York offenses also involved daughters of fellow Coast Guardsmen, but were committed in Government quarters on the Governors Island base.
Solorio moved to dismiss the offenses committed in Alaska on the ground that the court lacked jurisdiction under O'Callahan v. Parker and Relford v. Commandant. The military judge agreed and dismissed the Alaskan offenses for a lack of subject-matter jurisdiction.
The prosecution appealed the military judge's ruling pursuant to article 62, UCMJ, and the Coast Guard Court of Military Review reversed that ruling. 34 In turn, Solorio petitioned the Court of Military Appeals for review which was granted. The United States Court of Military Appeals, however, affirmed the Court of Military Review's decision concluding that the Alaskan offenses were "service connected." 35
Solorio next petitioned the Supreme Court for review pursuant to a writ of certiorari. That Court granted certiorari and, in a clear break from O'Callahan, affirmed.
a. The majority opinion. Chief Justice Rehnquist delivered the opinion of the Court, writing for a majority that included Justices White, Scalia, O'Connor, and Powell. In an abundantly clear fashion, the Court declared "[t]he jurisdiction of a court-martial depends solely on the accused's status as a member of the armed forces and not on the service connection of the offense charged. Thus, O'Callahan v. Parker is overruled." 36
The Court looked first at the constitutional underpinnings of the Congress' power to regulate the Armed Forces, and noted that the power granted to Congress in article 1, section 8, clause 14 to make rules for the government of the land and naval forces appeared in the same sections as the powers to regulate commerce, coin money, and declare war. And there was no indication that the grant of power in clause 14 was any less plenary than the other grants of power to Congress. 37 Thus, in the majority's opinion, the plain meaning of clause 14 supported a military status test as the sole determinant of jurisdiction. 38 Moreover, the Court noted that this rule was in agreement with an unbroken line of precedent from 1866 to 1960 that viewed the Constitution as conditioning the proper exercise of court-martial jurisdiction on one factor: the military status of the accused. 39 The Court went on to explain that the O'Callahan court's rendition of the history of courts- martial was less than accurate, noting that the history of court-martial jurisdiction in England and in this country during the 17th and 18th centuries was far too ambiguous to justify the restriction on the plain language of clause 14 which O'Callahan imported into it 4 0
The Court further noted that civil courts are ill- equipped to establish policies regarding matters of military concern,
29 15 M.J. at 10.
3° 21 M.J. at 254.
31 21 M.J. 251.
32 483 U.S. 435 (1987).
33 Id. at 437.
34 21 M.J. 512 (C.G.C.M.R. 1985).
35 21 M.J. 251 (C.M.A. 1986).
36 483 U.S. at 435.
37 Id. at 4.41.
38 Id.
32 Id. at 439.
4° Id. at 445.

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recalling that just 2 years after O'Callahan, the Supreme Court felt it was necessary to expand on service connection in Relford, enumerating myriad factors to weigh in service connection. The Court went on to say that the O'Callahan v. Parker service connection test was confusing and caused an unwarranted expenditure of time and energy in litigating jurisdictional issues:41
The Court illustrated the confusion caused by O'Callahan by pointing to the military's own experience with drug offenses. Soon after O'Callahan in 1969, the Court of Military Appeals, in United States v. Beeker 42 held that all drug offenses were service connected and then changed its position at least twice in later cases, the last time in United States
v. Trottier.43
The Supreme Court thus held that Congress has primary responsibility for balancing the rights of soldiers against the needs of the military and that Congress' implementation of that responsibility is entitled to judicial deference.
b. The dissent. Justice Marshall, joined by Justices Brennan and Blackmun, authored perhaps one of the strongest dissents in the entire history of the Supreme Court. The tone of dissent was established by the very first paragraph in which Justice Marshall proclaimed in overruling O'Callahan v. Parker, the"court disregards constitutional language and the principles of stare decisis in its single-minded determination to subject members of our armed forces to the unrestrained control of the military in the area of criminal justice?" 44 The constitutional language he was referring to was the Bill of Rights, specifically, the fifth amendment right to grand jury indictment and the sixth amendment right to a trial by jury, which oaly except "cases arising in the land and naval faces" from their protections. Justice Marshall went on to explain that because Solorio's case did not arise in the land or naval forces, the military had no jurisdiction to try him.
Thus, Justice Marshall believed that O'Callahan v. Parker was constitutionally based on the Bill of Rights and that Justice Douglas' historical analysis was correct. He ended his dissent in a sentence that even Justices Brennan and Blackmun would not join, writing:"The Court's action today reflects contempt, both for the members of our Armed Forces and for the constitutional safeguards intended to protect us all." 45
c. Unresolved issues. Despite the clarity of the holding in Solorio, some issues remain. First, can Solorio be applied retroactively? Second, what will congressional reaction be? Third, what is the future of the military's relationship with local civilian district attorneys and prosecutors?
(1) Retroactivity of Solorio. The issue of retroactivity was not addressed in the Solorio opinion, except by way of Solorio's argument that the Court of Military Appeals decision should be reversed because it applied a more expansive subject-matter jurisdiction test than had previously been announced." The Supreme Court, however, refused to hear the issue because Solorio failed to raise this claim at the Court of Military Appeals and provided no explanation for his failure to do so. 47
The Court of Military Appeals, in its first post- Solorio jurisdiction opinion, also failed to address the retroactivity issue. In United States v. Overton," the court applied the O'Callahan service connection test to determine jurisdiction, but then, in a footnote, indicated "that the same result would be reached if ... Solorio v. United States ... is retroactive."49 Later, in United States v. Huitt, 50 that court again indicated that it would continue to apply the service connection test until the retroactivity issue was properly framed before them.
The retroactivity issue was finally directly addressed in United States v. Avila. 51 In Avila, the Court of Military Appeals held that Solorio is completely retroactive. 52 In fact, the court held that it appeared that they had no option under existing Supreme Court precedent of Griffith v. Kentucky 53 but to hold Solorio retroactive.
The courts of military review have also held that Solorio is retroactive. In United States v. Starks, 54 the Army Court of Military Review, also citing the Supreme Court's decision in Griffith v. Kentucky, 55 found Solorio to be fully retroactive.
In Starks, the accused was tried by a general court-martial sitting at Fort Polk, Louisiana on 16 December 1986. At the time of the Solorio decision, Starks' case was on direct appeal to the Army Court of Military Review. Starks argued on appeal that the military lacked jurisdiction over several off-post offenses. The Army court disagreed.
41 Id. at 449.
42 40 C.M.R. 275 (C.M.A. 1969).
43 9 M.J. 337 (C.M.A. 1980). .
44 483 U.S. at 452.
45 Id. at 467.
46 Id. at 451, n.18.
47 Id.
45 24 M.J. 309 (C.M.A. 1987).

49 Id.
50 25 M.J. 136 (C.M.A. 1987). This issue was addressed in oral argument at the Court of Military Appeals in United States v. Avila, Dkt. No.
57,512AF,pet. granted (C.M.A. 1988).
51 27 M.J. 62 (C.M.A. 1988).
52 Id.

53 479 U.S. 314 (1987).
54 24 M.J. 857, 1859 (A.C.M.R. 1987); accord United States v. Ghiglieri, 25 M.J. 687, (A.C.M.R. 1987).
55 479 U.S. 314 (1987).

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Addressing the retroactivity issue, the court noted that as a general rule, rules for criminal prosecutions will be fully retroactive with no exception for cases that constitute a clear break with the past and, moreover, there was no ex post facto application of the law in this case. 56 Thus, the service connection analysis is no longer needed. 57 Similarly, the Air Force and Navy Courts of Military Review have found Solorio to be retroactive in unpublished decisions. 58
Department of Army policy in applying Solorio has been provided in a letter from The Judge Advocate Genera1. 59 In general, Army policy provides that Solorio will be applied in all cases currently being tried or going through the appellate process. Cases, however, where the jurisdiction issue was raised and lost under O'Callahan, will not be revived as a matter of policy. Finally, the letter advises that Alef 60 factors need no longer be pleaded to establish jurisdiction.
(2)
Congressional reaction. The Solorio decision gives control of military jurisdiction to Congress, specifically noting "[J]udicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules for their governance is challenged." 61 Congress has not reacted to this deferral of power. Moreover, in recent history the Congress has statutorily broadened the scope of military jurisdiction, most importantly, providing the doctrine of constructive enlistment in article 2, UCMJ 62 and most recently, providing expanded jurisdiction powers over members of the Reserve Components. 63 This trend, however, is subject to reversal if the expanded jurisdiction provided by Solorio is subjected to abuse. 64

(3)
Relationships with civilian prosecutors. Solorio's expanded jurisdiction provides the military with the authority to handle many crimes traditionally tried by civilian courts. Coordination with civilian law enforcement agencies is therefore mandated. 65

Double jeopardy does not bar the prosecution of a soldier, tried previously in a state court, in a trial by court­martia1. 66 Army regulations, however, establish guidelines. AR 27-10 provides: "A person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not be tried by court-martial or punished under Article 15, UCMJ, for the same act over which the civilian court has exercised jurisdiction." 67 That regulation further requires that the general court-martial convening authority personally determine that further punitive action is necessary. 68 Navy and Air Force regulations are in accord 6 9 Moreover, the Air Force Court of Military Review, in United States v. Olsen, 7° barred a second prosecution of an Air Force member for drug offenses that had been the subject of a previous state court conviction, where Air Force regulations were not followed. Thus, dual prosecutions, while permitted, are clearly not favored.
11-4. Conclusion
Solorio creates a new age of military practice. Its future definition in large part depends on the perceived equities or inequities of the military justice system by the civilian population. If the status test of jurisdiction is abused, or more importantly perceived to be abused, the subject-matter jurisdiction of the court-martial will again be limited, not by the courts, but by the Congress.
56 24 M.J. at 859.
57 24 M.J. at 858.
56 United States v. Taylor, A.C.M. 25834 (30 June 1987, A.F.C.M.R.); United States v. McNamara, No. 86-3714 (13 July 1987 N.M.C.M.R.).
59 Policy Memorandum 87-5, Office of The Judge Advocate General, U.S. Army, subject: Liaison with Civilian Officials After Solorio, 28 July 1987,repri­
nted in The Army Lawyer, Sept. 1987, at 3 [hereinafter TJAG Memorandum 87-5).
60 United States v. Alef, 3 M.J. 414 (C.M.A. 1977). In Alef, the Court of Military Appeals mandated that the Government affirmatively demonstrate through
sworn charges the jurisdictional basis for the trial of the accused and his offenses.
6' 483 U.S. at 447.
62 UCMJ art. 2.
63 See UCMJ art. 2(a)(3), 2(d), and 3(d).
64 See TJAG Policy Memorandum 87-5.
65 Id
66 Benton v. Maryland, 395 U.S. 784 (1969).
67 AR 27-10, para. 4-2.
66 /fiat para. 4-3.
69 Air Force Regulation 111-1, Military Justice Guide, para. 3-7b (30 Sept. 1988); Navy JAGINST 5800.78, para. 0116d.
70 24 M.J. 669 (A.F.C.M.R. 1987).
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Part Three Pretrial Procedure
Chapter 12 Charges and Specifications
12-1. General
Charging or pleading is the essential first step in the court-martial process. Any person subject to the UCMJ may prefer charges,' but trial counsel should always draft or review charges before they are preferred. The drafter prepares the pleading by completing a DD Form 458 (Charge Sheet). The formal written accusation consists of the technical charge and the specification. 2
12-2. The charge
The charge is a statement of the article of the UCMJ violated, and ordinarily will be written: "Violation of the Uniform Code of Military Justice, Article ." Neither the misdesignation of an article nor the failure to designate any article is ordinarily material so long as the specification alleges an offense over which cjurts-martial have jurisdiction. 3
12-3. The specification
The specification is a plain, concise, and definite statement of the essential facts constituting the offense charged. 4 No particular format is required, 5 but counsel and legal specialists should always follow the form specifications in the Manual. Drafting creative and novel specifications, particularly when a sufficient form specification already exists, often results in needless appellate litigation and may result in prejudicial error.
12-4. Additional charges
New and separate charges preferred after others have been preferred are called additional charges. Additional charges may not be incorporated after arraignment at the same trial without the consent of the accused. 6
12-5. Legal sufficiency of pleadings
Every essential element of the offense sought to be charged must be alleged directly or by fair implication in the specification.? Specifications alleging a violation of the third clause of article 134, UCMJ, for example, must set forth the essential elements of the underlying statutes. 8 If a specification fails to allege an offense, a motion to dismiss should be granted as to the specification. 9 The burden is on the Government to show the legal sufficiency of the specification, 16 and the failure to do so may be attacked on appeal notwithstanding a guilty plea."
A specification should allege every essential element of the offense charged, 12 demonstrate the criminal nature of the conduct, 13 and give sufficient notice to the accused to prepare a defense and protect the accused from re-prosecution for the same offense. 14 An incomplete specification may be sufficient where an offense is necessarily implied," but it
1 R.C.M. 307(a). No person may be ordered to prefer charges to which that person is unable to make truthfully the required oath, however. R.C.M. 307(a)
discussion.

2 R.C.M. 307(c)(1). This is also called a pleading.
3 R.C.M. 307(c)(2);see United States v. Bluitt, 50 C.M.R. 675 (A.C.M.R. 1975). Particular subdivisions of the article violated should not be included. If
there is only one charge it is not numbered. When there is more than one charge, each is numbered with a Roman numeral. R.C.M. 307(c)(2) discussion.

R.C.M. 307(c)(3).
5 Id. If there is only one specification it is not numbered. When there is more than one specification, they are numbered with Arabic numerals. R.C.M.
307(c)(3) discussion. MCM, 1984, Part IV contains sample specifications for most offenses under the Code.
6 R.C.M. 601(e)(2). If there is more than one additional charge number them with Roman numerals, such as 'Additional Charge I." The term "additional" is

not added to specifications under an additional charge. R.C.M. 307(c)(2) and (3) discussion.
7 R.C.M. 307(c)(3); United States v. Watkins, 21 M.J. 208 (C.M.A. 1986); United . States v. Fout, 13 C.M.R. 121, 124 (C.M.A. 1953); see also, United
States v. Flieg, 37 C.M.R. 64 (C.M.A. 1966); United States v. Jefferson, 14 M.J. 806 (A.F.C.M.R. 1982).
8 United States v. Mayo, 12 M.J. 286 (C.M.A. 1982); United States v. Johnson, 48 C.M.R. 282 (A.C.M.R. 1974).
9 R.C.M. 907(b)(1)(B). Specifications that allege some violation of the UCMJ are not subject to a motion to dismiss. See R.C.M. 307(d).
10 United States v. Buswell, 45 C.M.R. 742 (A.C.M.R. 1972); United States v. Jefferson, 14 M.J. 806 (A.F.C.M.R. 1982).
1 ' United States v. Morgan, 44 C.M.R. 898 (A.C.M.R. 1971). The Court of Military Appeals, however, has stated that a flawed specification, attacked first

on appeal, will be viewed with greater tolerance. In United States v. Watkins, 21 M.J. 208 (C.M.A. 1986), the court did not reverse for a failure to

allege without authority' in an AWOL guilty plea case.
12 R.C.M. 307(c)(3) and discussion (G)(i) (either expressly or by necessary implication); United States v. Yum, 10 M.J. 1 (C.M.A. 1980); United States v.
Adams, 14 M.J. 647 (A.C.M.R. 1982).

13 R.C.M. 307(c)(3) discussion (G)(ii); United States v. Jones, 42 C.M.R. 282 (C.M.A. 1970) (no averment of wrongfulness or unlawfulness in assault
specification); United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967) ("wrongfulness" omitted in attempted drug sale specification); United States v. Garcia,
18 M.J. 539 (A.C.M.R. 1984) (wrongfulness* omitted in drug possession specification, fatally defective). But see United States v. Brecheen, 27 M.J. 67

(C.M.A. 1988) (Nvrongfur omitted from conspiracy to distribute in guilty plea case; Brice distinguished); United States v. Watkins, 21 M.J. 208 (C.M.A.
1986) ("without authority" omitted in AWOL guilty plea, not reversed); United States v. Bryant, 28 M.J. 504 (A.C.M.R. 1989) ("wrongfur omitted from
conspiracy to distribute in contested case; implied by separate distribution specification). United States v. LeProwse, 26 M.J. 652 (A.C.M.R. 1988) ('with

intent to arouse sexual desire ... ' omitted; court found alleged by fair implication).
14 R.C.M. 307(c)(3) discussion (G)(iii); United States v. Curtiss, 42 C.M.R. 4 (C.M.A. 1970); United States v. Weems, 13 M.J. 609 (A.F.C.M.R. 1982). See

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must demonstrate the criminal nature of the accused's conduct either directly or by fair implication.I 6 The specification should negate every reasonable hypothesis of innocence." Thus, specifications alleging violations under article 92, UCMJ, must be premised upon the fact that the regulation itself is punitive in nature; that is, it is intended to regulate conduct of individual soldiers with a self-evident, direct application of sanctions for its violation. 18
The accused must be able to prepare his or her defense. If the specification is ambiguous, it may not be sufficient to apprise the accused of what he or she must defend against at tria1. 19 An ambiguous specification may fail because it does not sufficiently identify the nature of the res in a wrongful appropriation allegation; 20 however, information in an article 32 report of investigation 2 I or brought out in a providence inquiry 22 may remedy an otherwise deficient specification.
In addition to informing the accused of the offense, a specification should preclude a second prosecution for the same offense.23 The UCMJ provides protection against trial, without consent, for the same offense a second time. 24 Therefore, a properly pleaded specification resulting in an acquittal or conviction, together with the record of trial, should identify the offense so as to preclude the accused being placed in jeopardy twice for the same offense.
Ordinarily, use of the model specifications provided in the Manual for Courts-Martial 25 furnishes sufficient pleading, and conformity with the suggested forms is encouraged. 26 Nevertheless, the forms are not a guarantee of legal sufficiency in every case, 27 nor is a failure to follow them necessarily fatal to pleaciings. 28 Therefore, specifications should be drafted with care to allege all the elements, the criminality of the conduct, and inform the accused of-the nature of the offense and preclude a second prosecution for the same offense.
12-6. Multiplicity
Multiplicity is where a single offense is charged in more than one specification. What is substantially one_ transaction should not be made the basis for an unreasonable multiplication of charges. 29 A specification is multiplicious with another if it alleges the same offense, or if one offense is a lesser included offense of the other. 30
a. Multiplicity before findings. The general prohibition against multiplicious pleading is subject to the exception where sufficient doubt exists as to the facts or law: If multiplicious specifications are necessary for the Government to meet exigencies of proof through trial, review, and appellate action, then they should not be dismissed before findings. 3 I Put another way, multiplicious pleading to meet exigencies of proof is not an "unreasonable" multiplication
R.C.M. 307(c)(3) discussion for more detailed guidance in drafting specifications.
18 United States v. Brecheen, 27 M.J. 67; United States v. McCollum 13 M.J. 127 (C.M.A. 1982) (value fairly implied); United States v. Bryant, 28 M.J.

504; United States v, LeProwse, 26 M.J. 652 (A.C.M.R. 1988); United States v. Brown, 42 C.M.R. 656 (A.C.M.R. 1970) ("club" considered a building or
structure for purposes of housebreaking, by fair implication).
18 United States v. Brice, 38 C.M.R. 134 (fatal to omit "wrongfulness" in attempted drug sale specification). But see 27 M.J. 67; 28 M.J. 504; 26 M.J. 652.
17 United States v. Jones, 42 C.M.R. 282 (C.M.A. 1970) (failure to allege assault wrongful or unlawful); United States v. Richardson, 22 C.M.R. 473

(A.B.R. 1956) (omission of legal efficacy' in forgery specification).
18 United States v. Scott, 46 C.M.R. 25 (C.M.A. 1972) (paragraph of regulation held nonpunitive); United , States v. Stewart. 2 M.J. 423 (A.C.M.R. 1975)

(weapons regulation held nonpunitive); United States v. Edell, 49 C.M.R. 65 (A.C.M.R. 1974); United States v. Wright, 48 C.M.R. 319 (A.C.M.R. 1974).
18 United States v. Bolden, 40 C.M.R. 758 (A.C.M.R. 1969).
20 United States v. Curtiss, 42 C.M.R. 4 (1970) (specification only alleged accused wrongfully appropriated "personal property' held insufficient).But see

United States v. Durham, 21 M.J. 232 (C.M.A. 1986) (specification alleging theft of "items" was upheld where items were described in the record,
providing adequate notice to the accused and double jeopardy protection).
21 United States v. Suggs, 43 C.M.R. 36 (C.M.A. 1970).
22 Watkins; United States v. Krebs, 43 C.M.R. 327 (C.M.A. 1971) (affirming larceny of "goods"); see also United States v. Swann, 44 C.M.R. 871

(A.C.M.R.
1971) affirming a conspiracy specification alleging unknown conspirators.
23 United States v. Durham, 21 M.J. 232 (C.M.A. 1986); United States v. Sell, 11 C.M.R. 202 (C.M.A. 1953); United States v. Freeman, 23 M.J. 531

(A.C.M.R.
1986); United States v. Smith, 40 C.M.R. 432 (A.B.R. 1968).

24 UCMJ art. 44.
25

MCM, 1984, Part IV. 26 United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969). 27 United States v. McCollum, 13 M.J. 12 (C.M.A. 1982) (merely adopting form specification does not guarantee a legally sufficient pleading); United
States v. Brice, 48 C.M.R. 368 (N.C.M.R. 1973) (sample specification in 1969 MCM did not adequately allege riot).
28 United States v. Quarles, 50 C.M.R. 514 (N.C.M.R. 1975) (duty to obey order necessarily implied).
29 R.C.M. 307(c)(4) discussion.

30
R.C.M. 907(b)(3)(8) discussion
31 Id.
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of charges. Lesser included offenses should never be separately charged. 32 This is because even where exigencies of proof exist, the court still has before it the charged offense and all lesser included offenses in issue. 33
b. Multiplicity after findings. The exigencies of proof are most pronounced at the trial level. The exigencies of proof ordinarily dissipate once all the evidence is received and findings are made. As the courts of military review have fact­finding power, some exigencies may extend beyond the findings.
Given this uncertainty, the Manual concedes that it may be appropriate after findings to dismiss the less serious of any multiplicious specifications; consideration must nonetheless be given to possible post-trial or appellate action with regard to the remaining specification. 34 The Court of Appeals has hinted that a specification dismissed at trial as multiplicious might be retrievable later if the remaining specification were set aside on appeal. 35 If the military judge does not find dismissal of any specifications appropriate after findings, the general rule is that the maximum authorized punishment may be imposed for each separate offense. 36 The Manual then defines "separate" as those offenses that each require proof of at least one element not required to prove the other. 37 This is called the separate elements test.
Several exceptions to the separate elements test are recognized. Conspiracies 38 and cover-ups39 are separately punishable from the underlying offense even though they may not strictly meet the separate elements test. Other crimes that do meet the separate elements test may not be separately punishable, depending upon all the circumstances, if they were committed as the result of a single impulse or intent, or were part of a continuous chain of events that share a unity of time 40 In sum, "[a] single template by which to determine in all instances whether particular misconduct is punishable as a single offense or as separate and different offenses has not been successfully designed." 4 I
The current case approach to multiplicity for findings first examines whether the offenses are part of the same act or transaction. If not, the offenses are separate. 42 Of course, congressional intent is critical because the double jeopardy clause of the fifth amendment only prohibits courts from prescribing greater punishment than Congress intended. If congressional intent is expressed, implied, or can be determined from a reasoned analysis of the statute or from authoritative interpretations of military law, then such intent is determinative. Generally, congressional intent is not clear and rules of construction are applied to determine such intent. The Blockburger separate elements test has been applied to determine separateness. 43 If the Blockburger test is met, the Baker case sets out four situations where offenses are nonetheless considered multiplicious, absent contrary statutory intent: (1) where offenses require inconsis­tent findings of fact; (2) where the offenses are part of an indivisible crime as a matter of law; (3) where both offenses are different aspects of a continuous course of conduct prohibited by one statutory provision; and (4) where offenses stand in the relation of greater and lesser offenses. Finally, consideration should also be given to whether there are any "aggravating circumstances" which will avoid a finding of multiplicity."
When considering multiplicity for sentencing, legislative intent again governs. When such intent is not clear, the separate elements test of Blockburger and R.C.M. 1003 is applied. The courts have applied several tests to determine multiplicity for sentencing. 45 These tests include: (1) the single impulse test; (2) the unity of time, existence of
32 R.C.M. 307(c)(4) discussion. The Court of Military Appeals has expanded the concept of lesser included offenses in recent years. When both offenses arise out of one act or transaction, the wording of the specifications must be examined to determine if one is lesser included within the other. The court has stated that two specifications stand in a relationship of greater and lesser included in two situations:
First, where one offense contains only elements of, but not all the elements of the other offense; second, where one offense contains different
elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and
established by the evidence at trial.
United States v. Baker, 14 M.J. 361, 368 (C.M.A. 1983).
A further extension of this "fairly embraceirconcept was adopted by the court in United States v. Holliman, 16 M.J. 164, 167 (C.M.A. 1983) where the court would find a lesser included offense if it were "fairly embraced as an integral means of accomplishing the greater offense. In Holliman, a threat specification was held to be multiplicious for findings with a rape specification where the evidence showed the threat was an integral means of accomplishing the rape. These innovative definitions trom the court have contributed to what has been referred to as a morass, a Sargasso Sea, and a quagmire. The 1984 Manual purported to solve this problem of uncertainty by reverting to a form of the Supreme Court's simple and effective "separate elements' test announced in Blockburger v. United States, 284 U.S. 299 (1932). R.C.M. 1003 (c)(1)(c) discussion. 33 R.C.M. 920(e)(2).
34 R.C.M. 307(c)(4) discussion.
33 United States v. Doss, 15 M.J. 409, 413 (C.M.A. 1983).
36 R.C.M. 1003(c)(1)(C).
27 Id. See also Blockburger v. United States, 284 U.S. 299, (1932).

R.C.M. 1003 (c)(1)(c) discussion; United States v. Washington, 1 M.J. 473 (C.M.A. 1976). 38 United States v. Harrison, 4 M.J. 332 (C.M.A. 1978); United States v. Meyer, 45 C.M.R. 84, 85 (C.M.A. 1972). 4° United States v. Weaver, 42 C.M.R. 250 (C.M.A. 1970); United States v. Kleinhans, 34 C.M.R. 276 (C.M.A. 1964) (unlawfully opening mail matter and
larceny of money therefrom held multiplicious for sentencing where both were generated by a single impulse).
41 United States v. Meyer, 45 C.M.R. 84, 85 (C.M.A. 1972); see also United States v. Meace, 20 M.J. 972 (N.M.C.M.R. 1985) (the perfect analysis for

multiplicity is no more possible than the search for perfect smoke); United States v. Baker, 14 M.J. 361 (C.M.A. 1983).
42 United States v. Wells, 20 M.J. 513 (A.F.C.M.R. 1985).
43 United States v. Timberlake, 18 M.J. 371 (C.M.A. 1984) (if same conduct violates article 133 and another punitive article, the violation of the other

punitive article is a lesser included offense of the article 133 offense); United States v. Zubko, 18 M.J. 378 (C.M.A. 1984) (simple possession is a lesser

included offense of distribution of the same drug at the same time).
" United States v. DiBello, 17 M.J. 77 (C.M.A. 1983) (AWOL of 16 days and breach of restriction held not multiplicious due to the aggravating
circumstance of the duration of the AWOL).

45 See United States v. Chisolm, 10 M.J. 795 (A.F.C.M.R. 1981).
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connected chain of events test; (3) the separate societal norms test; and (4) the separate duties test. 46
12-7. Duplicity
One specification should not allege more than one offense; a specification containing more than one offense is duplicitous.47 Further, one specification should not allege more than one offense conjunctively or in the alternative 4 8 A specification is not necessarily duplicitous when it alleges an offense containing lesser included offenses. 49 Also, if two acts constitute a single offenses° or if an offense is committed by more than one means, they may be alleged conjunctively. Another exception to the general prohibition against duplicitous pleading exists when several separate acts are part of a continuing course of conducts'
If a specification is duplicitous, a motion to sever may be appropriate. 52 Of course, should the motion be granted, a separate punishment would be authorized for each offense." In some cases, severing will reduce the total maximum authorized punishment." When severing increases the punishment, the defense may not wish to raise the motion. Failure to object to the duplicitous specification results in waiver of the issue." Duplicity alone is not a ground for reversing a conviction of that specification; it is only fatal when it materially prejudices the substantial rights of an accused."
12-8. Joinder
Ordinarily, all known charges should be tried at a single court-martial. 57 The convening authority has discretion to refer separate and unrelated offenses to a single trial." A significant change from the 1969 Manual is the provision that major offenses and minor offenses may be tried together at a single court-martial.s 9
The charges should be disposed of in a timely manner at the lowest appropriate level of disposition." The saving up or accumulation of charges for an improper motive is prohibited. 61
12-9. Joint offenses
A joint offense is one committed by two or more persons acting together in pursuance of a common intent. 62 Joint offenders may be charged separately or jointly;" however, members of different armed forces should ordinarily be charged separately." If the participants are charged and tried jointly, it should be alleged that the named accused committed the offense "jointly and in pursuance of a common intent."'" If the participants are charged separately, it should be alleged that the named accused committed the offense "in conjunction with" the joint offender." A joint trial is subject to an appropriate motion to sever. 67
12-10. Drafting problems
a. Pleading jurisdiction. The specification must allege the basis for jurisdiction over the accused." Including the accused's rank or grade, armed force, and unit or organization is ordinarily sufficient to show jurisdiction over the
46 For a detailed treatment of one approach to multiplicity, see Uberman, Multiplicity Under the New Manual for Courts -Martial. The Army Lawyer, June
1985, at 31, and United States v. Ridgeway, 19 M.J. 681 (A.F.C.M.R. 1984).

47 R.C.M. 307(c)(4);see United States v. Paulk, 32 C.M.R. 456 (C.M.A. 1963).
48 R.C.M. 307(c)(3) discussion (G)(iv); United States v. Cook, 44 C.M.R. 788 (N.C.M.R. 1971); and United States v. Branford, 2 C.M.R. 489 (A.B.R. 1951)
(specification included drunken driving and reckless driving).

49 United States v. Parker, 13 C.M.R. 97 (C.M.A. 1953).
50 R.C.M. 906(b)(5); United States v. Bull, 14 C.M.R. 53 (1954) (three acts of negligence in vehicular negligent homicide specification).
51 R.C.M. 307(c)(3) discussion (G)(iv); United States v. Jones, 15 C.M.R. 664 (A.B.R. 1954) (sodomy at divers times and places alleged in one

specification).
62 R.C.M. 906(b)(5) discussion.
63 Id.

64 United States v. Davis, 36 C.M.R. 363 (C.M.A. 1966) (larcenies not permitted to be aggregated to increase maximum punishment); see also United
States v. Poole, 24 M.J. 539 (A.C.M.R. 1987) (mega-specs for bad check offenses).
66 United States v. Parker, 3 C.M.A. 541, 13 C.M.R. 97 (1953); Poole, 24 M.J. 539; United States v. Wakeman, 25 M.J. 644 (A.C.M.R. 1987).
ss R.C.M. 906(b)(5) discussion, United States v. Branford, 2 C.M.R. 489 (A.B.R. 1951).

67 R.C.M. 307(c)(4); R.C.M. 601(e)(2); R.C.M. 906(b)(10) discussion.
68 R.C.M. 601(e)(2). This is contrary to Federal Rule of Criminal Procedure 8(a) which ordinarily allows an accused to receive separate trials for unrelated
offenses.

ss R.C.M. 601(e)(2).
60 R.C.M. 306(b).

61

R.C.M. 307(a) discussion. A convening authority may withhold charges for proper reasons, such as additional charges. United States v. Delano, 12
M.J. 948 (N.M.C.M.R. 1982). At some point, however, the accused's right to a speedy trial takes precedence over this delay to add charges. United
States v. Ward, 50 C.M.R. 273 (C.M.A. 1975).
62 R.C.M. 601(e)(3) discussion.

63 R.C.M. 601(e)(3).
64 R.C.M. 201(e). 'Cases involving two or more accused who are members of different armed forces should not be referred to court-martial for a common
trial." Id. discussion.

66 R.C.M. 307(c)(3) discussion (H)(viii); see also United States v. Dollioie, 11 C.M.R. 101 (1953) (robbery).
" Id.
67 R.C.M. 906(b)(9) (to be liberally granted if good cause shown).. 66 United States v. Met 3 M.J. 414 (C.M.A. 1977).
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accused. 69 The drafter may wish to add the words` on active duty" after the description of the accused."
b.
Allegation of time or place of o ffense. Ordinarily, time and place should be pleaded with sufficient precision to give the accused notice. There are exceptions. 7I A larceny specification may be legally sufficient without an allegation of where the offense took place. 72 Similarly, when time is not of the essence, an erroneous statement of the date of the offense is a matter of form. 73 If time and place are of the essence, or when several similar offenses are involved, more specificity may be required. 74 A variance may also affect the maximum imposable sentence. 75

c.
Descriptions. Ordinarily, an erroneous description of the victim of an offense is not fatal," subject to the condition that a specification must not mislead an accused in preparing the defense and must adequately protect the accused against a second prosecution of the same offense.

d.
Statements concerning value. Exact value should be stated in the specification, if Icnown. 77 If a specification, without specifying value, describes property which any reasonable person would necessarily conclude had some value, it is legally sufficient.78 Of course, the consequence of failing to specify value is that the accused may only be convicted of the least degree of the offense. 79 If several different articles of various kinds are the subject of the offense, the value of each article should be stated, followed by a statement of the aggregate value."

e.
Allegation of course of conduct. If criminal acts extend over a considerable period of time, they may be alleged as having occurred during the period from.to .81 Such pleading does not render the specification defective on the ground of duplicity. 82

f Amendments. Amendments are major and minor changes to pleadings. Major changes are defined as any change which adds a party, offense, or substantial matter not fairly included in the specification, or is likely to mislead the accused as to the offense charged. 83 Major changes cannot be made over the accused's objection unless the charge is preferred anew. 84 Minor changes are defined as all other changes which are not major changes. 85 Minor changes may be made before arraignment by any person who forwards, acts upon, or prosecutes the case, except the article 32 investigating officer. 86 Minor changes after arraignment may be permitted by the military judge if no substantial right of the accused is prejudiced. 87
69 R.C.M. 307(c)(3) discussion (C)(ii).
R.C.M. 307(c)(3) discussion (C)(iv)(a). 71 R.C.M. 307(c)(3) discussion. 72 United States v. McKinney, 40 C.M.R. 1013 (A.F.B.R. 1969) (where accused not misled and protected from further prosecution). 73 United States v. Brown, 16 C.M.R. 257 (C.M.A. 1954). m United States v. Henry, 7 C.M.R. 680 (A.F.B.R. 1952); United States v. Little, 5 C.M.R. 382 (A.F.B.R. 1952). 78 United States v. Krutsinger, 35 C.M.R. 207 (C.M.A. 1965); United States v. Merritt, 18 M.J. 618 (A.F.C.M.R. 1984). Allegations and proof must correspond. Where there is a variance the issue has a dual standard: (1) has the accused been misled to the extent that he or she is unable to prepare
for trial, and (2) is the accused fully protected against another prosecution for the same offense. See United States v. Leslie, 9 M.J. 646 (N.C.M.R. 1980) (citing United States v. Lee, 1 M.J. 15 (C.M.A. 1975)) (where accused charged with possession of "hashish" but evidence showed the accused only possessed "marijuana," no fatal variance existed).
78 United States v. Craig, 24 C.M.R. 28 (C.M.A. 1957); United States v. Hopf, 5 C.M.R. 12 (C.M.A. 1952); United States v. Meadow, 14 M.J. 1002
(A.C.M.R. 1982); United States v. McGary, 9 C.M.R. 377 (A.B.R. 1953), petition denied, 10 C.M.R. 159 (C.M.A. 1957).
n R.C.M. 307(c)(3) discussion (H)(iv). . •
78 Id.; United States v. McCollum, 13 M.J. 127 (C.M.A. 1982) (where reasonable person would conclude articles could have some value, failure to aNege
specific value is not fatal); United States v. May, 14 C.M.R. 121 (C.M.A. 1954) (property of some value"alleged in wrongful appropriation specification).
79 United States v. McCollum, 13 M.J. 127 (C.M.A. 1982) (where reasonable person would conclude articles could have some value, failure to allege
specific value is not fatal); United States v. May, 14 C.M.R. 121 (C.M.A. 1954) (property of ''some value' alleged in wrongful appropriation specification).
80 R.C.M. 307(c)(3) discussion (H)(iv); see also United States v. Wakeman, 25 M.J. 644 (A.C.M.R. 1987).
81 R.C.M. 307(c)(3) discussion (D)(iv); United States v. Schuwacker, 7 C.M.R. 10 (C.M.A. 1953) (from on or about June 15 to on or about August 1);
United States v. DeJonge, 16 M.J. 974 (A.F.C.M.R. 1983) (rapes alleged at 'divers times").
82 United States v. Means, 30 C.M.R. 290 (C.M.A. 1961). However, the accused may be punished only once for each specification, regardless of how
many offenses are alleged over the period of time. See also United States v. Wakeman, 25 M.J. 644 (A.C.M.R. 1987); United States v. Poole, 24 M.J.

539 (A.C.M.R. 1987).
83 R.C.M. 603(e).
64 R.C.M. 6Q3(d).
85 R.C.M. 603(a).
86 R.C.M. 603(b). United States v. Brown, 21 M.J. 995 (A.C.M.R. 1986) (convening authority amended charge to lesser included offense; new preferral

not required). 87 R.C.M. 603(c).
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Chapter 13 Initiation and Disposition of Charges
13-1. Initiation of charges in general
Charges may be initiated after the report of an offense. Any person may report an offense.' Ordinarily, military authorities who receive a report, or who have knowledge of an offense, forward the report and any accompanying
information to the immediate commander of the suspect?
13-2. Disposition of charges in general
Charges can be disposed of at four levels within the military justice system: (1) by the unit level commander who
exercises immediate article 15 jurisdiction over the accused; 3 (2) by the summary court-martial convening authority; 4
5 and (4) by the general court-martial convening authority. 6 Each(3) by the special court-martial convening authority; commander or convening authority within the military justice chain has a range of available options and each commander exercises his or her own discretion in selecting one of the available options or making a recommendation to a higher level commander. As charges progress up the military justice chain, the convening authority has more options available. Any higher level convening authority has all the powers and alternatives of any lower level convening authority or commander. Thus, a summary court-martial convening authority has available all the options of the immediate unit commander and additional alternatives as a convening authority. Similarly, a special court-martial convening authority is empowered to convene a summary court-martial as well as a special court-martial.
13-3. Reporting an offense and initiating charges
A person initiates the military justice process by reporting an offense to law enforcement authorities or the immediate commander of the suspect. 7 Any person, civilian or military, may report an offense. Any person subject to the Uniform Code of Military Justice may prefer charges. 8 Thus, a military policeman having knowledge of an offense could prefer charges against an accused and forward the charges to the unit commander. Customarily, the military policeman instead makes a report to the unit commander, who becomes the formal accuser, that is, the person who swears out charges and signs the charge sheet. 9
13-4. Factors for consideration by commanders
Each commander has discretion to dispose of offenses committed by members of that command. 1° Ordinarily, the unit commander exercising immediate article 15 jurisdiction over the accused initially determines the disposition of charges." Superior commanders may withhold the authority to dispose of offenses in individual cases, types of cases, or generally, but they may not limit the discretion of subordinate commanders over cases in which they have not withheld authority. 12
Offenses should be disposed of in a timely manner at the lowest level that can adjudge an appropriate punishment for the offense and the accused." A commander must consider several factors when determining an appropriate disposition. Among the factors to be considered are the nature of the offense, any injury to victims, evidence of premeditation, an accused's past record and rehabilitative potential, and an appropriate potential sentence." To determine the possible sentences for various offenses, commanders must be aware of the jurisdictional limitations of each level of court-martial (for instance, a special court-martial may not adjudge more than 6 months' confinement) and should consider the maximum permissible punishment for the offense listed in Part IV of the Manual for Courts-Martial, 1984.
R.C.M. 301(a). 2 R.C.M. 301(b). 3 R.C.M. 402. 4 R.C.M. 403. 5 R.C.M. 404. 6 R.C.M. 407. 7 R.C.M. 301. 8 R.C.M. 307(a). 9 Although the immediate unit commander is normally the formal accuser, superior commanders may not direct that the unit commander or any other person prefer charges to which that person is unable to make the required oath. R.C.M. 307(a) discussion. 10 R.C.M. 306(a).
ri Id.
Id.
13 R.C.M. 306(b). 14 Id. at discussion.
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13-5. The unit commander with immediate article 15 jurisdiction over the accused
a. Preliminary inquiry. A commander who receives a report of an offense concerning a member of that command must conduct or cause to be conducted a preliminary inquiry into the matter. 15 The purpose of the inquiry is to determine whether charges should be preferred against the accused or whether another disposition is appropriate. A commander may conduct the investigation personally or by using members of the command, but a commander should ordinarily request assistance from law enforcement personnel in serious or complex cases. 16 The inquiry should gather all reasonably available evidence, including evidence in aggravation, extenuation, and mitigation." A commander must exercise personal discretion in deciding whether to prefer charges. A commander may prefer charges based solely on secondary information.I 8 A preliminary inquiry may consist of an examination of an investigative report or other summary of available evidence.I 9
If a commander, during the course of an inquiry, decides to interrogate a suspect, the commander must give article 31(b)2° and Miranda21 warnings and obtain a voluntary waiver of rights prior to any questioning. 22
b. Commander's options. First, if charges have been preferred by some other person subject to the UCMJ, a commander may dismiss the charges. 23 A decision by a subordinate commander to dismiss charges does not bar other disposition of the offenses by a superior commander. 24
Second, a commander may decide to take no action against the accused. 25 A preliminary inquiry might indicate that an accused is innocent of any crime, that the only evidence of guilt is inadmissible, or a commander may decide not to prosecute for other valid reasons. A subordinate commander's decision to take no action on an offense is not binding on superior commanders.26
Third, a commander may decide to take administrative action. 27 A commander might determine that an accused committed an offense, but that the best disposition for the offense and the offender is to take administrative rather than punitive action. Administrative actions include letters of reprimand, counseling, extra military instruction, adverse efficiency reports, and administrative separation from the Army.
Fourth, a unit commander could decide that an accused's violation is a minor offense and nonjudicial punishment under article 15 is appropriate. 28 A unit commander may use article 15 to impose punishments upon soldiers of the command for minor offenses. 29 Generally, a minor offense is one for which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than one year if tried by a general court- martia1. 3° If a commander properly imposes article 15 punishment for a minor offense, trial by court-martial for that offense is barred.3 I If a commander imposes an article 15, but the offense is not minor, later trial by court-martial is not barred. An accused may show at the subsequent trial that an article 15 was imposed. If the accused does so, the prior article 15 punishment must be considered in determining an appropriate sentence. 32 A commander who decides that an offense is serious enough to warrant trial by court-martial should exercise the fifth available option, preferring and forwarding charges. 33 A commander who reaches this decision must complete and forward DD Form 458, Charge Sheet, with allied papers to the summary court-martial convening authority. 34 Whenever charges are forwarded to a superior
R.C.M. 303. 16 Id. at discussion. 17 Id. at discussion. 19 Id. at discUssion. 19 Id. at discussion. 20 UCMJ art 31(b). 21 Miranda v. Arizona, 384 U.S. 436 (1966). In United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967), the Court of Military Appeals held that the
Mirandawarning requirements applied to the military. Although article 31(b) contains independent warning requirements for interrogators who are
questioning a person charged with or suspected of an offense, those warnings do not include advice concerning the right to counsel.Miranda requires
counsel warnings to be given when custodial interrogation occurs. In United States v. Jordan, 44 C.M.R. 44 (C.M.A. 1971), the Court of Military Appeals
held that a company commander was required to give Miranda warnings to a soldier whom he had ordered him to report to his office and questioned him
about an offense. Although the commander had given article 31 warnings, the court held that Mirandawamings were also required because the setting
and questioning constituted custodial interrogation. See also United States v. Dowell, 10 M.J. 36 (C.M.A. 1980) (commander required to give rights
warnings when informing accused of additional charges). Mil. R. Evid. 305(d)(1)(13) also requires counsel warnings when questioning occurs after
imposition of any pretrial restraint or after referral of charges.

22 Mil. R. Evid. 305(g)(1).
23 R.C.M. 402(1).
24 R.C.M. 401(c)(1).
25 R.C.M. 306(c)(1).
26 Id. at discussion.
27 R.C.M. 306(c)(2).
28 R.C.M. 306(c)(3). See also MCM, 1984, Part V; AR 27-10, chap. 3.
29 MCM, 1984, Part V, para. 1d(1).
30 MCM, 1984, Part V, para 1 e.
31 MCM, 1984, Part V, para. 1e; R.C.M. 907(b)(2)(D)(iv).

32 MCM, 1984, Part V, para. 1 e. See also United States v. Piero, 27 M.J. 367 (C.M.A. 1989) (accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe).
R.C.M. 307; R.C.M. 402(2). 34 R.C.M. 307; AR 27-10, para. 5-14. See also MCM, 1984, app. 4 (sample charge sheet).
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commander for disposition, the subordinate commander must make a personal recommendation as to disposition, including what level of court that commander believes is appropriate. 35
To prepare the charge sheet, a commander must complete the first three sections. In Section I, the commander records an accused's personal data, including name, social security number, organization, pay grade, and pay. A commander also lists any pretrial restraint and when the pretrial restraint was imposed. Pretrial restraint information is particularly important because the imposition of any restraint begins certain speedy trial time periods with which the Government must comply. 36 Accurate completion of the restraint portion of Section I notifies the trial counsel that the case must be processed expeditiously. Section II contains the charges and specifications. For help in drafting accurate charges and specifications, a commander should consult relevant paragraphs on offenses in Part IV of the Manual and the unit legal specialist or the trial counsel. In Section III, entitled "Preferral," the commander signs the charge sheet and swears that he or she has personal knowledge or has investigated the charges and they are true to the best of the commander's knowledge and belief. A commander must swear the charge sheet before a commissioned officer authorized to administer oaths. 37 An accused may not be tried on unsworn charges over his or her objection. 38 A commander also signs Section III indicating the date on which an accused was informed of the charges and the name of the accuser. 39 Normally, a commander should prepare an original and four signed copies of the charge sheet.°
A commander forwards the charge sheet with a transmittal letter and recommendation for disposition to the summary court-martial convening authority. 41 The letter should include as enclosures: a summary of available evidence for each offense; evidence of an accused's previous convictions and nonjudicial punishments; a statement concerning whether an accused has been offered nonjudicial punishment for these offenses; and other relevant matters, including appropri­ate information concerning an accused's background and character of military service. 42 If practicable, the letter should list expected Government witnesses and their availability for trial.
13-6. The summary court-martial convening authority
Article 24 lists those authorized to convene summary courts-Inartia1. 43 Summary court-martial is the lowest level trial court in the military. It is ordinarily used for the trial of minor offenses. In many commands, the summary court­martial is primarily used for the trial of soldiers who have refused nonjudicial punishment and demanded trial.
a.
Notation of the date of receipt of the charges. The summary court-martial convening authority's receipt of charges tolls the running of the statute of limitations. 45 A summary court-martial convening authority should have the date and hour of receipt entered on the second page of the Charge Sheet, DD Form 458, as soon as the charges are received.

b.
Correction of the charge sheet. Before deciding which disposition option to exercise, a summary court-martial convening authority must review the charges to ensure they are free from errors in substance and form. A . convening authority may personally make minor changes and need not return the charge sheet to the original accuser. A convening authority enters and initials the correction but may not change the charges to add a party, offense, or change other substantial matters. 46 Such major corrections result in unsworn charges. If a major correction is necessary, charges must be redrafted and an accuser must sign and swear the charges. A convening authority has a duty to review and correct the charges. Correcting charges does not disqualify a convening authority from convening a court-martial on the charges because the correction is made in an official capacity rather than out of personal interest.

c.
Options. The summary court-martial convening authority has the same options as the immediate unit commander. That is, the summary court-martial convening authority may dismiss charges, take no action, take administrative action, or take any other action a unit commander could take. 47 A summary court-martial convening authority can dispose of offenses by nonjudicial punishment under article 15. Although this is the same option that a unit commander has, a summary court-martial convening authority's punishment authority is usually greater because he or she is likely a field grade, rather than a company grade officer. 48

A summary court-martial convening authority may decide to return the charges to a unit commander either for
36 R.C.M. 401(c)(2)(A).
36 See R.C.M. 707. See also infra chap. 15.
37 R.C.M. 307(b)(1). See also United States v. Gameroz, 3 C.M.R. 273 (A.B.R. 1952) (nonprejudicial error for warrant officer to administer oath to

accuser).
38 United States v. May, 2 C.M.R. 80 (C.M.A. 1952) (failure to swear to charges or swearing before an officer not authorized to administer oaths
constitutes nonprejudicial error that is waived by lack of timely objection).
33 R.C.M. 308.
4° AR 27-10, para. 5-14.
41 R.C.M.401(c)(2)(A).
42 Id. at discussion.
43 UCMJ art. 24.
" R.C.M. 1301(b). See generally MCM, 1984, Part 11, chap. XIII.
45 R.C.M. 403(a) discussion.
46 R.C.M. 603.
47 R.C.M. 306(c); R.C.M. 403(b).
45 UCMJ art. 15; MCM, 1984, Part V, para. 5b(2)(13).

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further investigation or for disposition at that level 4 9 If a. convening authority returns charges to a unit commander for disposition, the convening authority may not direct any particular disposition. 5° A summary court-martial convening authority may also direct a pretrial investigation under article 32 51 and R.C.M.
405. This pretrial investigation, discussed in detail in chapter 16, is required before any charge can be referred to trial by general court-martial. Although a summary court-martial convening authority is empowered to direct this investiga­tion, a special court-martial convening authority often directs the article 32 investigation.
The option available to a summary court-martial convening authority that was not available to the immediate unit commander is the summary court-martial. A summary court-martial consists of a single officer who acts as military judge, court, and counsel. 52 An accused has the option to hire civilian defense counsel at a summary court-martial, but is not entitled to detailed military counse1. 53 The summary court may not try capital offenses, may not try officers, and may not try any soldier over the soldier's objection. 54 That is, a soldier offered trial by summary court-martial may refuse trial at that level.
The maximum authorized punishment at a summary court-martial depends on the accused's pay grade. For enlisted accused in grades E-1 through E-4, the maximum punishment includes confinement for 1 month, reduction to E-1, and forfeiture of two-thirds pay for 1 month. 55 For those in grades E-5 through E-9, the maximum punishment includes reduction of one grade and forfeiture of two-thirds pay for 1 month. 56 A summary court-martial may not adjudge confinement for those aaove the grade of E-4.
A summary court-martial convening authority refers charges to trial by an indorsement on page two of the charge sheet. 57 Even if the case was previously referred to a higher court and then withdrawn, the summary court-martial convening authority must refer the case to a summary court-martial by indorsement on the charge sheet.
Trial by summary court-martial is conducted according to the procedure contained in R.C.M. 1304 and DA Pamphlet 27-7.58 The pamphlet provides a detailed script for the summary court officer to use for the proceeding.
At the conclusion of a trial by summary court-martial, the record of trial is forwarded to the convening authority for review. 59 The accused may submit written matters to the convening authority for consideration prior to action on the case, in accordance with R.C.M. 1306. 60 Review by a judge advocate after the convening authority's action is in accordance with R.C.M. 1 1 12. 61
A summary court-martial convening authority's final option is to forward the charges to a superior convening authority. 62 A summary court-martial convening authority can forward charges by indorsing a unit commander's transmittal letter and including a personal recommendation for disposition, to include the level of court the summary court-martial convening authority believes appropriate. The recommendation must be signed by the summary court­martial convening authority. 63
13-7. The special court-martial convening authority
The next officer in the military justice chain is the special court-martial convening authority. Article 23 lists those authorized to convene special courts- martia1. 64 A special court-martial convening authority has the same options as the commander and summary court-martial convening authority; that is, he or she may dismiss charges, take no action, impose • article 15, or convene a summary court-martial . 65
A special court-martial convening authority is also authorized to convene the military's intermediate level trial court, the special court-martial. 66 This court cannot try capital offenses, but it can try both enlisted soldiers and officers. 67 It has more sentencing authority than the summary court-martial, but less than the general court-martial. A special court­martial may not confine an officer. 68 Otherwise, the maximum authorized punishment includes confinement for 6
49 R.C.M. 403(b)(2). 50 R.C.M. 401(c)(2)(8). 51 R.C.M. 403(b)(5). 52 R.C.M. 1301(a).
53 R.C.M. 1301(e). In Middendorf v. Henry, 425 U.S. 25 (1976), the Supreme Court held that the sixth amendment right to counsel did not apply to summary courts-martial, despite the possibility of incarceration. The Court said that the summary court was more a minor disciplinary proceeding than a trial. The Court was influenced by the fact that a soldier had the right to refuse trial at this level.
54 R.C.M. 1301c); R.C.M. 1303. 55 R.C.M. 1301(d)(1).
R.C.M. 1301(d)(2). 57 R.C.M. 601(e)(1); R.C.M. 1302(c). 55 DA Pam 27-7 (15 Apr. 1985). 59 R.C.M. 1305(e)(2); R.C.M. 1306. See also MCM, 1984, appendix 15 (sample record of trial by summary court-martial).
6° R.C.M. 1306(a). See alsoR.C.M. 1105.
61 RCM 1306(c); RCM 1112(a)(3).
62 R.C.M. 403(b)(3).
63 R.C.M. 401(c)(2)(A).
64 UCMJ art. 23.
65 R.C.M. 306(c); R.C.M. 404.
66 R.C.M. 404(d).
67 R.C.M. 201(f)(2)(A), (C).
" R.C.M. 1003(c)(2)(A)(ii).

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months, forfeiture of two-thirds pay per month for 6 months, and reduction to E-1 69
The membership of a special court-martial may take any one of three different forms. It may consist of: (1) at least three members; (2) a military judge and at least three members; or (3) a military judge alone if the accused requests." Army special courts- martial are not presently tried without military judges, so the first option is never used. 71 If the accused requests orally or in writing that the court have enlisted membership, at least one-third of the court members must be enlisted soldiers. 72
The military judge of a special court-martial is detailed by the chief trial judge or a designee, normally the general court-martial judge. 73
Trial and defense counsel are detailed for each special court-martial. The trial counsel need not be a lawyer, but an accused has the right to be represented at trial by counsel who is a lawyer and a member of the Judge Advocate General's Corps. 74 As with all levels of court, an accused has the option to retain civilian defense counsel at no expense to the United States. As a matter of practice, both trial counsel and defense counsel at special courts-martial are qualified lawyers. The administrative task of making counsel available is normally handled through the offices of the responsible staff judge advocate and the Trial Defense Service.
A special court-martial may try anyone subject to the UCMJ. The jurisdiction of a special court-martial extends to any offense made punishable under the Uniform Code of Military Justice for which the maximum punishment is less than death. 75
A special court-martial convening authority refers charges to trial by special court-martial through an indorsement on the charge sheet, similar to the summary courts-martial referral described in paragraph 13- 6c. 76 The record of trial at a special court-martial consists of a summarized transcript of the proceedings. 77 Court reporters are usually not detailed to these courts. 78
A special court-martial convening authority is ordinarily the commander who directs a pretrial investigation under article 32 and R.C.M. 405. This investigation is directed when the charges are serious enough that they may be referred to a general court-martial. If, after reviewing the circumstances of a case and any report of investigation, a special court-martial convening authority believes that disposition at a higher level is warranted, a special court-martial convening authority endorses the transmittal letter and forwards the charges to the general court-martial convening authority. A forwarding indorsement must include special court-martial convening authority's personal recommendation concerning disposition of the charges, including a recommendation on what level of court should try the charges. 79

13-8. The general court-martial convening authority
Article 22 lists those authorized to convene general courts-martial." A general court-martial convening authority has all the disposition options available to subordinate commanders and has two additional options by virtue of the position.
The first additional option is to convene a special court-martial empowered to adjudge a bad conduct discharge (BCD), informally known as a "BCD special court-martial." The BCD special court-martial is basically the same type forum as the special court-martial discussed above (often referred to informally as a "regular" special court-martial) except the BCD special court-martial has the addtional authority to adjudge a BCD as punishment. Before a BCD can be imposed at a special court-martial, certain requirements must be met. A verbatim record must be made; qualified defense counsel and a military judge must be detailed; and the court must have been convened by a general court­martial convening authority. 8 I
The BCD special court-martial provides a forum for those cases in which a convening authority deems a punitive discharge warranted, but does not believe that the charges are serious enough to deserve confinement in excess of 6 months. Use of BCD special courts saves time and resources. In cases in which a punitive discharge may be warranted and the case is referred at this level rather than to a general court-martial, the time and effort that would have been expended at an article 32 investigation are saved. Additionally, a BCD special court-martial does not require a written pretrial advice as does a general court-martial. 82 Because commissioned and warrant officers cannot receive bad conduct discharges, a BCD special court-martial is not appropriate for cases involving officer accused.
69 R.C.M. 201(f)(2)(B).
70 R.C.M. 501(a)(2).
71 AR 27-10, para. 5-3a provides that military judges will be detailed to special courts-martial whenever possible.
72 R.C.M. 503(a)(2).
73 AR 27-10, para. 5-3a.
74 AR 27-10, para. 5-5a.
75 R.C.M. 201(f)(2).
76 R.C.M. 601(e)(1).

R.C.M. 1103(c)(2); AR 27-10, para. 5-31. 78 AR 27-10, para. 5-11a. 79 R.C.M. 401(c)(2)(A). 8° UCMJ art. 22. ei R.C.M. 201(f)(2)(B)(ii); AR 27-10, para. 5-24. 62 AR 27-10 at 5-24d.
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The final option available to a general court-martial convening authority is the military's highest level trial court, the general court-martial. This court tries military personnel for the most serious crimes. The punishment authority of the general court-martial is limited by the maximum authorized punishment for each offense found in Part IV of the Manual and compiled in Appendix 12 of the Manual. 83 The death penalty may be adjudged at a general court-martial for certain offenses provided proper procedures for capital cases are followed."
Before any charge is referred to trial by general court-martial, an article 32 investigation must be conducted." The purpose of the investigation is to inquire into the truth of the matters set forth in the charges, to determine the correctness of the form of the charges, and to secure information upon which to determine a proper disposition of the case.86 The article 32 investigating officer's recommendation, however, is not binding on any convening authority. In addition, before a general court-martial convening authority refers a case to general court-martial, a staff judge advocate must provide a formal written pretrial advice. These two prerequisites to a general court-martial are discussed in detail in chapter 16.
A general court-martial may take either of two forms. It may consist of a military judge and not less than five members, or solely of a military judge if, before the court is assembled, an accused requests trial by military judge alone. 87 An accused may elect trial by judge alone in all cases except those referred as capital. 88 In all cases a military judge must be detailed to the court. 89 In a trial by a court with members, a minimum of five members must be present. 9° An enlisted accused is entitled to at least one-third enlisted membership upon request 9 1
Trial and defense counsel are also detailed for each general court-martial. Both the detailed trial counsel and defense counsel must be lawyers certified by The Judge Advocate Genera1. 92
83 R.C.M. 201(0(1)(A)(10.
84 R.C.M. 201(f)(1)(A)(ii); R.C.M. 1004.
88 UCMJ. art. 32 R.C.M. 405 R.C.M. 601(d)(2)(A).
88 R.C.M. 405(a) discussion. See also intrachap. 16.
87 R.C.M. 501(a)(1).
88 R.C.M. 201(f)(1)(C).
88 R.C.M. 501(a).
88 R.C.M. 501(a)(1)(A).
91 R.C.M. 503(a)(2).
92 R.C.M. 502(d)(1).
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Chapter 14 Pretrial Restraint
14-1. Pretrial restraint, in general
a. Introduction. Upon receiving a report of an offense, the commander must decide what to do with the soldier pending trial or other disposition of charges. Should the soldier continue to perform regular military duties with no change in status? Should there be some limits placed on the soldier's freedom? Should the soldier be totally removed from the unit and placed in pretrial confinement pending trial? The answers to these questions depend on the offense and the soldier involved and are governed by specific rules on pretrial restraint. Because of the inherently restrictive nature of military life and because the military has no system of bail, the procedures and rules governing pretrial restraint are carefully delineated in the Manual and case law.
Restraint is particularly significant because pretrial restraint implicates speedy trial rules) Because there is no bail system, the courts and the President, through the Manual, have fashioned strict speedy trial rules that require soldiers accused of crimes to be brought to trial quickly. 2 Certain forms of pretrial restraint also are taken into consideration on sentence, including day-for-day sentence credit for pretrial confinement and additional credit for the Government's failure to abide by the rules concerning when and how to impose restraint before trial. 3
b.
Pretrial restraint generally. Pretrial restraint is defined as "moral or physical restraint on a person's liberty which is imposed before and during disposition of offenses."4 Pretrial restraint includes pretrial confinement, the most severe form of restraint, and the general rules pertaining to restraint apply equally to pretrial confinement.

c.
Types of pretrial restraint. Rule for Courts- Martial 304 lists four types of restraint: conditions on liberty; restriction in lieu of arrest; arrest; and confinement.

(1)
Conditions on liberty. "Conditions on liberty" is a type of restraint listed and defined for the first time in the 1984 Manual. This restraint is defined as "orders directing a person to do or refrain from doing specified acts," and includes orders to report periodically to a specified person; orders not to go to a certain place (such as the scene of the crime); or orders to stay away from certain persons (such as the victim, potential witnesses, or co- accused). 5 As originally promulgated, any of these orders was a form of pretrial restraint that started the running of the speedy trial period. Effective 1 March 1986, however, the Manual was amended to eliminate conditions on liberty as a trigger for speedy trial provisions for "conditions" imposed after that date. 6 Unlike other forms of restraint, these orders are often not perceived to be a restriction on the pretrial liberty of an accused.

(2)
Restriction. Restriction in lieu of arrest, commonly called restriction, is the restraint of a soldier by oral or written orders directing the soldier to remain within certain specified limits which are set by the person ordering the restriction.? Soldiers placed on restriction usually continue to perform full military duties. This limiting of a soldier's freedom of movement to a particular area or areas is frequently expressed in terms such as"restriction to barracks, dining hall, chapel, and place of duty." The withdrawal of pass privileges, while it may limit the soldier's movement to the confines of a military installation, has not normally been considered restriction. 8

Restriction may also be imposed as punishment by a ;ourt-martial or under article 15. It may not be imposed as a form of unofficial punishment pending the disposition of offenses. Only a violation of a legally imposed restriction may be punished under article 134 as the offense of breach of restriction. 9

(3)
Arrest. Arrest is defined in the military justice system as restraint by oral or written orders directing a soldier to remain within specified limits. 1° This should not be confused with taking a person into custody, which is referred to as"apprehension" in the military) 1 Arrest is similar to restriction except that arrest is a more severe deprivation of

R.C.M. 707 states that all accused must be brought to trial within 120 days of preferral of charges or imposition of restraint under R.C.M. 304(8)(2)—(4)
or entry on active duty under R.C.M. 204, whichever is earlier.
2 In addition to R.C.M. 707 promulgated by the President in the Manual for Courts-Martial, the Court of Military Appeals devised specific rules concerning
soldiers in pretrial confinement in United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971). The court has also held that the Supreme Court's enunciated
rules for speedy trial under the sixth amendment in Barker v. Wingo, 407 U.S. 514 (1972) apply to the military. United States v. Johnson, 17 M,J. 255

(C.M.A. 1984). The Barker analysis includes evaluating prejudice to the defendant caused by excessive pretrial incarceration. The three rules operate
together to protect the speedy trial rights of the accused soldier. United States v. McCallister, 27 M.J. 138 (C.M.A. 1988).
3 See infra para.. 14-3, sentence credit.

4 R.C.M. 304(a).
5 R.C.M. 304(a)(1) and discussion.
6 Exec. Order No. 12,550, 3 C.F.R. 191 (1986 compilation), reprinted in 1986 U.S. Code Cong. & Admin. News 815. Conditions on liberty, however,

continue as a defined type of restraint. Commanders and counsel should be alert, however, that a court might construe restraint intended as a 'condition

on libertras 'restriction" thus triggering the 120-day speedy trial time of R.C.M. 707.

7 R.C.M. 304(a)(2).

The lack of pass privileges will usually have no impact on the speedy trial rules. United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988), petitiondenied, 28 M.J. 230 (C.M.A. 1989). But see United States v. Camacho, 30 M.J. 644 (N.M.C.M.R. 1990) (restriction to limits of base triggered 120-day speedy trial rule; no analysis provided). United States v. Powell, 2 M.J. 6 (C.M.A. 1976) (revocation of pass privileges considered the equivalent of restriction when all other members of the unit were granted pass as a matter of course). 9 United States v. Haynes, 35 C.M.R. 94 (C.M.A. 1964). 10 R.C.M. 304(a)(3). " R.C.M. 302.
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liberty in that a person in arrest is normally suspended from the performance of full military duties and the limits of arrest are usually narrower than those of restriction. Individuals in arrest may not exercise command, bear arms, exceed the limits of their arrest, perform guard duty, or perform other duties inconsistent with the status of arrest. ) ' The status automatically ends when the person who ordered the arrest or a superior authority places the arrestee on duty inconsistent with the status of arrest. 13 Thus, if an officer is placed in arrest but is then permitted to exercise command by the officer who ordered the arrest, the status of arrest is terminated. Persons in arrest may do ordinary cleaning and policing and may take part in routine training and duties.I 4
(4)
Pretrial confinement. Pretrial confinement is physical restraint depriving a person of freedom pending disposi­tion of offenses. 15 Confinement is normally served in an authorized confinement facility and is governed by specific rules that are discussed in detail below.

d.
Administrative restraint. R.C.M. 304(h) defines"administrative restraint" as "limitations ... imposed for opera­tional or other military purposes independent of military justice, including administrative hold or medical reasons." This subsection makes it clear that R.C.M. 304 does not limit a commander's ability to impose "administrative restraint." If restraint is "administrative", as opposed to the types of restraint listed in R.C.M. 304(a), it does not implicate the speedy trial rules. 16 The Court of Military Appeals has applied a "primary purpose" test to its analysis of the types of restraint.I 7 If the commander's primary purpose for imposing restraint is related to an upcoming court­martial, the restraint is not administrative and the speedy trial rules of R.C.M. 707 apply. If the commander's primary purpose for imposing restraint is administrative or operational, the restraint is "administrative" under R.C.M. 304(h) and the speedy trial rules are not implicated. Judge advocates should note that the court's determination of the issue focuses on the commander's primary purpose, not the commander's sole purpose. This issue is a factual one that cannot be resolved by the label that the commander gives to the restraint.I 8

e.
Who may order pretrial restraint. Commissioned officers and warrant officers may be ordered restrained only by their commanding officers.I 9 Likewise, only commanding officers may order pretrial restraint for civilians who are subject to court-martia1. 20 The authority to restrain civilians and officers may not be delegated. 2I Any commissioned officer may order the restraint of an enlisted person, and the authority to order restraint of enlisted persons of a

,
command may be delegated by the commanding officer to warrant officers and noncommissioned officers. 22 As with the authority to dispose of charges, superior competent authority may withhold from subordinates the power to order pretrial restraint. 23 For example, a battalion commander could withhold from company commanders the authority to order restraint of any person. In many commands, the authority to order restraint of officers is withheld by the general court-martial convening authority.
f When pretrial restraint may be imposed. The decision to impose pretrial restraint, and what type to impose, must be made on a case-by-case basis. Pretrial restraint is never required by law and the type of restraint selected, if any, should be only that sufficient to ensure the presence of the accused at trial or to prevent future serious misconduct. 24 In addition to determining that the specific restraint imposed is required by the circumstances, the person ordering restraint must have a reasonable belief that the person to be restrained has committed an offense triable by court­martial. 25 As AR 27-10 states,"An accused pending charges should ordinarily continue the performance of normal duties within the accused's organization while awaiting trial." 26
g. Procedures for ordering pretrial restraint. Except for pretrial confinement, pretrial restraint is imposed by notifying the soldier of the restraint, including its terms or limits. The notification can be oral or written and may be delivered to enlisted soldiers by the person who ordered restraint or another person subject to the UCMJ. 27 An officer or civilian must be personally notified of restraint by the officer who ordered it or by another commissioned officer. 28
Pretrial confinement is imposed by written orders (typically, a confinement order) and delivery of the soldier to a proper confinement facility. 29 A soldier who is placed under restraint must be informed of the offense that is the basis
12 R.C.M. 304(a)(3) and discussion.
R.C.M. 304(a)(3).
14
Id.
15 R.C.M. 304(a)(4).
16 See infra chap. 15, Speedy Trial.
17 United States v. Bradford. 25 M.J. 181 (C.M.A. 1987).
18 Compare United States v. Bradford, supra note 17 (liberty risk program held administrative restraint) with United States v. Wilkes, 27 M.J. 571

(N.M.C.M.R. 1988) (liberty risk program held not administrative restraint).
19 UCMJ art. 9(c); R.C.M. 304(b)(1). 20
Id. 21 Id.; R.C.M. 304(b)(3). 22 UCMJ art. 9(b); R.C.M. 304(b)(2),(3). 23 R.C.M. 304(b)(4). 24 UCMJ arts. 9(d), 10, 13; R.C.M. 304(c) and discussion. See also United States v. Haynes, 35 C.M.R. 94 (C.M.A. 1964).
R.C.M. 304(c). 26 AR 27-10, para. 5-13a. 27 R.C.M. 304(d).
28
Id. 29 Id. See a/soAR 27-10, para. 5-13c.
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for the restraint. 3° Except for pretrial confinement, pretrial restraint does not require notice to the soldier of the right to
civilian counsel or assignment of military counse1. 31
h. Punishment prohibited. Article 13 states that persons being held for trial may not be punished before trial. 32
Pretrial restraint must serve a legitimate purpose such as ensuring the prisoner's presence at trial or preventing foreseeable future serious misconduct. Pretrial restraint is not punishment and persons in pretrial restraint may not be punished for the offense which is the basis of their restraint. They may not be forced to undergo punitive duty hours or training, punitive labor, or to wear special uniforms prescribed for post-trial prisoners. 33 When pretrial restraint is imposed as punishment in violation of article 13, the soldier will receive credit toward any subsequent court-martial sentence. 34
i. Termination of pretrial restraint. Soldiers may be released from pretrial restraint by officials authorized to impose
the restraint. 35 Special rules regarding release from pretrial confinement are discussed below. Otherwise, pretrial
restraint ends when a sentence is adjudged, the accused is acquitted, or charges are dismissed. 36

14-2. Pretrial confinement
a. Pretrial confinement generally. As the most severe form of pretrial restraint, pretrial confinement is controlled by
a specific set of rules ani procedures. Pretrial confinement implicates specific speedy trial rules, requires credit against
the adjudged sentence for both legal and illegal confinement, and implicates constitutional considerations because of
the deprivation of liberty involved.

The Court of Military Appeals has decided several cases dealing with procedures for imposing pretrial confinement
and when such restraint is appropriate. In addition, the 1984 Manual for Courts-Martial has formalized the procedures
and summarized the requirements in R.C.M. 305, which also makes several significant changes in the law concerning
pretrial confinement.
Commanders make the initial decision to confine, but they should obtain all essential facts in cases in which pretrial confinement is being considered and consult with a judge advocate prior to ordering a soldier into pretrial confinement since the decision to confine will be reviewed to determine if confinement is legally supported. 37 Whenever a soldier is confined, the staff judge advocate or the designee must be notified. 38
In certain circumstances, pretrial confinement is not appropriate. For example, pretrial confinement is not ordinarily authorized when disposition of the charges by summary court-martial is contemplated. 39 Pretrial confinement also is not authorized for individuals pending administrative discharge when no charges are awaiting disposition. 46
The regulatory requirement that pretrial confinement in excess of 30 days be personally approved by the general court-martial convening authority has been rescinded. 41
b. Decision and standard for confinement. The initial confinement decision is normally made by the accused's unit commander. The person ordering confinement must have a reasonable belief that the accused has committed an offense punishable by court-martial; that lesser forms of restraint would be inadequate; and that confinement is necessary because: (1) the accused is a flight risk; or (2) it is foreseeable that the accused will engage in serious criminal misconduct.42
The commander must consider lesser forms of restraint and conclude that conditions on liberty, restriction, or arrest would be inadequate. 43 There is no requirement, however, to actually try a lesser form of restraint and have it prove inadequate."
"Serious criminal misconduct" includes intimidation of witnesses or other obstruction of justice, seriously injuring others, or other acts which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. 45 The definition and
30 R.C.M. 304(e). Other notification requirements for soldiers placed in pretrial confinement are found in R.C.M. 305(e). See infra para. 14-2c.See also
UCMJ art. 10, requiring that an accused placed in arrest or confinement prior to trial be immediately informed of the 'specific wrong of which he is
accused.' Failure to give the required notice does not generally entitle the accused to relief, absent a showing of prejudice. R.C.M. 304(e) analysis.
31 R.C.M. 304(e) discussion; R.C.M. 305(e).
32 UCMJ art. 13.

R.C.M. 304(f). See alsoUnited States v. Davidson, 14 M.J. 81 (C.M.A. 1982). 34 See infra para. 14--3c. 39 R.C.M. 304(g).
36 Id.
37 R.C.M. 305(h)(2)(A) and analysis. 39 AR 27-10, para. 5-13a.
39 UCMJ art. 10.
40 This follows from the provisions of UCMJ art. 10 that state that a prisoner placed into pretrial confinement must be informed of the specific wrong of
which he is accused and immediate steps taken to try or release him. If the soldier is only pending an administrative discharge with no criminal charges
pending, pretrial confinement would violate art. 10.
41 Interim Change 107, AR 190-47, para. 4-4c (15 Feb. 1987); rescission continued in Interim Change 108, 15 Feb. 1988.
42 R.C.M. 305(h)(2)(B).
43 Id. at discussion.

See also United States v. Otero, 5 M.J. 781 (A.C.M.R. 1978). United States v. Sharrock, 30 M.J. 1003 (A.F.C.M.R. 1990) (commander's failure to consider less severe forms of restraint was one factor that rendered pretrial confinement improper). " R.C.M. 305(h)(2)(B) discussion and analysis. 49 R.C.M. 305(h)(2)(B).
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criteria of R.C.M. 305 are not intended to allow pretrial confinement for the "pain in the neck" soldier whose behavior
is merely an irritant to the commander, but R.C.M. 305 does cover the "quitter" who seriously affects morale and
discipline in the unit by disobeying orders or refusing to perform duties." The rule slightly expands the bases for
confinement found by the Court of Military Appeals in United States v. Heard, 47 but essentially follows the ideas set
down in Heard that pretrial confinement is proper only to ensure the presence of the accused at trial or to protect the
safety of the community. Other considerations for placing soldiers in pretrial confinement, including concern for the
safety of the accused, are by themselves improper."
The prevention of future serious misconduct as a basis for pretrial confinement in R.C.M. 305 clearly incorporates
the concept of preventive detention as a basis for pretrial confinement. In United States v. Salerno the Supreme Court
held that under the procedures of the Bail Reform Act of 1984, preventive detention does not violate due process or the
excessive bail clause of the Constitution. 49
The commander who is considering pretrial confinement should take several factors into account. These include the
nature and circumstances of the offenses; any extenuating circumstances; the weight of evidence against the accused;
the accused's ties to the local community, including family, other employment, and local residence; the character and
mental condition of the accused; any past misconduct; the accused's past record of appearance at or flight from other
similar proceedings; and the likelihood of the accused's committing serious criminal acts if allowed to remain free or if
only lesser restraint is imposed. 5° As the commander is in a unique position to assess the predictive aspects of the
initial confinement decision, including the accused's likely behavior and the impact of release or confinement on
mission performance, the initial decision is left to the commander. 51 In addition, the commander's written assessment
of these factors serves as a partial basis for later review of the propriety of confinement by a neutral and detached
official.
c. Confinement procedure. An accused who is to be confined .must be advised of the nature of the offenses for which confined, the review procedures for confinement, the right to remain silent and that any statements made may be used against him or her, and the right to counse1. 52 The right to counsel includes the right to retain civilian counsel at no expense to the Government and the right to request assignment of military counse1. 53 There is no right to individually requested military counsel at this pretrial stage. This right to counsel pertains solely to counsel for the pretrial confinement stage of the proceedings, that is, to protect the accused's interest in the pretrial confinement determination and review by the neutral and detached officia1. 54 Counsel appointed at this stage is not required by law to represent the accused through tria1. 55 Continuing representation, however, is the usual practice in many jurisdictions. Whenever a soldier is to be ordered into pretrial confinement, the staff judge advocate requests an appointed counsel from the Trial Defense Service. 56 Army Regulation 27-10 expresses a preference for consultation between the accused and counsel prior to incarceration. However, if a Trial Defense Service counsel is not available within 72 hours of the accused's entry into pretrial confinement, the staff judge advocate must appoint other legally qualified counsel 5 7 The
45 Id. at analysis. United States v. Rosato, 29 M.J. 1052 (A.F.C.M.R. 1990), rev'd in part, 32 M.J. 93 (C.M.A. 1991) (Disobedient and disrespectful airman
properly placed in pretrial confinement to protect student squadron's morale and discipline.).
47 3 M.J. 14 (C.M.A. 1977). In Heard,the court addressed at length the question of the propriety of pretrial confinement. Much of the Manual rule is based
on the court's decision and subsequent interpretations of it. The court said that the seriousness of the offense does not per se justify confining an
accused and that the only considerations justifying confinement were assuring presence at trial and protecting the safety of the community. The drafters of
the 1984 Manual have expanded this language slightly by defining more broadly what is included in 'safety of the community' R.C.M. 305(h)(2)(8)

analysis.
48 Berta v. United States, 9 M.J. 390 (C.M.A. 1980).
49 481 U.S. 739 (1987).'In our society liberty is the norm, and detention prior to trial... is the carefully limited exception.' Id. at 755.'The Bail Reform Act
of 1984 allows a federal court to detain an arrestee pending trial if the government demonstrates by clear and convincing evidence after an adversary

hearing that no release conditions ' will reasonably assure... the safety of any other person and the community. '' Id. at 741. Held: The Act is not facially
invalid under due process or the excessive bail clause.

See also United States v. Lavalla, 24 M.J. 593 (A.F.C.M.R. 1987), petition denied, 26 M.J. 39 (C.M.A. 1988) (The standard for pretrial confinement was met when the pretrial confinement reviewing officer found the accused had the potential for harming others or engaging in further serious misconduct if released (though concern the accused might harm himself was also in evidence)); United States v. Rios, 24 M.J. 809 (A.F.C.M.R. 1987) (magistrate did not abuse his discretion in approving pretrial confinement considering these factors—Rios fled and hid for two nights and missed a half-day's duty before turning himself in; the robbery was planned ahead; the victim was viciously attacked, and Rios' lies to the police indicated his unreliability, though his commander also stated the incident was out of character for Rios;"seriousness of the offense alone is not sufficient justification for pretrial confinement,' but the"circumstances surrounding' a serious offense may support confinement); United States v. Moore, 32 M.J. 56 (C.M.A. 1991) (Accused who violated order not to communicate with his wife and daughter was properly placed in pretrial confinement. Obstruction of justice by suborning perjury of a witness is serious criminal misconduct that warrants pretrial confinement to protect the truth-seeking of a trial. Foreseeable that accused would again attempt to influence his daughters testimony.). United States v. Williams, 29 M.J. 570 (A.F.C.M.R. 1989), petition denied, 30 M.J. 106 (C.M.A. 1990) (Continued
commission of crimes, along with other factors, justified pretrial confinement.). Useful evidence of the potential for future misconduct also includes threats
of future acts by the confinee and psychiatric testimony.
so R.C.M. 305(h)(2)(B) discussion.
51 R.C.M. 305(h) analysis.
52 R.C.M. 305(e).
53 R.C.M. 305(f).
54 Id.

55 Id. at analysis. The rule is designed to recognize that counsel appointed at the pretrial confinement stage cannot always continue to represent the
accused because of the location of some confinement facilities and the limits on legal resources, although continued representation may be desirable in

many circumstances.
56 AR 27-10, para. 5-13b.
57 Id.

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Manual rule is intentionally silent concerning who informs the accused of these rights prior to pretrial confinement to
allow flexibility."
Failure to comply with the requirement for advising a confine does not automatically trigger a sentence credit remedy, but violations of the requirement are tested for specific prejudice. 59 Failure to provide appointed counsel after a request by the accused, however, does require administrative credit as discussed below. 60
The accused's commander must decide on the validity of pretrial confinement within 72 hours after it is imposed 6t Because the commander normally makes the initial confinement decision, this review ordinarily is done at the time pretrial confinement is ordered. If the commander who orders confinement takes the proper steps at the time of confinement, there is no requirement for a review by the same commanderinJot later than seventy-two hours" later. The Manual rule does not intend to include a "cooling off period" after which the commander must reevaluate the confinement decision. The 72-hour requirement applies to confinement ordered by someone other than the immediate commander. In that circumstance, the immediate commander must decide on the validity of the confinement within the prescribed time. This allows for a reasonably prompt determination while taking into consideration times in which the commander may not be immediately available.
In deciding whether confinement ordered by someone else will continue, the commander makes the same determina­tion required for any type of pretrial restraint: that less severe restraint would be inadequate and that the accused is either a flight risk or will foreseeably engage in serious criminal misconduct. 62 The accused's commander must prepare and forward to the magistrate a written memorandum, DA Form 5112-R (Checklist for Pretrial Confinement), detailing the reasons for the conclusion that the requirements for pretrial confinement are met. 63 The memorandum must be prepared by the seventh day of pretrial confinement so that it is available for the military magistrate's review. 64
d. Review by the neutral and detached officer. R.C.M. 305(i) provides specific procedures for review of confine­ment. The review of the legality of confinement must be completed within 7 days by a neutral and detached officia1. 65
66 A probableIn counting the 7 days, confinement of a soldier en route to his or her home station must be counted. cause review of a warrantless arrest may also be required within 48 hours if not previously conducted.° Although the Supreme Court has held that reviewing officials in similar circumstances need not be legally trained, 68 the Army requires that the pretrial confinement review be done by a military magistrate who is a qualified judge advocate. 69 The time period for review can be extended to 10 days by the magistrate, for good cause." The Government, however, must request the extension before the 7 day period has expired, and must justify the extension. 71
The pretrial confinement review is designed to be similar to what the Supreme Court required for parole revocation hearings," with the additional feature that the accused is always provided the opportunity to obtain counsel. The magistrate reviews the commander's memorandum and any additional matters, including any submitted by the ac-
58 R.C.M. 305(e) analysis.
59 Id. See alsoR.C.M. 305(k).
so R.C.M. 305(k). Violation of this provision requires administrative credit because the assignment of counsel is important to insuring the fairness of the
pretrial confinement process. See United States v. Chapman, 26 M.J. 515 (A.C.M.R. 1988), petition denied, 27 M.J. 404 (C.M.A. 1988).
61 R.C.M. 305(h)(2)(A).
62 R.C.M. 305(h)(2)(B).
63 R.C.M. 305(h)(2)(C); AR 27-10, para. 5-13c, 9-5b(2).

64 United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988). But see United States v. Williams, 29 M.J. 570 (A.F.C.M.R. 1989), petition denied, 30 M.J. 106

(C.M.A. 1990) (R.C.M. 305(h) read to require memorandum within 72 hours).
65 R.C.M. 305(i)(1).See also United States v. Lynch, 13 M.J. 394 (C.M.A. 1982).
66 United States v. DeLoatch, 25 M.J. 718 (A.C.M.R. 1987) (an AWOL soldier was confined for 1 day in the D-cell at Fort Di x, transferred for 6 days to

the Philadelphia Navy Brig, and then returned to his unit and confined at Hunter AAF, Georgia, with magistrate review coming on the second day of
confinement at Hunter AAF, the ninth day of confinement counting from day one at Fort Dix; held: magistrate's review was not timely; 2 days of R.C.M.
305 credit given in addition to Allen credit). Accord United States v. Ballesteros, 29 M.J. 14 (C.M.A. 1989).
67 The seven day requirement for a neutral and detached review was not based on specific guidance or caselaw. It was, instead, an attempt to comply
with the Supreme Court's decision in Gertstein v. Pugh, 420 U.S. 103 (1975), and accommodate other circumstances unique to R.C.M. 305. (See R.C.M.
305(i) analysis) InPugh, the Court held that the IV Amendment required a'prompr judicial determination of probable cause as a prerequisite _to an
extended pretrial detention following a warrantless arrest. The Court did not, however, define what constituted "prompt untilRiverside County v.
McLaughlin, 111 S.Ct. 1661 (1991). In Riverside County, the Court stated, 'Taking into account the competing interests articulated inGerstein, we believe
that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness
requirement of Gerstein.'/d. at 1670.Riverside County imposes an additional requirement on the military to conduct a probable cause review of any arrest,
absent warrant or other similar authorization, within 48 hours. Review of the probable cause for a warrantless arrest by a neutral and detached officer
during a commanders review under R.C.M. 305(h) or a pretrial confinement review under R.C.M. 305(i) should satisfy that requirement if conducted within

48 hours. Commanders should insure compliance with Riverside County pending changes to R.C.M. 305.
68 Shadwick v. City of Tampa, 407 U.S. 345 (1972) (magistrate who reviews probable cause determinations need not be a lawyer).
69 AR 27-10, para. 9-Id. This requirement is peculiar to the Army. Prior to the 1984 Manual, the Air Force used nonlawyers to review pretrial

confinement. Following the adoption of the new Manual, the Navy and Marine Corps changed to the Air Force system of using nonlawyer line officers as
magistrates.
78 R.C.M. 305(i)(4).

11 United States v. Dent, 26 M.J. 968 (A.C.M.R. 1988); accord United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988).
72 R.C.M. 305(i) analysis. The review procedure is patterned after the procedures described in Morrissey v. Brewer, 408 U.S. 471 (1972).

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cused.73 During the review process, both the accused and counsel are permitted to appear before the magistrate and
make statements. In addition, a representative of the command is also permitted to appear and make a statement. 74
Except for Military Rules of Evidence, Section V (Privileges) and Military Rules of Evidence 302 and 305, the Military Rules of Evidence do not apply at the review hearing 75 and there is no right to call or cross-examine witnesses. The command must show that the requirements for pretrial confinement are met by a preponderance of the evidence. 76 After completing the review, the magistrate either approves continued confinement or orders immediate release. The magistrate cannot impose conditions on release, but may suggest appropriate conditions to the unit commander. 77 The magistrate is required to make a written record of decision, including factual findings and conclusions. 78 This memorandum is available to either party upon request.
The magistrate's authority and responsibility over pretrial confinement does not end at the initial review hearing. After receiving significant additional information, the magistrate may notify the parties and reconsider the decision to confine.79 This provision of the Manual rule makes clear the continuing authority of the magistrate over pretrial confinement, an authority that diminishes but does not end when the case is referred to trial."
e. Who may order release. Once the accused has been confined, only certain persons may order release. In addition to the magistrate who reviews confinement, any commander of the accused can order release, 81 although this is probably limited in the same way in which any commander may confine; superior commanders may withhold from subordinates the authority to confine or order release. After charges are referred to trial, the detailed military judge can order release in some circumstances. 82
f Role of the military judge. The military judge has review authority for pretrial confinement once the case is referred to trial. Upon defense motion, the judge can review the propriety of pretrial confinement. This could be done at a pretrial conference or at an article 39(a) session.
The judge's release powers are limited, and he may order release only if
(1)
The magistrate's decision was an abuse of discretion and insufficient information is presented to the judge that justifies continued confinement;

(2)
Information that was not presented to the magistrate shows that the accused should be released; or

(3)
There has been no review by a magistrate and the judge determines that the requirements for confinement have not been met. 83

This limitation of the judge's release powers is new in the 1984 Manual and changes past case law in which the Navy and the Army Courts of Military Review had held that the military judge reviewed the confinement decision de novo and could simply overrule the decision of the magistrate." This change indicates the importance the Manual rules place on the magistrate's role in the pretrial confinement process. Recently, however, the Army Court again encour­aged military judges to conduct de novo hearings when determining whether a magistrate abused her discretion when reviewing pretrial confinement. 85
In addition to reviewing the decision to confine, the military judge also orders administrative credit for any pretrial confinement served as a result of abuse of discretion; failure to provide military counsel, if requested, before review; failure by the commander to comply with the procedu'es for action within 72 hours; failure by the commander to properly consider the reasons for confinement; or failure to comply with review procedures. 86 When the 1984 Manual was originally drafted, the administrative credit for failure to follow the rules was at a rate of 1 1/2 days' credit for
73 R.C.M. 305(i)(3)(A).
74 Id. The specific language, stating that the accused and counsel 'shall be allowed' to appear, while a representative of the command 'may appear"
seems to leave the decision of whether to hear the command's representative to the magistrate's discretion, while appearance of the accused is
mandatory, unless impracticable. Because violation of the review provisions makes the confinement 'illegal," requiring administrative credit (R.C.M.
305(k)), the magistrate should be cautious in deciding that appearance would be impracticable. See generaly United States v. Butler, 23 M.J. 702

(A.F.C.M.R.
1986), petition denied, 24 M.J. 56 (C.M.A. 1987) (held: at the magistrate's review-where counsel has been appointed, counsel [for the prisoner] should be present unless his or her presence has been waived'; if not present or waived. R.C.M. 305 credit is appropriate); accord United States

v.
Duke, 23 M.J. 710 (A.F.C.M.R. 1986).

While ex parte discussions with the magistrate, are not per se prohibited, they should be avoided as the prisoner has a right to know all information presented to the reviewing officer. United States v. Bell, 25 M.J. 676 (A.C.M.R.. 1987), petition denied, 27 M.J. 161 (C.M.A. 1988) (ex pane discussion by magistrate with prisoner's commander and trial counsel held not prohibited, at least when defense counsel was given access to all the information and an
opportunity to respond).
76 R.C.M. 305(i)(3)(B).
76 R.C.M. 305(i)(3)(C).
77 AR 27-10 para. 9-5b(3).
78 A.C.M.• .305(i)(6); AR 27-10, para. 9-5b(6).

R.C.M. 305(i)(7). B0 Id. analysis. See also R.C.M. 305(j) analysis. 81 R.C.M. 305(g). See United States v. Shelton 27 M.J. 540 (A.C.M.R. 1988) (court lists four different commanders with release authority). 82 Id.; R.C.M. 305(j). 83 R.C.M. 305(j).See also Porter v. Rochardson, 50 C.M.R. 910 (C.M.A. 1975) (upholding authority of military judge to order release from confinement). 84 United States v. Montford, 13 M.J. 829 (A.C.M.R. 1982), petition denied 15 M.J. 183 (C.M.A. 1983); United States v. Dick, 9 M.J. 869 (N.M.C.M.R.
1980).
as United States v. Hitchman, 29 M.J. 951 (A.C.M.R. 1990).
86 R.C.M. 305(j)(2); R.C.M. 305(k). The requirement for administrative credit is based on the Court of Military Appeals decision in United States v. Lamer,

1 M.J. 371 (C.M.A. 1976), although the violation in that case concerned art. 13's prohibition against punishment before trial. See infra para. 14-3.
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each day of illegal confinement. 87 After the Court of Military Appeals decided United States v. Allen, 88 discussed in detail below, the Manual provision was revised to require a one-for-one credit against the adjudged sentence for illegal confinement.
g. Confinement after release. After a competent authority has ordered release from confinement, the accused cannot be placed back into pretrial confinement before the trial is over except upon discovery of new evidence or misconduct which justifies confinement, either alone or in conjunction with other evidence. 89 This means that a commander cannot` overrule" a magistrate's decision by ordering an accused back into confinement after the magistrate has ordered release." If an additional offense occurs or newly discovered evidence justifies reconfinement and the commander orders the soldier back into pretrial confinement, the magistrate must be notified immediately. 91 The magistrate then conducts an additional review of the propriety of confinement, considering the new evidence or misconduct and any previously available information. 92
The prohibitions against reconfinement also preclude the Government from seeking immediate reversal of the magistrate's decision by appealing to a military judge if the charges have been referred to trial. Because reconfinement is only authorized upon newly discovered evidence or misconduct, the military judge may be precluded from overruling the magistrate and ordering the accused back into confinement. 93
h. Exceptions. The Manual rule concerning pretrial confinement and required review procedures contains limited exceptions that recognize the difficulty of compliance under certain circumstances. Some procedural requirements are suspended for vessels at sea." In addition, when operational requirements dictate, the Secretary of Defense may suspend some provisions of the rules for specific units or specified areas. 95 The purpose of the exception is not limited to units in combat, but also applies to units deployed in a remote area or on a sensitive mission. 96 In these circumstances, the Secretary of Defense may suspend requirements to advise the accused upon confinement of the right to remain silent and the right to counsel; to provide requested military counsel; for the commander to review confinement within 72 hours and to prepare a written memorandum; and for review of confinement by a neutral and detached officer. 97 The standard for confinement remains the same; the pretrial confinement is still subject to judicial review; and the commander must still evaluate the confinement to determine that less severe restraint would be inadequate and that the accused is either a flight risk or will foreseeably engage in serious criminal misconduct. 98 The time provisions and the review provisions are suspended, however, due to overriding operational concerns.
14-3. Sentence credit
What credit, if any, should an accused receive for time spent under pretrial restraint? Court decisions and the 1984 Manual have supplied some answers: specific credit must be given even for legal pretrial confinement. Credit is also required for restriction which is tantamount to confinement; for confinement imposed in violation of R.C.M. 305 as an abuse of discretion or in violation of certain procedural requirements of R.C.M. 305; and for pretrial restraint which amounts to punishment in violation of article 13's prohibition against punishment prior to trial.
a. Allen credit. In United States v. Allen, 99 the Court of Military Appeals held that all accused are entitled to day­for-day credit against their sentence for each day spent in pretrial confinement. Prior to Allen, the court had discussed the issue of credit for illegal pretrial confinement and fashioned rules for determining and awarding credit)" Allen, however, provides for credit for legal pretrial confinement.
In Allen, the court relied on a Department of Defense (DOD) Instruction requiring military sentence computation procedures to conform with those used by the Department of Justice. 101 Because the Department of Justice granted administrative credit following a statutory mandate, the court held the military must also give credit, despite an exemption in the underlying statute for courts-martia1. 102 The court reasoned that, while Congress had exempted the
87 Proposed Revision of the Manual for Courts-Martial, January 1984 Draft, Proposed Rule for Courts-Martial 305(k). 88 17 M.J. 126 (C.M.A. 1984).
R.C.M. 305(1). United States v. Rolfe, 24 M.J. 756 (A.F.C.M.R. 1987), petition denied, 25 M.J. 238 (C.M.A. 1988) (held 2-1: an absentee who is released from pretrial confinement by a magistrate at the location of apprehension may be reconfined at the home installation based on information available at the home installation). 9° See also United States v. Malia, 6 M.J. 65 (C.M.A. 1978). A commander is not precluded, however, from imposing a lesser form of restraint, such as restriction, on an accused released from pretrial confinement. AR 27-10, para. 9-5b(4). 9' AR 27-10 para. 9-5b(4). 92 AR 27-10 para. 9-5b(5). 93 R.C.M. 305(0.
94 R.C.M. 305(m)(2). The exceptions for vessels at sea are somewhat more limited than those allowed for operational necessity on the decision of the
Secretary of Defense.
98 R.C.M. 305(m)(1).
96 Id. at analysis.
97 R.C.M. 305(m)(1).
98 Id. at discussion.
99 17 M.J. 126 (C.M.A. 1984).
196 See, e.g., United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983), after remand, 20 M.J. 248 (C.M.A. 1985); United States v. Lamer, 1 M.J. 371 (C.M.A.
1976).
101 DOD Instr. 1325.4 (Oct. 7, 1986).
102 18 U.S.C. § 3568.

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military from the statute's provisions, the DOD Instruction had voluntarily adopted a policy of conforming sentence computation procedures for the military to those of the Department of Justice.I 03 The court also noted that this credit policy was in accord with the recommendation of the American Bar Association. 104
In a concurring opinion in Allen, Chief Judge Everett listed several policy benefits he saw resulting from the court's decision. First, the rule requiring credit would place the military person in the same position as a person tried in a Federal district court, thus providing greater uniformity of treatment. 1°5 Secondly, the credit rule would avoid the problem noted 2 years before by Judge Everett in United States v. Davidson, 106 that is, the potential that the total of pretrial and post-trial confinement might exceed the maximum authorized punislunent. 107 Lastly, Judge Everett ap­proved of the certainty of the new rule, finding it better than simply having the sentencing authority attempt to give undetermined weight to pretrial confinement on a case by case basis.'"
Army judges instruct court members that, in determining an appropriate sentence, they should consider the fact that the accused has spent time in pretrial confinement and also that the accused will receive day-for-day credit at the confinement facility against the adjudged sentence for any pretrial confinement. 109 Convening authority actions approving sentences to confinement should direct that Allen credit be given by the confinement facility.) to
b. When Allen credit applies.
(1) Credit for restriction tantamount to confinement. In United States v. Mason, the Court of Military Appeals extended the Allen rale to require credit for "pretrial restriction equivalent to confinement."'"
In United States v. Smith 112 the Army Court of Military Review applied Mason and set out useful guidance in a comprehensive opinion. The Smith court stated that the test to determine whether restriction is "tantamount to confinement," such that Allen credit must be given, is determined on the "totality of the conditions imposed."'" Relevant factors to consider include "the nature of the restraint (physical or moral); the area or scope of the restraint..., the types of duties, if any, performed during the restraint..., and the degree of privacy enjoyed within the area of
103 Allen, 17 M.J. at 128.
' 04 Id. (citing ABA Standards,Sentencing Alternatives and Procedures. § 18-4.7(a) (1979)).
105 Id. at 129.
106 14 M.J. 81 (C.M.A. 1982). InDavidson, Judge Everett disagreed with Judges Fletcher and Cook who reasoned that as pretrial confinement was

norpunishment," the total of pretrial and post-trial confinement could properly exceed the maximum authorized punishment.
107 Allen, 17 M.J. at 129. On the other hand, pretrial confinement is not punishment. It must serve independent purposes such as ensuring the accused's
presence at trial or preventing foreseeable future serious misconduct.

108
Id. 109 DA Pam 27-9, para. 2-43 (C3, 15 Feb. 1989). See also United States v. Stark, 19 M.J. 519, 527 n.3 (A.C.M.R. 1984), affd, 24 M.J. 381 (C.M.A.), cert. denied, 484 U.S. 1026 (1987); R.C.M. 1005(e)(4) discussion. Judge Everett in Allen stated that the members should be instructed specifically on how pretrial confinement would be treated. 17 M.J. at 130. Does this create a danger that court members might increase a sentence to compensate for the
credit? United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) (members instructed, without objection, accused would be credited with 68 days Allen credit.
No error when panel sentenced accused to 68 days plus 12 months confinement) See generally Davidson, 14 M.J. at 87 (Everett, C.J., concurring in the
result). Cf. United States v. Noonan, 21 M.J. 763 (A.F.C.M.R. 1986),pedtion denied, 22 M.J. 356 (C.M.A. 1986) (members should be instructed on Allen

and also art. 13, UCMJ credit).
110 Message, HODA DADA-CL, 181400Z Jan. 84, subject: Credit for Pretrial Confinement, U.S. v. Allen. See MCM, 1984, p. A16-1 for a 'form for action"
for illegal pretrial confinement credit which could also be used for Allen credit for legal pretrial confinement. Credits must be applied at the confinement

facility, and not through a reduction by the convening authority of the approved sentence, because of the graduated system of good time credits. See
generally United States v. Lamer, 1 M.J. 371 (C.M.A. 1976).
111 19 M.J. 274 (C.M.A. 1985) (summary disposition). In a footnote, the court stated that the "principle set out in United States v. Schilf, 1 M.J. 251

(C.M.A. 1976), is applicable in determining the amount of credit to be given for pretrial confinement." 19 M.J. at 274. Schfff equated "severe restric­tionwith pretrial confinement for purposes of applying theBurton speedy trial rule. 1 M.J. at 252. The Army Court of Military Review had earlier held that

Allendid not require credit for forms of pretrial restraint other than 'incarceration' United States v. Fair, 17 M.J. 1036, 1037 (A.C.M.R. 1984), petition
denied, 19 M.J. 121 (C.M.A. 1984).
112 20 M.J. 528 (A.C.M.R.), petition denied, 21 M.J. 169 (C.M.A. 1985).
113 Id. at 530.

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restraint."'" The issue of restriction tantamount to confinement has been the subject of much litigation. 115 Command­ers and their supporting judge advocates should avoid imposing conditions of restriction which raise the issue. On procedural matters, the Smith court interpreted Mason and Allen to permit the issue of eligibility for Allen credit to be raised for the first time on appeal. 116 More recently, however, with credit for restriction tantamount to confinement well established law, a broad waiver rule has been established: the issue is waived if not raised at trial. 117 The court also called for the Government, in future cases, to disclose any form of pretrial restraint to the trial judge on the record, and for the trial judge to determine the relevant facts and rule whether the restraint is tantamount to confinement.'" This ruling will be subject to review for abuse of discretion. 1 t 9 As a matter of policy, when an issue of tantamount to confinement is raised prior to referral of charges, part-time Army magistrates are precluded from reviewing the issue. A military judge is to make the review, acting in his or her capacity as magistrate. 129 As with the usual Allen credit,
114 Id. at 531.
115 United States v. Gregory, 21 M.J. 952 (A.C.M.R. 1986) (dicta, n.12: We believe that staff judge advocates following the factual distinctions apparent
in United States v. Smith, Wiggins v. Greenwald and Washington v. Greenwald will be able to provide meaningful guidance to commanders concerning
types of restrictions that are tantamount to confinement...The issue is raised when "an individual is to be restricted to a relatively small area (such as a
room or one floor of a barracks); when the individual has sign-in req rirements of an hour or less; when the individual is to be escorted with an armed
guard; or when the individual is, during any part of his restriction, locked in a room or otherwise physically restrained"), affd, 23 M.J. 246 (C.M.A. 1986)
(summary disposition); Washington v. Greenwald, 20 M.J. 699 (A.C.M.R. 1985) (88 days' pretrial restriction found not tantamount to confinement; credit
denied; Washington restricted to company area, place of duty, dining facility, and chaplain's office; performed normal duties; restricted to room after 2200
hours; signed in every hour at CO's office when not at work; -could travel to any place on post he needed to go during duty hours without an escort if he obtained permission and during non-duty hours with an escort), writ appeal denied, 20 M.J. 324 (C.M.A. 1985).Washington may demonstrate the greatest restriction which would not be found tantamount to confinement.See also Wiggins v. Greenwald, 20 M.J. 823 (A.C.M.R. 1985) (13 days' pretrial restriction
found not tantamount to confinement; credit denied, case less useful for analysis as Wiggins was outprocessing during the period and therefore did not perform normal duties), writ appeal denied, 20 M.J. 196 (C.M.A. 1985); United States v. McElyea, 22 M.J. 863 (A.C.M.R. 1986) (restriction not tantamount to confinement; performed normal duties; restricted to battery area, place of duty, chapel, and dining facility; hourly sign-in after duty; escort required for some purposes; but not for others); United States v. Cahill, 23 M.J. 544 (A.C.M.R. 1986) (restriction was tantamount to confinement; did not perform normal duties; remained in orderly room all during duty hours; escorted even to latrine; sign-in every half hour after duty hours; remained with CO during non-duty days); United States v. Keck, 22 M.J. 755 (N.M.C.M.R. 1986) (per curiam) (pretrial restriction to limits of U.S.S. Long Beach found not equivalent to confinement; accused performed regular shifts and was free to move about the ship, but was required to attend restricted men's muster "at various intervals throughout the day"); United States v. Berumen, 24 M.J. 737 (A.C.M.R. 1987), petition denied,26 M.J. 67 (C.M.A. 1988) (accused charged with rape and forcible sodomy; held: 4-day period of restriction at issue not tantamount to confinement; while the restriction was "relatively oppressive: and while"(destricting a servicemember to a one room area... may in and of itself create a condition tantamount to confinement," id. at 743, other factors lessened the impact of the restriction; the accused could go anywhere on post with an escort and was not denied any reasonable request for escort including to return to his room to shower and watch television. "Among the issues which may evolve from restraint tantamount to confinement are illegal pretrial punishment, speedy trial, and the preferral of charges against individuals who impose severe conditions of restraint.... Hopefully, if each staff just advocate initiates a continuing legal education program for key military personnel, the issue of restraint tantamount to confinement will seldom come before this court in the future" id. at 743 n.6); United States v. Loman, 25 M.J. 709 (A.C.M.R. 1987); petition granted, 26 M.J. 279 (C.M.A. 1988) ("Gregory appears to stand for the proposition that restriction tantamount to confinement is an authorized form of pretrial restraint... However, we do not believe [the issue has been] directly addressed...." 'We would make an additional observation in passing, however. Improvised confinement outside of a confinement facility creates an unregulated environment wherein the risk of maltreatment or cruelty is not only greater, but can be more easily shielded trom the law should it occur). United States v. Van Metre, 29 M.J. 765 (A.C.M.R. 1989) (Restriction tantamount to confinement where accused was required to: wear BDU at all times; live in barracks normally occupied by transients; possess only uniforms, personal hygiene items, and an alarm clock; remain in barracks room except from 1900-2100 each day; maintain a log of all his activities; and had 24 hour escort.); United States v. Russell, 30 M.J. 977 (A.C.M.R. 1990) (Restriction tantamount to confinement based on totality of the circumstances even though accused continued to perform normal milil4ry duties and could visit PX and commissary with escort where: accused restricted to small area of the military compound and barracks; radios, stereos, and books taken; doors removed from accused's room; civilian clothing taken; and visitors prohibited.); United States v. Villamil-Perez, 29 M.J. 524 (A.C.M.R. 1989), affd, 32 M.J. 341 (C.M.A. 1991) (PTR not tantamount to confinement when accused apprehended on Saturday night and restricted to barracks until 1800 Monday. Accused was escorted in barracks, to latrine, and to dining facility and missed duties on Monday. Accused was not, however, shackled, escort was unarmed, and restriction was relatively brief.); United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989) (Accused 'restricted to his room, the latrine, the chapel, mess hall and other places deemed to be his place of duty as long as he was escorted" by a NCO, could go any other place while off-duty so long as escorted by NCO, and was required to sign in every 30 minutes until lights out was not entitled to Mason credit for restriction tantamount to confinement. Accused asserted for the first time on appeal that his restriction was tantamount to confinement and defense counsel stated at trial "we do not claim it is tantamount to confinement?). 116 Smith, 20 M.J. at 532. The issue of illegal pretrial confinement is ordinarily waived if not raised at trial. United States v. Huelskamp, 21 M.J. 509
(A.C.M.R. 1985); United States v. Martinez, 19 M.J. 744 (A.C.M.R. 1984), petition denied, 21 M.J. 27 (C.M.A. 1985).
117 United States v. Ecoffey, 23 M.J. 629 (A.C.M.R. 1986) ("[I]n cases tried ninety days or more from the date of the decision [decided October 23, 1986j,
failure by defense counsel to raise the issue of administrative credit for restriction tantamount to confinement by timely and specific objection to the
presentation of data at trial [R.C.M. 1001(b)(1))... will waive consideration of the issue on appeal."Concurring opinion: "After reviewing or being informed of

the pertinent data on the charge sheet, the military judge should not only ask the defense counsel whether the information is correct, but whether the defense is satisfied that the pretrial restraint was not tantamount to confinement."). See also R.C.M. 001(b)(1): 'Trial counsel shall inform the court-martial of the data on the charge sheet relating to... the duration and nature of any pretrial restraint.... If the defense objects to the data as being materially
inaccurate or incomplete... the military judge shall determine the issue. Objections not asserted are waived."
Concerning ineffective assistance of counsel for failing to raise the issue of restriction tantamount to confinement,see United States v. Guerrero, 25 M.J. 829 (A.C.M.R. 1988) Ecoffey applied to waive issue on appeal of restriction tantamount to confinement when civilian defense counsel explicitly waived the issue at trial. `A counsel who fails to raise a legitimate issue at trial will often be inadequate as to that particular issue. However such a failure is not per se inadequate representation.... An appellant must show that the representation considered as a whole was so seriously deficient as to deny him effective counsel...." The Court of Military Appeals denied Guerrero's claim for credit for the time he spent in pretrial restriction allegedly tantamount to confinement. 28 M.J. 223 (C.M.A. 1989). Although the court denied the claim because of civilian defense counsel's assertion at trial that the restriction was not tantamount to confinement, it nonetheless considered the claim which was raised the first time on appeal.
115 Smith, 20 M.J. at 533.See also AR 27-10, para. 5-22.1. But see United States v. Diaz, 30 M.J. 957 (C.G.C.M.R. 1990), petition denied, 32 M.J. 13
(C.M.A. 1990) (judge has no obligation to inquire into the conditions of pretrial restriction to determine whether it was tantamount to confinement. Defense counsel must raise the issue or it is waived).
119 Smith, 20 M.J. at 533. 120 U.S. Army Trial Judiciary Standing Operating Procedure, February 16, 1989, p. 15-3, para. 48:1A)11 military judges may review pretrial confinement prior to referral based [on an allegation of restriction tantamount to confinement] upon request by the government, defense counsel or the soldier involved;" p. 15-3, para. 4d: "Part-time military magistrates will not review pretrial confinement based on an allegation of restriction tantamount to confinement"
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court members may be instructed to consider the pretrial restraint on sentencing and that credit will be applied at the confinement facility. 121
(2)
No Allen credit for confinement at the request of a foreign government. In United States v. Murphy, 122 the Court of Military Appeals decided the issue of administrative credit for time spent in pretrial confinement at the request of a foreign government. Murphy was a Marine stationed in Japan, awaiting trial by Japanese authorities for violation of Japanese drug laws. Because he had previously gone AWOL and was considered a flight risk, he was placed in pretrial confinement, pursuant to the request of Japanese authorities that he be present for trial. In an opinion in which two judges concurred, the court stated that, because the authority for confinement was not found in the UCMJ and because the service member was not confined based on a suspected violation of the UCMJ, the time spent in pretrial confinement afforded no basis for credit on the sentence to confinement adjudged by a subsequent court-martial on related charges. 123 The court noted that the period of pretrial confinement was a permissible factor for the sentencing authority to consider when determining an appropriate sentence, but held that it did not qualify the accused for day-for­day administrative credit under Allen.t 24

(3)
Allen credit for confinement by civilian authorities. In United States v. Huelskamp, 125 the Army Court of Military Review held that an accused was entitled to Allen credit for time spent in pretrial confinement in a civilian jail at the direction of military authorities pending return to his unit from AWOL status. In United States v. Ballesteros, 126

the Army Court of Military Review also held that Allen credit must be given for time spent in pretrial confinement in a civilian confinement facility at the insistence of civilian authorities, when the confinement is served in connection with misconduct ultimately resulting in a sentence to confinement at a court-martial.
c. Credit for violations of article 13 or R.C.M. 305.
(1)
General. Prior to Allen, which provides for credit for legal pretrial confinement, the Court of Military Appeals had addressed the issue of credit for illegal pretrial confinement in several cases. The court's primary concern was whether conditions of pretrial confinement violated article 13's prohibition against punishment before trial. In United States v. Larner, 127 the court determined that the "only legal and fully adequate remedy" was "to adjudge and to affirm an otherwise appropriate sentence, but to judicially order administrative 'credit' thereon for the number of days served illegally in pretrial confinement."

(2)
Article 13 credit. For egregious cases of illegal pretrial restraint which violate article 13, the military judge can order more than day-for-day credit against the sentence. In United States v. Suzulci,I 28 the accused lived, and worked with sentenced prisoners. In addition, for a period of about 10 days, the accused was put in administrative segregation in a sparsely furnished, dimly lit 6 by 8- foot cell. On one occasion, he was released from the cell only after he was coerced to sign a waiver to work with sentenced prisoners. The trial judge ordered 3 days' credit for each day of this illegal confinement. 129 The convening authority granted only day-for-day credit. The Court of Military Appeals, however, upheld the trial judge, finding that the military judge had authority to order more than day-for-day credit when the harsh conditions of the illegal confinement warranted additional credit.'" As Suzuki had completed his confinement, the court reassessed his sentence, invalidating all forfeitures. 131

The military judge is not necessarily limited in the types of sentence credit he can order when illegal pretrial restraint violates Article 13. Credit may include sentence reassessment of forfeitures and punitive discharges. 132
While article 13 credit may be applied to any conditions of pretrial restraint which amount to punishment, commingling of pretrial .confinees with sentenced prisoners has been a recurring issue. Historically, the Court of Military Appeals has held that if a pretrial confinee is commingled with sentenced prisoners, performs the same work, and is treated the same as a sentenced prisoner, the article 13 bar against pretrial punishment is violated. 133 The court
121 Smith, 20 M.J. at 533 n.3.
122 18 M.J. 220 (C.M.A. 1984).
123 Id. at 237 (Fletcher, J., concurring).

124
Id.
125 21
M.J.
509 (A.C.M.R. 1985). See alsoUnited States v. Davis, 22 M.J. 557 (A.C.M.R. 1986) (27 days'Afien credit given for pretrial confinement in a civilian jail at the instance of Federal civilian authorities as confinee would have received credit had he been tried in Federal district court); United States

v.
Aldridge, 22 M.J. 870 (A.C.M.R. 1986) (Davisdistinguished; Allen credit denied where soldier initially confined at the instance of State authorities on
State charges).
126 25 M.J. 891 (A.C.M.R.), Ord, 29 M.J. 16 (C.M.A. 1989).
122 1 M.J. 371 (C.M.A. 1976).
128 14 M.J. 491 (C.M.A. 1983), after remand, 20 M.J. 248 (C.M.A. 1985).
129 Id. at 492.

130 Id. at 491.
131 20 M.J. at 250.

132 United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987), petition denied, 25 M.J. 437 (C.M.A. 1987) After damaging his barracks room, Hoover was required to sleep in a pup tent for 3 weeks between 2200 and 0400 hours; he performed normal duties, was not required to sign in, could go to the barracks, dayroom, chapel, dining facility and gym, but was escorted whenever outside the company area; held: restriction was tantamount to confinement and Art. 13 was violated;"corrective or extra training" must he 'directly related to the deficiency' and ''oriented to improve performance in the problem area' Sentence reassessed to return forfeitures rather than determining specific credits. See United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R. 1991)Having an accused sleep in a pup tent outside his unit's barracks was punishment. The court set aside bad conduct discharge and total forfeitures. 133 United States v. Pringle, 41 C.M.R. 324 (C.M.A. 1970); United States v. Nelson, 39 C.M.R. 177 (C.M.A. 1969) (art. 13 violated, even in a combat zone facility, where pretrial and sentenced prisoners were treated the same, except for wearing different arm bands); United States v. Bayhand, 21 C.M.R. 84
(C.M.A. 1956).
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had also held that a confinee could not waive the protection of article 13 and . agree to accept the conditions of a
sentenced prisoner, even to gain access to recreational facilities available to sentenced prisoners. 134 In United States v.
Palmiter, 135 however, the court took a fresh look at the issues of commingling and waiver. The two sitting judges on
the case disagreed both in principle and in semantics. Judge Cox found the earlier decisions of the court "applied the
test of commingling in an inflexible manner." 136 For him, "the question to be resolved is not solely whether a pretrial
confinee was commingled with sentenced prisoners, but, instead, whether any condition of his confinement was
intended to be punislunent." 137 Judge Cox also reasoned that while a prisoner could not waive the protection of article
13, it was appropriate for confinement authorities to use a "Work Program Request" form to "inform the pretrial
detainee of what is available to him in pretrial confinement and to document his understanding and agreement." 138
Chief Judge Everett, on the other hand, reasoned that involuntary commingling was "stigma-by-association" and"usually should be considered ... in contravention of Article 13." 139 He further reasoned, however, that a confinee could "waive" article 13 and agree to commingling to gain the benefits which might result. 140 The judges agreed that a pretrial confinee should apply to the military magistrate for relief from alleged illegal conditions of confinement."' United States v. James 142 provides the latest guidance from the Court of Military Appeals. There the court stated that "pretrial confinement in a civilian jail is subject to the same scrutiny as confinement in a detention facility operated by the military." 143 The court set forth a test that resolved those issues left unresolved by Palmiter: conditions imposed on pretrial prisoners, to include commingling with sentenced prisoners, must be"reasonably related to an imr ortant governmental objection." 144 "One significant factor, but not the only one, in determining whether the conditions of confinement violate article 13 is the intent of the detention officials." 148 Although James was confined with sentenced prisoners, was not allowed to wear his uniform or rank but instead wore an orange jumpsuit, had access to limited recreational facilities, and was subjected to a stringent visitation policy, there was no violation of article 13. The court reasoned that there was no intent to punish James because each condition imposed on the prisoner furthered a legitimate governmental objective and was no more stringent than required to hold the accused for trial. Again, as in Palmiter, the court stressed that the accused's failure to complain about his confinement conditions until he appeared at trial provided additional " 'strong evidence that' he 'was not illegally punished.' "146 The message to defense counsel is clear: when pretrial confinement conditions violate article 13, seek relief from those conditions as soon as it is discovered. This provides dual benefits to the accused: (1) it should cause the illegal conditions to be removed; and (2) it establishes a record that supports the award of article 13 credit.
Procedurally, the convening authority, in an action, approves a sentence, and then orders credit for the number of
148
days determined by the judge. 147 The issue of illegal pretrial confinement is normally waived if not raised at trial.
(3) Credit under R.C.M. 305. In addition to the credit for illegal conditions of confinement developed by case law, the 1984 Manual in R.C.M. 305(j)(2) and 305(k) provides for administrative credit for certain violations of R.C.M.
305. This "R.C.M. 305 credit" results when confinement is served "as a result of an abuse of discretion" 149 or for
134 United States v. Bruce, 14 M.J. 254 (C.M.A. 1982). 135 20 M.J. 90 (C.M.A. 1985).
136 Id. at 95.
137 Id
139 Id. at 96.
139 Id. at 98. See also United States v. Austin, 25 M.J. 639 (A.C.M.R. 1987), petition denied, 26 M.J. 279 (C.M.A. 1988) (Palmiter applied; art. 13 not
violated when prisoner came into casual contact with sentenced prisoners while performing legitimate work details; there was no "intent to punish" and no
"stigma-by- association"); United States v. Hoover, 24 M.J. 874 (A.C.M.R.), petition denied. 25 M.J. 437 (C.M.A. 1987) (after damaging his barracks room,
Hoover was required to sleep in a pup tent for 3 weeks between 2200 and 0400 hours; he performed normal duties, was not required to sign in, could go
to the barracks, dayroom, chapel, dining facility, and gym, but was escorted whenever outside the company area; held; restriction was tantamount to
confinement and art. 13 was violated: corrective or extra training" must be 'directly related to the deficiency' and "oriented to improve... performance in
the problem area."Sentence reassessed to return forfeitures rather than determining specific credits); United States v. Daniels, 23 M.J. 867 (A.C.M.R.
1987) (pretrial confinement in Cumberland County jail under contract with Fort Bragg did not violate art. 13 though conditions were more onerous than in

military facilities); United States v. Walker, 27 M.J. 878 (A.C.M.R. 1989), ard, 28 M.J. 430 (C.M.A. 1989) (Cumberland County, N.C. jail did not violate
art. 13; no intent to punish accused and conditions did not constitute punishment).
140 Palmiter, 20 M.J. at 100.See also United States v. Walker, 27 M.J. 878, atfd, 28 M.J. 430 (C.M.A. 1989) (A.C.M.R. 1989).

141 id. at 96, 97.
142 28 M.J. 214 (C.M.A. 1989).
143 Id. at 215.
144 Id. at 216.
145 Id.

146 Id.
147 MCM, 1984, app. 16, at A16-1. See generallyUnited States v. Suzuki, 14 M.J. 491 (C.M.A. 1983),after remand, 20 M.J. 248 (C.M.A. 1985); UnitedStates v. McKinnon, 9 M.J. 769 (A.F.C.M.R. 1980). 146 United States v. Huelskamp, 21 M.J. 509 (A.C.M.R. 1985); United States v. Martinez, 19 M.J. 744 (A.C.M.R. 1984), petition denied, 21 M.J. 27
(C.M.A. 1985); United States v. Walker, 27 M.J. 878, aff'd 28 M.J. 430 (C.M.A. 1989) (A.C.M.R. 1989). For an exceptional case in which waiver was not applied, however, see United States v. Cruz, 25 M.J. 326 (C.M.A. 1987) (Cruz and about 40 other soldiers suspected of drug offenses were called out of a mass formation of 1,200 Divarty soldiers, escorted before the Divarty commander who did not return their salute, called "criminals" by the commander, searched and handcuffed, billeted separately pending trial, and assembled into what became known as the 'Peyote Platoon'; held: the "public denuncia­tion by the commander and subsequent military degradation before the troops prior to courts-martial constituteKII unlawful pretrial punishment prohibited by Article 13;""a new sentence hearing must be ordered so appellant can bring this prior punishment to the attention of his court-martiar; an issue of unlawful command influence was also raised; violation of art. 13 not waived when failure to raise at trial came "perilously close to inadequate
representation.'). '49 R.C.M. 305(1)(2).
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DODDOA-009217
noncompliance with R.C.M. 305 subsections (f), (h), (i), or (j). 15° These subsections provide both substantive and procedural requirements for pretrial confinement including: in (f), providing counsel on request before review of pretrial confinement and informing the confinee if the assignment of counsel is for that limited purpose; in (h), reporting to the confinee's commander within 24 hours if someone other than the commander ordered the confinement, action by the commander within 72 hours deciding properly whether the substantive requirements for confinement are met, documenting the reasons in the commander's memorandum, and forwarding the memorandum to the reviewing magistrate; in (i), proper review by a neutral and detached officer within 7 days; and in (j), proper review by the military judge upon motion after referral. The R.C.M. 305 credit is day for day and is applied first against any adjudged confinement. 151 If less confinement is adjudged than is needed to apply the credit, the credit is applied (using the conversion formula of R.C.M. 1003(b)(6) and (7)) against hard labor without confinement, restriction, fine, and forfeiture of pay respectively. 152 One day of confinement offsets 1 day of total forfeiture or a like amount of fine. 153
The credit is not applied against a punitive discharge or reduction as these punishments are "so qualitatively different from confinement." 154
It appears that R.C.M. 305 may be applied, however, for each violation of subsections (1), (h), (i), or (j). In United States v. Shelton, 155 the accused received 1 day of sentence credit for a late commander's review and additional credit for a late magistrate's review. In United States v. Chapman, 156 the accused received credit for a late magistrate's review and credit for the Government's failure to provide defense counsel when requested by the accused.
The R.C.M. 305 credit is the sole remedy for violations of the designated rule subsections. 157 The Supreme Court has held that dismissal of charges is not an appropriate remedy for illegal pretrial custody. 158 If the pretrial confine­ment is illegal, a prisoner who escapes cannot be convicted of escape from lawful confinement. 159
Concerning restriction equivalent to confinement, in United States v. Gregory, 16° the Army Court of Military Review held that when restriction is tantamount to confinement, the procedures for confinement in R.C.M. 305 apply, and when they are not complied with, day-for-day credit under R.C.M. 305(k) is required, in addition to Allen-Mason credit. 161 Thus, a soldier placed under restriction tantamount to confinement will likely receive double credit, that is, 2 days' sentence credit for each day of restriction tantamount to confinement. (One day of credit is required by United States v. Mason, the second day of credit is required because the command failed to follow the procedures of R.C.M. 305(f),(h),(i) or (.0).162
When restriction tantamount to confinement lasts 6 or fewer days, Mason credit will be given for each day of the restriction, but normally there will not be double credit under R.C.M. 305(k)--Gregory for the same period of time. 163
This is because neither the magistrate's review nor the commander's written memorandum is required until the seventh day of pretrial confinement. There is normally no violation of R.C.M. 305 and, therefore, no requirement for R.C.M. 305(k) credit until the seventh day of pretrial confinement. 164
156 Id.; R.C.M. 305(k).
151 R.C.M. 305(k). See United States v. Davis, 29 M.J. 896 (A.F.C.M.R. 1989) (Error to give one-half day credit for each day magistrate's review was late: credit must be day-for-day.).
152 Id. 153 id.
154 R.C.M. 305(k) and analysis.See also United States v. Loman, 25 M.J. 709 (A.C.M.R. 1987), petition denied, 26 M.J. 279 (C.M.A. 1988) (R.C.M. 305(k)
credit is not applied to set aside a punitive discharge); United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988) (R.C.M. 305(k) applied against approved
forfeitures of accused who had already served the confinement portion of his sentence).

155 27 M.J. 540 (A.C.M.R. 1988).
156 26 M.J. 515 (A.C.M.R.), petition denied, 27 M.J. 404 (C.M.A. 1988). But cf. United States v. Freeman, 24 M.J. 547 (A.C.M.R. 1987) (commanders
review presumed when he imposed restriction tantamount to confinement); United States v. Hill, 26 M.J. 836 (A.C.M.R. 1988) (no credit for commander's

failure to prepare memorandum prior to a late magistrate's review held on day 11).
157 R.C.M. 305(k) analysis.
156 Gerstein v. Pugh, 420 U.S. 103 (1975).See also United States v. Nelson, 39 C.M.R. 177 (C.M.A. 1969).

155 United States v. Green, 20 C.M.R. 331 (C.M.A. 1956); United States v. Brown, 15 M.J. 501 (A.F.C.M.R. 1982).
160 21 M.J. 952 (A.C.M.R. 1986),aff'd 23 M.J. 246 (C.M.A. 1986) (summary disposition).
161 The view of another panel of the Army Court that R.C.M. 305 did not apply to restriction tantamount to confinement was reversed by the Court of

Military Appeals. United States v. Amos, 22 M.J. 798 (A.C.M.R. 1986), rev'd, 23 M.J. 272-73 (C.M.A. 1986).
162 Id.; United States v. Russell, 30 M.J. 977 (A.C.M.R. 1990) (R.C.M. 305(k) credit granted in addition to Mason credit when no magistrate's review held).
163 See United States v. Freeman, 24 M.J. 547 (A.C.M.R. 1987) (Freeman under restriction tantamount to confinement for 6 days; Mason credit given;
held: additional R.C.M. 305 credit under Gregory not required here as R.C.M. 305 was not violated: confinee did not request counsel, commander

determined restraint was necessary, commander's memorandum not required until seventh day, and no requirement for magistrate's review as restraint
ended within 7 days); United States v. Bell, 25 M.J. 676 (A.C.M.R. 1987), petition denied, 27 M.J. 161 (C.M.A. 1988) (Freeman applied to deny additional

R.C.M. 305(k)-Gregory credit for 3 days' restriction tantamount to confinement). United States v. Demmer, 24 M.J. 731 (A.C.M.R. 1987) (Freeman applied
to deny R.C.M. 305(k)-Gregory credit for 6 days' pretrial restriction tantamount to confinement; day-for-day credit and er Mason given.). 164 Each situation should be individually reviewed to determine if a violation of R.C.M. 305 occurred. It is possible that a violation could occur within the first 6 days of pretrial confinement, thereby requiring credit under the rationale of Gregory. For example, the restriction tantamount to confinement may
have been imposed by someone other than the commander and the commander never reviewed that decision as required by R.C.M. 305(h)(2)(A); credit may then be appropriate.
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Credit under R.C.M. 305 has been given when a soldier was apprehended for being absent without leave and requested counsel en route to his or her home installation. The denial of this request for counsel was seen by the Army Court of Review as a violation of R.C.M. 305 even though counsel was provided prior to the magistrate's review of the pretrial confinement. 165
When the magistrate's review occurred later than within the required 7 days, R.C.M. 305 credit has been given, and in determining the 7-day period, days of confinement en route to the confinee's home installation have been coun­ted. 166 Credit under R.C.M. 305 has also been given when the magistrate's review was held without defense counsel present and defense counsel did not waive his or her appearance. 167
In computing days of credit under R.C.M. 305 for late review by the magistrate, both the first day of confinement and the day of the magistrate's review are counted. 168 The soldier is then given additional credit from the seventh day until the day the soldier is either released from confinement or there is a magistrate's review that "regularizes" the confinement. Different counting methods are used for Allen credit and Mason credit. 169 Counsel are encouraged to stipulate to the amount of Allen credit and R.C.M. 305(k) credit due to an accused; such stipulations are binding absent plain error. 170
Issues of R.C.M. 305 credit should usually be raised prior to sentencing. The credit is likely waived if not raised at trial. 171
d. The interplay anion„ the various administrative credits. What is the relationship among Allen credit, credit for illegal conditions of confinement in violation of article 13, and R.C.M. 305 credit? R.C.M. 305(k) states that 305 credit "is to be applied in addition to any other credit." The analysis to R.C.M. 305(k) specifically states that the credit is in addition to credit under Allen. The additional credit is intended to deter violations of the Manual rule and is provided as a matter of policy, not because cumulative credit is otherwise required. 172
Several cases have dealt with the issue of multiple credit. United States v. Gregory 173 held that when restraint is found to be tantamount to confinement, the procedures for pretrial confinement in R.C.M. 305 apply, and when they are not followed, day- for-day credit under R.C.M. 305 is required in addition to day-for-day credit under the Allen and Mason cases. Gregory also implies that R.C.M. 305 credit and article 13 credit might both be appropriate in a given case. 174 United States v. Suzuki 175 teaches that a military judge can order more than day-for-day credit for egregious conditions of pretrial confinement which violate the article 13 prohibition against pretrial punishment.
166 United States v. Chapman, 26 M.J. 515 (A.C.M.R. 1988) Chapman was apprehended as a deserter on 20 May by Alabama civilian police, taken by the military to Fort Rucker on 26 May, then on 27 May to Fort Benning, and finally, on 5 June to Fort Polk where that day his commander reviewed the need for PTC. Magistrate's review occurred on 10 June at which time Chapman had counsel. On 29 May, Chapman had asked to speak to an attorney, but was denied. 'While provision of counsel to appellant at Fort Polk prior to the R.C.M. 305(i) (magistrate's] review may have been technical compliance with R.C.M. 305(f) ['if requested... military counsel shall be provided... before the magistrate's review], denial of appellant's request on 29 May was, at least, noncompliance with the spirit and purpose of R.C.M. 305(f). We will, therefore, grant administrative credit against the sentence to confinement from 30 May through 9 June'.
166 United States v. DeLoatch, 25 M.J. 718 (A.C.M.R. 1987); accord United States v. Ballesteros, 29 M.J. 14 (C.M.A. 1989) (Allen credit given for time spent in civilian confinement "with notice and approval of military authorities,' and R.C.M. 30.1. requirements also began then. Additional R.C.M. 305(k) credit given starting from 7th day in civilian confinement.).
167 United States v. Butler, 23 M.J. 702 (A.F.C.M.R. 1986) (at the magistrate's review 'where counsel has been appointed, counsel (for the prisoner] should be present unless his or her presence has been waived:" if not present or waived. R.C.M. 305 credit is appropriate); accord United States v. Duke, 23 M.J. 710 (A.F.C.M.R. 1986).
168 United States v. DeLoatch, 25 M.J. 718 (1987) ("we decline to follow the method of computation for credit for restriction tantamount to confinement found in NeW'); United States v. Ballesteros, 29 M.J. 14 (C.M.A. 1989) (DeLoatch counting method followed for late magistrate's review); accord United States v. Dent, 26 M.J. 968 (A.C.M.R. 1988); United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988; United States v. Hill, 26 M.J. 863 (A.C.M.R. 1988); compare United States v. New, 23 M.J. 889 (A.C.M.R. 1987) (in counting the number of days' credit under R.C.M. 305 Gregory, for restriction tantamount to confinement, the first day is not counted and the last day is, just like counting speedy trial days); United States v. Weddle, 28 M.J. 649 (A.C.M.R. 1989) (New formula applies except when calculating time to determine whether there was compliance with R.C.M. 305(f) (counsel), 305(h) (commander notification and action), and 305(i) (magistrate's review of pretrial confinement); in those cases the DeLoatch formula applies.)
169 See United States v. Weddle, supra n.157; United States v. Hankton, 30 M.J. 1209 (A.C.M.R. 1989) (When computing day-for-day credit for ordinary pretrial confinement [Allen credit] don't count the first day, but count the last day. When computing R.C.M. 305(k) credit for a tardy magistrate's review, count the first day to determine the seventh day, then give credit from the seventh day to and including the day before the magistrate's review. Appendix shows computations.);but cf United States v. Spencer, 32 M.J. 841 (N.M.C.M.R. 1991) (Count each day or part of a day of pretrial confinement as an Allen day except where a day of pretrial confinement is also the day sentence is imposed.
170 United States v. Jenkins, 28 M.J. 808 (A.C.M.R. 1989). 171 The waiver rule of United States v. Ecoffey, 23 M.J. 629 (A.C.M.R. 1986) (Mason credit waived if not raised at trial) has been extended to R.C.M. 305 credit. United States v. Berry, 24 M.J. 555 (A.C.M.R. 1987), petition denied, 25 M.J. 193 (C.M.A. 1987) (dicta infers that Ecoffey also applies to R.C.M. 305 credit; waived if not raised at trial); United States v. Demmer, 24 M.J. 729 (A.C.M.R. 1987) (DeFord, S.J., concurring in part: while defense counsel raised issue of Mason credit at trial, the failure to raise the issue of R.C.M. 305 Gregory credit waived the issue, citing R.C.M. 1001(b)(1) and Ecoffey); United States v. Howard, 25 M.J. 533 (A.C.M.R. 1987) (if the issue of R.C.M. 305 Gregory credit is not raised at trial,"waiver may be considered appropriate,' citingEcoffey). In United States v. Hill, 26 M.J. 836 (A.C.M.R. 1988), waiver was not applied to 305(k) credit because the facts concerning
pretrial confinement were in the case documents, as distinguished from Howard. Hill does not require the Government to affirmatively show compliance with R.C.M. 305; if defense counsel fails to raise the issue end the record contains no evidence of noncompliance, the issue is waived. United States v. Snoberger, 26 M.J. 818 (A.C.M.R. 1988), petition denied, 29 M.J. 289(C.M.A. 1989); United States v. Kuczaj, 29 M.J. 604 (A.C.M.R. 1989); United States
v. Mathieu, 29 M.J. 823 (A.C.M.R. 1989); United States v. Taultme, 29 M.J. 1014 (A.C.M.R. 1990).
172 R.C.M. 305 analysis.
173 21 M.J. 952 (A.C.M.R.),aff'd 23 M.J. 246 (C.M.A. 1986) (summary disposition).
174 Id. at 958 n.14 (-Some would label R.C.M. 305(k) credit as additional credit for illegal pretrial confinement, but it is not broad enough in scope to cover

all such situations' citing Suzuki).
176 14 M.J. 491 (C.M.A. 1983),after remand, 20 M.J. 248 (C.M.A. 1985).

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In United States v. DiMatteo, 176 the Army Court of Military Review found the accused was entitled to Allen credit and that additional administrative credit for illegal conditions of confinement would have been warranted, had the defense requested it. Because defense counsel, however, presented evidence of the illegal conditions of confinement in extenuation and mitigation, and argued the matter on sentencing, the court reasoned the accused's relief was included in his adjudged sentence.'"
What conclusions can be drawn concerning the interplay among the various administrative credits? While under the 1984 Manual an accused can clearly receive Allen credit plus R.C.M. 305 credit, an accused may arguably also receive day-for-day or more additional credit for illegal conditions of confinement violating article 13. 178 Each case should be decided to provide appropriate relief to the accused and a deterrent against violations of the law. Defense counsel must be sure to ask for all credit that is applicable. Otherwise a judge is only required to award that credit that was requested and unrequested, but appropriate credits will be waived.t 79
176 19 M.J. 903 (A.C.M.R.), petition denied, 20 M.J. 305 (C.M.A. 1985).
177 Id. at 905. This result seems inconsistent with the requirement of R.C.M. 1005(e)(4) that the judge instruct on all matters in mitigation, including ''any

pretrial restraint.' R.C.M. 1001(c)(1)(13) permits the defense to present matters in mitigation and the defense certainly should do so since the judge is
required to instruct the members on these matters. A consistent result with the approach under Allen would be to permit the defense to present matters in
mitigation and have the judge instruct the members to consider the matter in determining an appropriate sentence and to consider also that the accused

will get the credit which the judge has ordered. Whether this approach under Allen is sound policy remains open to debate.
178 Suzuki, 14 M.J. 491 (C.M.A. 1983) atter remand, 20 M.J. 248 (C.M.A. 1985).
179 United States v. Bryant, 27 M.J. 811 (A.C.M.R. 1988) (Counsel requested and was granted Mason credit, but failed to request additional R.C.M.

305(k) credit; 305(k) credit held waived.). •

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Chapter 15 Speedy Trial
15-1. Introduction
a. The effect of Change 5 to the 1984 Manual for Courts-Martial. The 1984 Manual created new speedy trial standards for all courts-martial and attempted to alter case law pertaining to speedy trial in certain areas) The drafters of the Manual attempted to set definite standards, but these were subjected to various court interpretations. Change 5 sought to correct some problems associated with the original R.C.M. 707. The change provided guidance for granting pretrial delays and eliminated after-the-fact determinations as to whether certain periods of delay are excludable.'-Change 5 essentially rewrote the original R.C.M. 707. Several important changes included: clarifying when Govern­ment accountability begins and ends; deleting the statutory 90-day rule of section (d); eliminating specific exclusion provisions, requiring an independent determination beforehand to approve all pretrial delays; creating the additional remedy of dismissal with prejudice. 3 Most speedy trial litigation has focused on the 1984 Manual speedy trial rules of
R.C.M.
707.4 Other speedy trial rules, however, have not been completely supplanted. 5. While there are other speedy trial rules of lesser importance, the three rules of primary importance are: (1) The 120-day rule of R.C.M. 707; (2) The Burton 90-day rule; and (3) The constitutional protection of the sixth amendment.

b.
Sources of the right to speedy trial. A military accused's right to a speedy trial is based on several sources. 6 One source is the sixth amendment to the United States Constitution which states that in all criminal prosecutions, "the accused shall enjoy the right to a speedy and public trial." 7 A military accused also has additional speedy trial rights based on the Uniform Code of Military Justice (UCMJ). Article 10 of the UCMJ provides that, when an accused is placed in arrest •or confinement before trial, "immediate steps shall be taken to inform him of the [charges] and to try him or to dismiss the charges and release him."8 Article 33, UCMJ, states that when an accused is pending general court-martial, charges and documents shall be forwarded to the general court-martial convening authority within 8 days of the accused being ordered into arrest or confinement. 9 If that is not practicable, reasons for the delay must be reported in writing to the general court-martial convening authority. Article 98 of the UCMJ makes it a criminal offense to knowingly and intentionally fail to enforce or comply with any article of the UCMJ that regulates proceedings before trial or to cause unnecessary delay in the disposition of any criminal case)° In addition to these constitutional and statutory sources of the right to a speedy trial, the Court of Military Appeals created specific speedy trial rules in United States v. Burton." The final source of speedy trial rights is the newest one: R.C.M. 707, which sets a 120-day rule for all courts-martial. 12

c.
Some basic principles. Preindictrnent delay does not normally count against the Government. The sixth amend­ment does not protect a prospective accused against Government delay in bringing an indictment." This is true even when the accused's defense may have been "somewhat prejudiced" by the lapse of time before indictment."

The time between dismissal of charges and indictment by another jurisdiction may not result in a violation of the sixth amendment right to a speedy trial. In United States v. MacDonald," the accused, Dr. Jeffrey MacDonald, a captain and medical officer in the Green Berets, was charged by the military with murdering his wife and two daughters. After the article 32 investigation, the military charges were dismissed and MacDonald was released from the Army. More than 4 years later, he was indicted by a Federal grand jury for the same offenses. He contended that this 4-year delay violated his speedy trial right. The Supreme Court denied his appeal and held:
1 R.C.M. 707 created a 120-day rule for all trials. The accused must be brought to trial within 120 days of preterral of charges, imposition of restraint, or entry on active duty, whichever is earlier. The 90-day rule for arrest and confinement present in the original R.C.M. 707 was deleted by change 5. See
R.C.M. 707, analysis (C5, 15 Nov. 1991).
2 R.C.M. 707, analysis (C5, 15 Nov. 1991).
3 R.C.M. 707 (C5, 15 Nov. 1991); see Gilligan,Analysis of Change 5 to the Manual for Courts-Martial, The Army Lawyer, Oct. 1991, at 68.
4 See Wittmayer,Rule for Courts-Martial 707: The 1984 Manual for Courts-Martial Speedy Trial Rule, 116 Mil. L. Rev. 221 (1987).
5 United States v. Harvey, 22 M.J. (N.M.C.M.R. 1986) (the demand rule prong of Burton is no longer the law in light of R.C.M. 707), rev'd 23 M.J. 280

(C.M.A. 1986) (memorandum opinion) (n.: '[WO have not ascertained any Presidential intent to overrule Burton,' thus ] we need not inquire as to his power to displace a judicial decision predicated on Article 101. Following Harvey the Court of Military Appeals overruled the demand prong of Burton in United States v. McCallister, 27 M.J. 138 (C.M.A. 1988). The remainder of the Burton rule and its progeny continue in effect.
6 For a historical perspective of the speedy trial right (as far back as the year 1166 in England), see Klopfer v. North Carolina, 386 U.S. 213 (1967). See
also Tichenor, The Accused's Right to a Speedy Trial in Military Law, 52 Mil. L. Rev. 1 (1971).
7 U.S. Const., amend. VI.

a UCMJ art. 10; United States v. Nelson, 5 M.J. 189 (C.M.A. 1978).
9 UCMJ art. 33.
10 UCMJ art. 98; see United States v. Maresca, 26 M.J. 910 (N.M.C.M.R. 1988) (warning counsel and others in the chain of command that delaying
notice of preferral in order to manipulate the speedy trial clock is prosecutable under art. 98).
11 44 C.M.R. 166 C.M.A. 1971).

12 R.C.M. 707, discussion, and analysis (C5, 15 Nov. 1991). The Manual rule is loosely based on principles in the Federal Speedy Trial Act, 18 U.S.C.
§ 3161-3174 (1982), but the act itself specifically excludes trials by court-martial. See R.C.M. 707 analysis (C5, 15 Nov. 1991),
13 United States v. Marion, 404 U.S. 307 (171).
14 United States v. Lavasco, 431 U.S. 783 (1977).
15 456 U.S. 1 (1982).

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The speedy trial guarantee is not primarily intended to prevent prejudice to the defense caused by passage of time;
that interest is primarily protected by the Due Process Clause and by statutes of limitations. The speedy trial
guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but
nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the
disruption of life caused by arrest and the presence of unresolved criminal charges... Following dismissal of
charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public
obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. 16

In the military, substantial delay before charging, absent specific prejudice or a design to harass the accused, does
not trigger the accused's speedy trial rights under either the sixth amendment or article 10. The test is whether the due
process rights of the accused have been violated; for that the accused must show prejudice. The Court of Military
Appeals held in United States v. Rachels 17 that a delay of over 2 years in charging an accused who was held beyond
his normal ETS did not result in prejudice or a denial of due process.I 8

Interlocutory appeals by an accused from denials of motions to dismiss for lack of speedy trial are generally not permitted.I 9 In the military, the Government may seek reversal of an adverse speedy trial ruling by petitioning for an extraordinary writ, but the chances for success are generally not good. 2° Under the 1984 Manual, dismissal of charges for lack of speedy trial is subject to appeal by the Government under R.C.M. 908. 21
15-2. Articles 33 and 98, UCMJ
Articles 33 and 98, UCMJ, address speedy trial issues. In current practice, however, their utility is slight.
a. Article 33, UCMJ. Article 33 imposes an "8-day rule" for the. forwarding of charges to the general court-martial convening authority for persons likely to be tried by general court-martia1. 22
The provision evinces a congressional expectation that the article 32 investigation and actions associated with it should normally be accomplished within 8 days, with an escape clause if the complicated nature of the investigation makes this impractical. 23 The escape clause requires that any delays beyond the 8-day period be accounted for in writing. Failure to explain the reason for not forwarding the charges within 8 days is not grounds, in itself, for reversal of a conviction.24 Because article 33 is a procedural mandate that does not include any substantive rights or protections, deviations must be tested for specific prejudice to an accused. 25 An unjustified article 33 violation, when coupled with other unreasonable delay, may result in a violation of article 10, 26 and failure to comply with article 33's mandate will be weighed against the Government when determining whether due diligence has been exercised. 27
No remedy for an article 33 violation is contained in either the UCMJ or the Manual, and the Court of Military Appeals has not prescribed one. The mandate has become almost an anachronism: it is the rare case in which charges are forwarded to the general court-martial convening authority within 8 days. The procedural requirements for article 32 investigations, and the administrative requirements attendant to processing and forwarding charges make this requirement difficult to meet. Any noncompliance is best handled by a thorough explanation of all delays in processing when the charges are forwarded to the convening authority.
b. Article 98, UCMJ. Article 98, which provides that any person who is responsible for unnecessary delay shall be punished by court-martial, 28 is an unused provision. The Court of Military Appeals has indicated an interest in the use of article 98 to speed disposition of charges in cases when they found diligence lacking on the part of persons involved
16 Id. at 4.
17 6 M.J. 232 (C.M.A. 1979).

18 The court cited Marionand Lavesco, supra notes 13 and 14, to support the proposition. See also United States v. McGraner, 13 .J. 408 (C.M.A. 1982);
R.C.M. 707(a) discussion (delay from time of offense to preferral of charges or imposition of restraint not considered for speedy trial purposes). 19 United States v. MacDonald, 535 U.S. 850 (1978). This was the first of two reviews made by the Supreme Court of the case of Dr. Jeffrey MacDonald,see supra notes 15-16 and accompanying text. In this first instance, MacDonald tried to appeal before the trial on the merits commenced,
alleging that preindictment delay had denied his right to a speedy trial.
20 See, e.g., Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979); United States v. Ramsey, 28 M.J. 370 (C.M.A. 1989).
21 R.C.M. 908 allows interlocutory appeals by the Government of rulings of the military judge that terminate the proceedings as to a charge or

specification. Because a ruling that speedy trial has been denied results in dismissal of charges, the Government could appeal.
22 UCMJ art. 33.-When a person is held for trial by general court-martial the commanding officer shall, within 8 days after the accused is ordered into

arrest or confinement, tf practicable, forward the charges ... to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall
report in writing to that officer the reasons for the delay?
23 Id. See also United States v. Marshall. 47 C.M.R. 409 (C.M.A. 1973).
24 United States v. Gatson, 48 C.M.R. 440 (N.C.M.R. 1974).
25 United States v. Rogers, 7 M.J. 274, 275 n.1 (C.M.A. 1979) (no prejudice shown to result from art. 33 violation and delay was explained). See also

United States v. Nelson, 5 M.J. 189, 190 n.1 (C.M.A. 1978) (art. 10 is the only substantive speedy trial protection under the UCMJ). 26 United States v. Mason, 45 C.M.R. 163 (C.M.A. 1972).
27 United States v. Fernandez, 48 C.M.R. 460 (N.C.M.R. 1974). See also United States v. Mladjen, 19 C.M.A. 159, 41 C.M.R. 159 (1969) (where accused was pending special court-martial, but additional charges made trial by general court-martial more appropriate, commander complied with the 8-day rule by forwarding a report to the general court-martial convening authority within 8 days of the art. 32 investigating officer's recommendation of trial by
general court); United States v. Rogers, 7 M.J. 274 (C.M.A. 1979) (explanation of the delay in the commander's transmittal letter was a factor to be considered in determining if art. 33 had been violated).
28
UCMJ art. 98.
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in processing of charges. The court cautioned that an article 32 investigating officer who took 40 days to prepare a
three-page report was "perilously close to an Article 98 violation" 29 and discussed the possible use of article 98's
sanction against another investigating officer who took 55 days to conduct an investigation. 30 Similarly the Navy-
Marine Corps Court of Military Review has cautioned that those who delay the notice to the accused of preferred
charges in an attempt to manipulate the speedy trial clock may subject themselves to the penalties of article 98. 31 This
court extended its warning beyond trial participants to those in the "chain of command who either condone or
encourage the practice in a quest for prosecutorial efficiency."32

15-3. The Sixth Amendment
The Supreme Court addressed the sixth amendment right to a speedy trial in detail in Barker v. Wingo. 33 Barker had
been tried in a Kentucky State court for a double murder. The Government had requested and received 16 continuances
in Barker's trial while they attempted to convict a co-accused whom they wanted to testify against Barker. 34 The
defense did not object to the Government's delays until the 15th continuance. As a result of the delays, Barker was not
tried until more than 5 years after the murders. He spent about 10 months in pretrial confinement and the remaining 4
years on bail awaiting tria1. 35
The Court addressed Barker's claim that he had been denied a speedy trial and set forth some principles for deciding
the constitutional issue. The Court noted that society, as well as the accused, has an interest in a speedy trial. 36 It was
unlikely that the citizens of Kentucky enjoyed the thought of a possible murderer in their jurisdiction for several years
awaiting trial. In addition, the accused may benefit from delay as witnesses become unavailable, forget facts, or
become unwilling to testify. Because the right to a speedy trial is more vague than other procedural constitutional
rights, the only adequate remedy for a violation is dismissa1. 37 Finally, the Court said that the right cannot be
quantified into a specific number of days or months; courts must employ a balancing test weighing the conduct of the
Government and the conduct of the accused. 38
The Court listed four specific factors to be considered when applying the balancing test to a sixth amendment speedy trial issue: the length of the delay, the reason for the delay, prejudice to the accused, and assertion of the right to speedy trial. 39 Although none of the factors has a "talismanic effect," the length of the delay is "to some extent a triggering mechanism."40 One aspect of length of delay is the nature of any restraint imposed on the accused while awaiting trial. In this balancing test, the Government prevails when it successfully argues the second factor--reason for the delay. If the Government can show logical reasons for taking a long time to get to trial, it can usually overcome a motion to dismiss based on the sixth amendment alone. The accused prevails by arguing and showing the third and fourth factors--prejudice and assertion of the right. In Barker, the Court found that the 5-year period was certainly long enough to trigger the inquiry. 41 The Government argued that the reason for the delay was to try the co-accused first and showed the difficulty that trial presented. Barker could not show much prejudice, other than the 5-year waiting period. In addition, Barker asserted the right to a speedy trial only at the end of the 5-year period. Because he failed to assert the right, it seemed to the Court that he was willing to gamble that the Government might not successfully try him. Applying the balancing test, the Court concluded that the Government's explanation for the delay, coupled with the lack of prejudice and the failure to demand trial, showed that Barker's sixth amendment right had not been violated, despite the long delay in bringing him to tria1. 42
If other, possibly more restrictive, speedy trial rules do not apply, military courts will apply the Barker v. Wingo methodology to resolve claimed infringements of the right to a speedy tria1. 43 With the 120-day rule under R.C.M. 707, however, the need to apply a sixth amendment analysis to evaluate speedy trial claims is less likely. 44
The Court of Military Appeals applied the constitutional standard in United States v. Johnson, 45 in which 210 days
29 United States v. Powell, 2 M.J. 6 (C.M.A. 1976).
3° United States v. Perry, 2 M.J. 113 (C.M.A. 1977) (Fletcher, C.J., concurring in result).
31 United States v. Maresca, 26 M.J. 910 (N.M.C.M.R. 1988).
32 Id.
33 407 U.S. 514 (1972).
34 Id. at 516.
35 Id. at 534.
36 Id. at 519.
37 Id. at 522.
38 ld.at 530.
33 Id.
4° Id.
41 Id. at 533.

42 Id. at 534-36. For a recent application of the Barker v. Wingo analysis see United States v. Loud Hawk. 474 U.S. 302 (1986) (when defendants' liberty was not restricted and defendants were not otherwise prejudiced, orderly appellate review of interlocutory appeals justified
71/2 year delay). 43 United States v. Nelson, 5 M.J. 189 (C.M.A. 1978).See also United States v. Wholley, 13 M.J. 574 (N.M.C.M.R. 1982); United States v. Shy, 10 M.J.
582 (A.C.M.R. 1980).
" If there was a lengthy exclusion under R.C.M. 707(c), and prejudice to an accused coupled with a demand for speedy trial, conceivably the

Barker v.
Wingo analysis would require dismissal when R.C.M. 707 would not. 4° 17 M.J. 255 (C.M.A: 1984).
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elapsed from preferral of charges to trial. The trial did not begin until 180 days after the accused had demanded immediate trial, but the accused was not under any pretrial restraint." Applying the Barker factors, the court found that, although the accused had asserted the right, he could show no prejudice and the Government was able to adequately explain the delay in bringing the case to trial. The explanation included: the difficulty of securing an article 32 investigating officer while the unit was at a training site in Germany; scheduling difficulties of counsel; and problems in getting a trial date from the military judge. The court found that the sixth amendment had not been violated.47 Recognizing that the general court-martial jurisdiction was a very busy one and that mission requirements had caused some of the delay, the court stated that, while the processing time was not a model to be emulated, it was the result of operational requirements that prevented more expeditious handling." In the decision the judges recognized that it is not "the Army's primary mission to investigate and try court-martial charges" and that some delay may be tolerated as long as the Government was proceeding reasonably toward trial."
The Court of Military Appeals most recently applied the Barker factors in United States v. Grom. 50 While Grom was decided after the effective date of the 1984 Manual, the processing and trial of the case occurred before the effective date, thus rendering R.C.M. 707 inapplicable. In Grom, the accused was arrested in January 1981 by civilian law enforcement officers after a search of his off-base residence revealed drugs. Probable cause was provided by informa­tion from an informant working with the Naval Investigative Service. In March 1981, civilian charges which had been brought were dismissed because the civilian authorities were unable to produce the evidence seized from the accused's apartment. In May 1981, military charges were preferred against Grom. He was ultimately tried and convicted in January of 1982. 51
In considering the first Barker factor, length of delay, the court in Grom noted that delays of "as little as five or six months have' caused the Federal courts to inquire into the remaining Barker factors." 52 Here, the court found the Government accountable for approximately 8 months, from preferral of charges in May 1981 until trial in January 1982.53 On the second factor, reason for the delay, the court found nothing improper. As in Barker, the Government delayed prosecution hoping to try other persons first and to use their testimony against Grom. That this strategy failed did not make it illegitimate. 54 Concerning the third factor, the accused's assertion of the right, the court found Grom had timely demanded tria1. 55 The final factor, prejudice to the accused, however, weighed the balance in favor of the Government. While the accused claimed specific prejudice from involuntary retention for 5 months beyond his expiration of service date, the court found that retention "does not establish prejudice per se, but it is a circumstance to be considered."56 Here, however, any prejudice was slight as the accused continued to receive pay and allowances, was allowed leave, liberty, and the other privileges of military status, and performed normal duties. 57 The court concluded that the right to a speedy trial had not been denied as "the delay was for a legitimate purpose and any prejudice was minimal."58
15-4. Article 10, UCMJ
The requirements of article 10 are more rigorous than the sixth amendment. 59 Article 10 requires that immediate steps be taken to try or release a soldier who is in arrest or confinement. 60 Part of the emphasis on speedy trial in the military exists because a soldier does not have the opportunity for bail. 61 This is particularly significant when evaluating article 10 because it applies when there is pretrial restraint.
Article 10 is triggered by arrest or confinement of some significant duration. 62 Restriction can be sufficient to begin the accountability period, particularly when the restriction amounts to the legal equivalent of arrest. 63 Putting a soldier
46 Id. at 261. 47 Id.at 261-62.
48 Id.
49 Id. at 261.
50 21 M.J. 53 (C.M.A. 1985).
51 Id. at 55.
52 Id. at 56.
53 Id. Government accountability began with preferrat in May: "new' charges later preferred against the accused "in essence" duplicated the May charges,

with the addition of a conspiracy specification./d. at 54, 56.
54 Id. at 56-57.

ss
Id.at 57. 56 Id. 57 Id. at 58. 56 Id. 59 United States v. King,30 M.J. 59, 62 n.5 (C.M.A. 1990); United States v. Powell, 2 M.J. 6 (C.M.A. 1976) (art. 10, as more protective than the sixth
amendment, required dismissal for 161-day delay. 110 days of which were spent on restriction).

60 UCMJ art. 10."VVhen any person is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of
which he is accused and to try him or dismiss the charges and release him?
61 United States v. Mock, 49 C.M.R. 160 (A.C.M.R. 1974).
62 United States v.. Nelson, 5 M.J. 189 (C.M.A. 1974) (13 days' pretrial confinement is not confinement of significant duration).
63 United States v. Williams, 37 C.M.R. 209 (C.M.A. 1967) (138-day restriction which amounted to "arrest -during which accused "languished" in his
company area, coupled with other restriction, amounted to lack of speedy trial under art. 10): United States v. Smith, 39 C.M.R. 315 (A.B.R. 1967). afl'd,

38 C.M.R. 225 (C.M.A. 1968) (restriction to post which amounted to legal equivalent of "arrest" was sufficient to trigger art. 10 violation for 99-day
restriction).

134. DA PAM 27-173 • 31 December 1992
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on"legal hold" status at the expiration of enlistment to prevent discharge.is not restraint for article 10 purposes, 64 but revocation of pass privileges in some circumstances.may be tantamount to restriction 6 5 Government accountability for the delay extends only to the particular charges for which the accused is restrained.°
The test for compliance with article 10 is not constant motion but reasonable diligence in bringing the charges to tria1. 67 Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive. Even when some of the delay is caused by the Government's error, courts may find reasonable action in moving toward trial by the Government if the prosecution was not indifferent to the delay. 68 In determining whether there has been a denial of speedy trial under article 10, courts will examine whether there has been a purposeful or oppressive design on the part of the Government. 69 Unreasonable delay is determined by the facts of each case.
Courts will consider several factors in determining the speedy trial issue, including demand for trial, defense-caused delay, reasonableness of the delay, nature of restraint, and arbitrariness of the delay. Unlike the Barker methodology, prejudice is not listed as a factor. Courts have found, however, that an otherwise satisfactory explanation for a particular delay "might be revealed as unreasonable in light of specific harm to the accused occasioned by the delay." 70
71 but administrative consequences of pending charges do not The loss of a defense witness can be prejudicia1, aggravate the delay. 72 Noncompliance with article 33's 8-day rule weighs against the Government in showing due diligence.'"
When civilian authorities restrain the accused solely for military authorities, the Government is accountable for the delay.74 If the accused is apprehended by civilian authorities for unauthorized absence from the military, the Govern­ment is entitled to a reasonable time to pick up the accused and return him or her to the place of trial. 75 The detention of the accused by civil authorities for civil offenses cannot be charged against the Government when measuring whether the prosecution has proceeded with reasonable dispatch. 76 This is true whether the initial detention was by civil authorities or by military authorities who turned the accused over to civil authorities. 77 Pending foreign civilian charges and application for an administrative discharge do not justify delay by the Government in disposing of military charges. 78
The court-created Burton rules are a special application of article 10 and are discussed in detail below. Because of the attention paid to the Burton rules and R.C.M. 707, the independent article 10 claims are rarely litigated. Speedy trial violations are usually litigated under Burton and R.C.M. 707.
15-5. The Burton rules
a. Introduction. The Court of Military Appeals mandated speedy trial rules for military accuseds in pretrial confinement in United States v. Burton. 79 The court was concerned that the Armed Forces were not policing themselves on speedy trial issues and were allowing soldiers to remain in pretrial confinement for extended periods awaiting trial. The Burton court imposed two rules that apply to all accused in pretrial confinement: the "90-day" rule and the "demand rule." These rules are both special applications of article 10's mandate that immediate steps be taken to try or release soldiers in arrest or pretrial confinement. In the 90-day rule, the court created a judicial presumption that pretrial confinement in excess of 90 days violated article 10's"immediate steps" requirement. The demand rule
64 United States v. Rachels, 6 M.J. 232 (C.M.A. 1979); United States v. Amundson, 49 C.M.R. 598 (C.M.A. 1975).
65 United States v. Powell, 2 M.J. 6 (C.M.A. 1976) (all members of the accused's unit had pass privileges as a matter of course; privileges were withdrawn only for misconduct). 66 United States v. MareII, 49 C.M.R. 373 (C.M.A. 1974); United States v. Mladjen, 41 C.M.R. 159 (C.M.A. 1969); United States v. Stubbs, 3 M.J. 630
(N.C.M.R. 1977).
67 United States v. Tibbs, 35 C.M.R. 322 (C.M.A. 1965) (considering factors like seriousness of the charge, necessity for a complete investigation, time

required to prepare formal charges, time for convening authority to act on the charges, time for the formal pretrial investigation, and time for the formal
report, 55 days of pretrial confinement was reasonable).
68 See, e.g., United States v. Przybycien, 41 C.M.R. 120 (C.M.A. 1969) (56 days of the 117-day delay in bringing the accused to trial for desertion

resulted from Government efforts to obtain the accused's personnel record; despite the fact that additional efforts could have expedited the situation, this
conduct did not violate article 10; the court noted that the Government had not been indifferent to the delay, but had been actively attempting to move the
case to trial).

69 United States v. Parish, 38 C.M.R. 209 (C.M.A. 1968).
7° United States v. Smith, 37 C.M.R. 319, 321 (C.M.A. 1967). See also United States v. Parish, 38 C.M.R. 209 (C.M.A. 1968) (inexperience of officers
involved in processing the case explained the delay but defense loss of two key witnesses still made the delay unreasonable).

71 United States v. Parish, 38 C.M.R. 209 (C.M.A. 1968). See also United States v. Dupree, 42 C.M.R. 681 (A.C.M.R. 1970) (137-day delay, which
required defense .to use depositions to present crucial alibi testimony, warranted dismissal of the charges).
72 United States v. Amundson, 49 C.M.R. 598 (C.M.A. 1975) (loss of exchange and commissary privileges, denial of regular leave, and family separation
not considered).

73 United States v. Fernandez, 48 C.M.R. 460 (N.C.M.R. 1974). United States v. Fernandez, 48 C.M.R. 460 (N.C.M.R. 1974).
74 United States v. Keaton, 40 C.M.R. 212 (C.M.A. 1969).
75 United States v. McCanister, 24 M.J. 881 (A.C.M.R. 1987), aff'd on other grounds, 27 M.J. 138 (C.M.A. 1988) (Three days travel from West Virginia to
North Carolina was reasonable, not 15 days); United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986) (Government is entitled to a reasonable time); United

States v. Marin, 43 C.M.R. 272 (C.M.A. 1971) (57-day delay in returning accused to California from New York for trial was unreasonable, but warranted
no additional relief because accused was not prejudiced in preparing defense and sentencing authority considered entire confinement period when
adjudging sentence).

76 United States v. Bragg, 30 M.J. 1147 (A.F.C.M.R. 1990), petition denied, 32 M.J. 313 (C.M.A. 1991).
77 United States v. Reed, 2 M.J. 64 (C.M.A. 1977).
78 United States v. Mctvane, 50 C.M.R. 732 (A.C.M.R. 1975).
79 44 C.M.R. 166 (C.M.A. 1971).

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calls for the Government to respond immediately to a demand for trial from a soldier in pretrial confinement.
b. The "90-day" rule. For offenses occurring after 17 December 1971, whenever the accused's pretrial confinement
exceeds 90 days, 8° in the absence of a defense request for a continuance, there is a presumption of a violation of article
10 and the Government has a heavy burden to show diligence in bringing the accused to trial. In the absence of such a
showing, charges must be dismissed. This rule contemplates that, after 90 days of pretrial confinement, the focus shifts
from the Barker methodology, which balances the conduct of the Government and the conduct of the accused, to an
emphasis primarily on the Government's conduct.

(1) Inception of the Burton period. Government accountability normally begins with military confinement. 81 The
Government is not accountable for civil pretrial confinement when the accused is held for civil charges even though the
accused was apprehended by the military police and later turned over to civilian authorities. 82 The Government is
authorized a reasonable time to pick up an accused held by civilian authorities before the Burton period of accountabil­ity begins 83 Civilian restraint which effectively restricts military prosecution does not cause the presumption to arise. 84

Similarly, confinement at the request of a foreign country does not count toward determining Government accountabil­ity to bring the accused to trial for military charges also preferred. 85 The Government is charged with the period of
time during which its agents unreasonably refuse to arrange for the return to military control of an accused in civilian
confinement. 86 When an accused absents oneself from military jurisdiction, the Government is unable to process the
charges against the accused until his or her return, and is not charged with responsibility for the delay. 87

The Burton presumption is triggered by more than 90 days of pretrial confinement and normally does not apply to pretrial restraint other than confinement. 88 Severe arrest or restriction, however, can be "tantamount to confinement" for Burton purposes. 89 In United States v. Acireno," the court held that arrest in excess of 90 days also activated the Burton presumption. The court found that the accused, who was restricted to two floors of the barracks; was not permitted to go outside the barracks without an NCO escort; had his civilian clothing taken away; was not permitted to attend formations, including PT; and was not permitted to perform normal military duties was in the status of "arrest" for 153 days. 9I If an entire unit is restricted in the same manner, however, the restriction may not be tantamount to confinement even when the restriction is more severe than it might be for sentenced prisoners 92
A rehearing, being a trial de novo, to redetermine either an accused's guilt or an appropriate sentence, or both, falls within the Burton 90-day mandate. 93 For rehearing purposes, the 90-day period begins on the day the convening authority actually receives the decision of the Court of Review."
Each additional charge involves a separate determination of timeliness for speedy trial purposes. 95 Burton accounta­bility for delay in trial of charges based on subsequently committed or discovered offenses begins when the Govern­ment possesses substantial information on which it intends to prefer additional charges. 96 For purposes of counting the Burton 90 days, the day of entry into confinement is excluded and the day of trial is included. 97
80 Id. at 172. The Burton rule was originally announced to apply when pretrial confinement "exceeds three months.' After trial and appellate courts experienced difficulty figuring the 3-month period, the Court of Military Appeals refined the period to '90 days" in United States v. Driver, 49 C.M.R. 376
(C.M.A. 1974).
81 United States v. Lyons, 50 C.M.R. 800 (A.C.M.R. 1975); United States v. Hallerman, 47 C.M.R. 871 (N.C.M.R. 1973).
82 United States v. Reed, 2 M.J. 64 (C.M.A. 1976); United States v. Frostell, 13 M.J. 680 (N.M.C.M.R. 1982); United States v. Ward, 49 C.M.R. 110

(N.C.M.R. 1974); United States v. Emmons, 48 C.M.R. 373 (N.C.M.R. 1973); but see United States v. Swartz, 44 C.M.R. 403 (A.C.M.R. 1971).
83 See United States v. McCallister 24 M.J. 881 (A.C.M.R. 1987), aft'd on other grounds, 27 M.J. 138 (C.M.A. 1988) (3 days travel from West Virginia to
North Carolina was reasonable, not 15 days); United States v. Smith, 50 C.M.R. 237 (A.C.M.R. 1975) (6 days to return the accused 400 miles to the trial
situs was reasonable); United States v. Halderman, 47 C.M.R. 871 (N.C.M.R. 1973) (12 days to return accused from Oregon to Camp Pendleton was

reasonable).
84 United States v. Harris, 50 C.M.R. 225 (A.C.M.R. 1975) (principally due to civilian confinement, trial could not be scheduled when both the accused and

military judge could be present); United States v. Stevenson, 45 C.M.R. 649 (A.F.C.M.R. 1972).
85 United States v. Murphy, 18 M.J. 220 (C.M.A. 1984).
86 United States v. Keaton, 40 C.M.R. 212 (C.M.A. 1969) (accused held on State charges, but on behalf of Federal Government because of deserter

status).
87 United States v. Brooks, 48 C.M.R. 257 (C.M.A. 1974); United States v. O'Brien, 48 C.M.R. 42 (C.M.A. 1973); United States v. Bone, 11 M.J. 776

(A.F.C.M.R. 1981); United States v. Perkins, 1 M.J. 571 (A.C.M.R. 1975).

88 United States v. Molina, 47 C.M.R. 752 (A.C.M.R. 1973) (55 days' pretrial confinement and 37 days' restriction did not trigger Burton rule). 89 Art. 10 applies to cases when an accused is in the status of "arrest" or "confinement."To the extentBurton is based on art. 10, it should follow logicallythat both "arrest" and "confinemenrtrigger the Burton rules. The sentence credit cases on "restriction tantamount to confinement" such as United States v.
Smith, 20 M.J. 528 (A.C.M.R.), petition denied, 21 M.J. 169 (C.M.A. 1985) could be applied by analogy to the speedy trial area. Note, however, that sentence credit is given for confinement or restriction tantamount to the highest level of restraint: confinement. Art. 10 addresses not only confinement, but also the lesser restraint of "arrest." Thus, arguably "restriction tantamount to arrest," a significantly lesser level of restraint than confinement, couldtrigger art. 10' and Burton.
98 15 M.J. 570 (A.C.M.R. 1982). See also United States v. Schiff, 1 M.J. 251 (C.M.A.' 1976) (restriction to "narrow confines of squadron area," combined
with an hourly sign-in requirement, was tantamount to confinement and triggered Burton); United States v. Bowman, 13 M.J. 640 (N.M.C.M.R. 1982)
(restriction terestricted men's barracks" was tantamount to confinement).

91 Acireno, 15 M.J. at 571-72.
92 United States v. Buchecker, 13 M.J. 709 (N.M.C.M.R. 1982).
83 United States v. Flint, 1 M.J. 428 (C.M.A. 1976).
84 United States v. Cabatic, 7 M.J. 438 (C.M.A. 1979).
" United States v. Talavera, 8 M.J. 14 (C.M.A. 1979).
88 United States v. Johnson, 1 M.J. 101 (C.M.A. 1975); United States v. Johnson, 48 C.M.R. 599 (C.M.A. 1974); United States v. Boden, 21 M.J. 916

(A.C.M.R. 1986); United States v. Shavers, 50 C.M.R. 298 (A.C.M.R. 1975). 97 United States v. Manalo, 1 M.J. 452 (C.M.A. 1976).
136.
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(2) Termination of the Burton period. Release from confinement will. terminate the period chargeable to the Government, although the Court of Military Appeals found in United States v. Rowsey 98 that release after 85 days' confinement and subsequent Government inaction denied the accused's right to a speedy trial.
Article 39(a) sessions can, under some circumstances, terminate the Burton period. An article 39(a) session which includes the acceptance of a guilty plea and the entering of findings of guilty is"tantamount to trial" and terminates Burton accountability. 99 The Court of Military Appeals has never ruled directly on the effect of some article 39(a) sessions, although some concurring and dissenting opinions have discussed the issue and concluded that delays occasioned by pretrial sessions dealing with pretrial motions should not be part of the Government's accountable period, and that arraignment at an article 39(a) session terminates the Burton period.w°
(3)
The Burton methodology. In determining whether the Government has violated the 90-day rule, the following methodology is suggested. First, determine the number of days from confinement to trial. If the number exceeds 90, determine whether any days are excludable from Government accountability. Exclusions are discussed below. If, after excludable days are subtracted from total days the accountable time is under 90 days, the presumption of a speedy trial violation does not arise. If the number exceeds 90 after subtracting exclusions, then the presumption of denial of speedy trial rights has been raised. The Government must then demonstrate "extraordinary circumstances" that justify the delay. What constitutes extraordinary circumstances is discussed below. The Government uses "extraordinary circumstances" to rebut the presumption of a violation of article 10 when accountable time exceeds 90 days.

(4)
Exclusions. The Government is entitled to exclude certain periods of time from accountability. The major exclusions from the Burton 90-day period are times for defense-requested delay and times for psychiatric evaluation of the accused.

Continuances and delays because of defense request or convenience are excluded from the Burton 90-day period.I 01
1°2Parties can also stipulate that certain periods not be considered in determining whether the 90-day rule is applicable.
The question of what constitutes defense delay is often litigated in speedy trial motions. When the defense disputes responsibility for a particular delay, courts look to the real cause of the delay and to whether the Government was actually delayed. While defense- requested delays are generally attributable to the defense as the benefiting party, a showing that the Government could not have proceeded compels the conclusion that the Government was not actually delayed and the period will not be excluded. First, the court looks to the real cause of the request (that is, did the Government do anything to affirmatively necessitate the request?). Second, the court examines the result of the request (that is, did it really delay proceedings in any way?). 103
If the responsibility for the delay is shared by the defense and the Government, the period may not be chargeable to the Goveniment. 104 Concurrence by the defense in the trial date for defense convenience to accommodate the defense counsel's work schedule and leave will constitute defense delay.ms Mere acquiescence in a new trial date already set is not, however, a defense delay. 106 The Government must carefully record each delay when it occurs and get defense requests for delay in writing to minimize potential issues of whether certain periods should be excluded.
Some cases have held that a defense counsel's temporary duty (TDY) was not a defense delay, at least in the absence of a showing that the TDY was for personal cr other defense purposes. 1°7 In other cases, defense counsel's leave has been chargeable as defense delay, although not if the leave was taken in conjunction with TDY for a CLE course.' °8
Unavailability of the judge and failure of the defense to request another judge is not defense delay. 109 Some
99 14 M.J. 151 (C.M.A. 1982).
99 United States v. Cole, 3 M.J. 220, 225 n.4 (C.M.A. 1977) (art. 39(a) session must deal with accused's guilt to toll Burton); United States v. Marell, 49

C.M.R. 373 (C.M.A. 1974). An extension of the original art. 39(a) session after the court is assembled may justify delay beyond 90 days. United States v.
Towery,--2 M.J. 468 (A.C.M.R. 1975). But see United States v. Beach, 50 C.M.R. 560 (C.M.A. 1975) (Cook, J., dissenting); United States v. Williams, 1

M.J. 1042 (N.M.C.M.R. 1976).
100 See, e.g.,United States v. Cabatic, 7 M.J. 438 (C.M.A. 1979) (Cook, J., concurring in the result) (art. 39(a) session in which the accused is arraigned
constitutes a trial for the purposes of speedy trial rule); United States v. Roman, 5 M.J. 385 (C.M.A. 1978) (litigation of speedy trial motion at art. 39(a)

session tolled Burton); United States v. Beach, 1 M.J. 118 (C.M.A. 1975) (Cook, J., dissenting) (delay occasioned by time to deal with pretrial motions is
not part of Government's accountable time).
101 United States v. Roman, 5 M.J. 385 (C.M.A. 1978); United States v. Driver, 49 C.M.R. 178 (C.M.A. 1974); United States v. Herrington, 2 M.J. 807

(A.C.M.R. 1976) (oral request also deducted).
102 United States v. Montague, 47 C.M.R. 796 (C.M.A. 1973).
Ice United States v. Cole, 3 M.J. 220, 225 n.5 (C.M.A. 1977). See also United States v. Anderson, 49 C.M.R. 37 (A.C.M.R. 1974) (defense delay should

not be automatically subtracted; court should test to see if the request impaired the Government's ability to bring the case to trial within 90 days).
104 United States v. Talavera, 8 M.J. 14 (C.M.A. 1979); United States v. Montague, 47 C.M.R. 796 (C.M.A. 1973).
1 °5 United States v. Neal, 48 C.M.R. 89 (A.C.M.R. 1973).

106 United States v. Wolzok, 1 M.J. 125 (C.M.A. 1975); United States v. Reitz, 48 C.M.R. 178 (C.M.A. 1974) (trial counsel merely informed defense
counsel of new date); United States v. Wactor, 30 M.J. 821 (A.C.M.R. 1990).
10 United States v. Wactor, 30 M.J. 821 (A.C.M.R. 1990); United States v. Powell, 2 M.J. 849 (A.C.M.R. 1976); United States v. Lyons, 50 C.M.R. 804

(A.C.M.R. 1975).
196 United States v. Lyons, 50 C.M.R. 804 (A.C.M.R. 1975) (defense counsel present at docketing and leave considered in setting trial date). In United
States v. Powell, 2 M.J. 849 (A.C.M.R. 1976) (leave taken in conjunction with TOY for CLE course) and United States v. Perkins, 1 M.J. 571 (A.C.M.R.

1975), the defense leave was accountable time for the Government.
109 United States v. McClain, 1 M.J. 60 (C.M.A. 1975).

DA PAM 27-173 • 31 December 1992. 137
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docketing delays may, however, be excludable) I° A submission of a request for discharge for the good of the service
(chapter 10, AR 635-200) is not per se a request for delay. The time for processing the chapter 10 request will usually
be considered a normal incident of processing." If the request is submitted at such a late date that the trial must be
delayed in order to give the request"meaningful consideration," however, the period will probably be excluded. 112
Assertion of the article 35, UCMJ, right to a 3- or 5-day period from service of charges until trial is not normally a
defense-requested delay because this is an absolute right of the accused, 113 but, when the defense counsel affirmatively
misleads the Government and then asserts the right to delay after service simply to take advantage of speedy trial rules,
the defense may be held accountable for the time period)" Delay resulting from an attempt to negotiate a pretrial
agreement may under some circumstances amount to a request for a continuance by the defense. 115 A defense request
for joinder of all charges at one trial has been held not to be defense-requested delay.) t6 In cases involving multiple
accused, defense-requested delay for one accused does not extend to co-accused. 117
The other major exclusion from Government accountability besides defense-requested delay is time for psychiatric evaluations of the accused. Reasonable time delays for these evaluations will not be counted under the 90-day rule, although the Court of Military Appeals has indicated that a "problem may exist when the Government's conduct delays" the examination)" The period of time for psychiatric evaluation is excluded whether the evaluation was requested by the defense, 119 by the article 32 invfstigating officer, 12° or ordered by the military judge. 12 I In addition, the excludable period will encompass sufficient tide fnr medical personnel to complete a thorough evaluation, provided there is no evidence of dilatory tactics on the part of the Govenunent. 122 The exclusion encompasses the time from referral of the case to a sanity board until the board issues results. Time limitations which may interfere with the willingness of responsible officials to inquire fully into the sanity issue or which may interfere with the sanity inquiry will not be imposed.I 23 Courts will examine the delay to determine if there was due diligence in bringing the accused to tria1. 124
(5)
Extraordinary circumstances. When the Government is accountable for more than 90 days of pretrial confine­ment after subtracting exclusions, the presumption arises that article 10 and the accused's speedy trial rights have been violated. The Government may be able to rebut the presumption, however, by showing "extraordinary circumstances" that justify delay beyond 90 days. The Government may be able to show that the justifiable time exceeded 90 days in such cases as:

(a)
Those involving problems in a war zone or foreign country; or

(b)
Those involving complex offenses in which due care requires more than a normal time in marshaling the evidence; or

(c)
Those in which, for reasons beyond the control of the Government, the processing was necessarily delayed. 125

118 United States v. Talavera, 8 M.J. 14 (C.M.A. 1979) (delay caused by periodic change of court membership not charged to Government). But see
United States v. Wolzok, 1 M.J. 125 (C.M.A. 1975) (mere docket problems do not excuse delay).
111 See, e.g.,United States v. O'Brien, 48 C.M.R. 42 (C.M.A. likThY(request did not delay Government because it was denied at same time case was
referred); 'United States v. McElvane, 50 C.M.R. 732 (A.C.M4,195); United States v. Parker, 48 C.M.R. 241 (A.C.M.R. 1973).

112 United States v. Bush, 49 C.M.R. 97 (N.C.M.R. 1974) (request for delay was made 6 days before scheduled trial date). Cf. United States v. Abner, 48
C.M.R.
577 (A.C.M.R. 1974) (28-day docketing delay requested by defense for processing discharge request was not counted against the
Govemment).See also United States v. Bowman, 13 M.J. 640 (N.M.C.M.R. 1982). The processing of a chapter 10 request will not normally be subtracted
from Government accountable time, absent a specific defense request for delay. United States v. Parker, 48 C.M.R. 241 (A.C.M.R. 1973).
113 United States v. Murrell, 50 C.M.R. 793 (A.C.M.R. 1975); United States v. Pergande, 49 C.M.R. 28 (A.C.M.R. 1974); United States v. Parker, 48

C.M.R.
241 (A.C.M.R. 1973).
114 United States v. Cherok, 19 M.J. 559 (N.M.C.M.R. 1984), affd, 22 M.J. 438 (C.M.A. 1986).
115 United States v. Perkins, 1 M.J. 571 (A.C.M.R. 1975); but see United States v. Harris, 20 M.J. 795 (N.M.C.M.R. 1985) (time for plea negotiations not

excluded under R.C.M. 707(c)(3) concerning delay at request or with the consent of the defense).

118 United States v. Ward, 1 M.J. 21 (C.M.A. 1975).
1" United States v. Johnson, 1 M.J. 294 (C.M.A. 1976); United States v. O'Neal, 48 C.M.R. 89 (A.C.M.R. 1973).
118 United States v. Colon-Angueira, 16 M.J. 20 (C.M.A. 1983). See also United States v. McClain, 1 M.J. 60 (C.M.A. 1975); United States v. McDowell,

19 M.J. 937 (A.C.M.R. 1985) (while the defense is generally responsible for delay from request for a sanity board, the Government has some obligation
to proceed with dispatch"); United States v. Bean, 13 M.J. 970 (A.C.M.R. 1982); United States v. Hill, 2 M.J. 950 (A.C.M.R. 1976).
119 United States v. Rogers, 7 M.J. 274 (C.M.A. 1979); United States v. Hirsch, 26 M.J. 800 (A.C.M.R. 1988), petition denied, 27 M.J. 404 (C.M.A. 1988);
United States v. Jones, 6 M.J. 770 (A.C.M.R. 1978).
129 United States v. McClain, 1 M.J. 60 (C.M.A. 1975).

121 United States v. Hill, 2 M.J. 950 (A.C.M.R. 1976).
122 United States v. Badger, 7 M.J. 838 (A.C.M.R. 1979).
123 Id. (no tack of due diligence when 35 days elapsed between referral to sanity board and issuance of board results).
124 See, e.g.,United States v. Bone, 11 M.J. 776 (A.F.C.M.R. 1981); United States v. Farmer, 6 M.J. 897 (A.C.M.R. 1979). Cf. United States v. Leonard, 3

M.J. 214 (C.M.A. 1977) (Dunlap 90-day rule for post-trial processing not violated because time for defense requested psychiatric exam deducted).
125 Burton raises a presumption of a lack of speedy trial after 90 days of pretrial confinement; extraordinary circumstances rebut that presumption. When
the Government can show extraordinary circumstances, it demonstrates that due to the nature of this particular case, more than the normal time to bring
the accused to trial was needed. The factors to be considered-come from United States v. Marshall, 47 C.M.R. 409 (C.M.A. 1973), in which the court
held: When a Burton violation has been raised by the defenseefthe Government must demonstrate that really extraordinary circumstances beyond such
normal problems as mistakes in drafting, manpower shortages, illnesses, and leave contributed to the delay." 47 C.M.R. at 413. This is a different method
than used under R.C.M. 707, which sets a specific time period beyond which the Government can never prevail. R.C.M. 707 differs from the Burton
method by taking what has been considered -extraordinary circumstances" in case law and making them excludable time periods under the 120-day

rule.See R.C.M. 707 analysis. Once the Government exceeds the 120 days, however, it can no longer claim that it needed an even longer time to bring
the accused to trial. See infra para. 15-6.

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The Government must demonstrate a nexus between the claimed extraordinary circumstance and the delay. 126 Facts
in the record must support a determination that because of extraordinary circumstances, more than the normal
processing time was required.I 27 The best way for the Government to make this showing is through the use of a
detailed chronology of events which shows the processing of the case and demonstrates how extraordinary circum­
stances required more processing time than 90 days.I 28
The fact that an offense arose in a foreign country is not per se an extraordinary reason for delay, I29 nor is resolution
of a foreign jurisdiction question or the absence of a judge for a court-martial conducted in a foreign country.I 30 Again,
the Government must show how these circumstances are extraordinary and how they cause slower than normal
processing.
Complex cases may present extraordinary reasons for delay, although a serious offense is not per se an extraordinary
circumstance. 131 Rather, the facts in the record must support a determination that because of the serious or complex
nature of the charges, due care required more than a normal time to gather the evidence. A lengthy article 32
investigation and extensive laboratory testing are facts that help establish the serious and complex nature of a caae,I 32
although an article 32 investigation delay after the accused raises self-defense may not be an extraordinary circumstan­
ce. 133 Delay caused by the accused's repudiation of a waiver of the article 32 investigation, however, is chargeable to
the defense. 134 A wide-ranging international search for witnesses plus the accused's successive requests for faraway
military counsel, thy; accused's requests for extensive data and interrogatory proceedings at a far distant point, and
accused's petition to the Court of Military Appeals for relief from pretrial confinement, were found to all amount to
extraordinary circumstances by the Army Court of Military Review in United States v. Cabatic.I 35
Additional charges are not normally a reason for delay beyond 90 days for trial of the original charges.I 36 Additional charges may, however, be extraordinary circumstances in some cases. In United States v. Groshong,I 37 a case involving two sets of additional charges and other later offenses which were investigated but not referred to trial, the Court of Military Appeals found that the "repeated misconduct" by the accused constituted "reasons beyond the control of the Government" and held that the accused had not been denied a speedy trial despite 104 days of pretrial confinement. 138
Even when the accused expresses a desire to be tried on all charges at one trial, the Government is not excused from proceeding with due diligence. The policy of the 1969 Manual that all known offenses be tried at one court-martial was forced to yield when in conflict with article 10 and Burton. 139 The 1984 Manual eliminates this requirement, making it easier for the Government to comply with Burton.I 40 The accused can be tried for the original charges before 90 days of pretrial confinement has elapsed to comply with Burton and the Government may still try the accused on other pending charges at a later time."'
Operational demands may be an extraordinary circumstance. 142 The unauthorized absence of an essential prosecution witness may be an extraordinary circumstance,I 43 as may the diversion of investigative or legal personnel to investigate
126 United States v. Henderson, 1 M.J. 421 (C.M.A. 1976) (court dismissed murder charges in an egregious"murder for hire" case in which the accused was
in pretrial confinement for 132 days; despite the fact that the crime occurred in Okinawa and there were multiple defendants, the court held thatBurton had been violated because more than 90 days had elapsed and the Government could not demonstrate how "extraordinary circumstances' had caused the delay).
127
Id. Among the factors that particularly seemed to disturb the court in Henderson was the excessive amount of time it took to complete the art. 32 investigation, the report of investigation, and the pretrial advice. The Government did not show on the record why extraordinary circumstances caused them to take extra time to complete these processing tasks.
128 see,
e.g., United States v. Cole, 3 M.J. 220 (C.M.A. 1977) (no violation of Burton despite 100 days of pretrial confinement; Government was able to
g use chronology to show how it needed more than the normal time to process accused's case for trial). See alsoUnited States v. Miller, 12 M.J. 836
(A.C.M.R. 1982) (Government demonstrated extraordinary circumstances by showing foreign situs, victim's nationality, accused's nonduty status, Korean
assumption of jurisdiction, and reversal of Korean conviction).
129 United States v. Henderson, 1 M.J. 421 (C.M.A. 1976) (Government must show specific problems such as investigation by foreign police, difficulties in
obtaining foreign witnesses, travel problems, or contested jurisdictional issues). See also United States v. Stevenson, 47 C.M.R. 495 (C.M.A. 1973);
United States v. Young, 50 C.M.R. 490 (A.C.M.R. 1975).

130 United States v. Young, 50 C.M.R. 490 (A.C.M.R. 1975); United States v. Eaton, 49 C.M.R. 426 (A.C.M.R. 1974).
131 See, e.g.,United States v. Cole, 3 M.J. 220 (C.M.A. 1977); United States v. Henderson, 1 M.J. 421 (C.M.A. 1976). See also United States v. Rowel,
50 C.M.R. 752 (A.C.M.R. 1975) (extraordinary circumstances due to complexity of case: 6 days to transfer accused across international border, 8-day field

exercise, and 18 days to complete art. 32 investigation due to uncooperative .key Government witness).

132 United States v. Cole, 3 M.J. 220 (C.M.A. 1977); United States v. Douglas, 2 M.J. 1091 (A.C.M.R. 1977).
133 United States v. Perry, 2 M.J. 113 (C.M.A. 1977) (55 days to conclude art. 32 investigation with minimal involvement with self-defense).

134 United States v. Herron, 4 M.J. 30 (C.M.A. 1977).
133 2 M.J. 985 (A.C.M.R. 1976).See also United States v. Cole, 3 M.J. 220 (C.M.A. 1977).
136 United States v. Johnson, 1 M.J. 101 (C.M.A. 1975) (not an extraordinary circumstance when second offense was not complex and record did not

indicate accused would have been tried within 90 days); United States v. First, 2 M.J. 1266 (A.C.M.R. 1976) (no extraordinary circumstances when

accused had demanded speedy trial before committing second offense, intervening offense was not complex, and significant delay had already occurred
before the intervening offense).
137 14 M.J. 186 (C.M.A. 1982).

138 Id. at 187.See also United States v. Huddleston, 50 C.M.R. 99 (A.C.M.R. 1975) (extraordinary circumstances shown when Government could have
tried the accused within 90 days absent the delay caused by additional charges).
132 United States v. Ward, 1 M.J. 21 (C.M.A. 1975).
140 R.C.M. 307(c)(4) and analysis.
141 See United States v. Dun, 21 M.J. 576 (A.C.M.R. 1985) (additional charges found not to justify trial delay; R.C.M. 707(d) construed).
142 United States v. Marshall, 47 C.M.R. 409 (C.M.A. 1973).
143 United States v. Johnson, 48 C.M.R. 599 (C.M.A. 1974) (Government not responsible for repeatedunexcused absences of witness).

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sabotage of an important operational unit. 144 The Government's good faith efforts to obtain individual counsel belatedly requested by the accused may also be an extraordinary circumstance justifying delay. 145 Mere docket problems, however, do not excuse delay, nor do normal incidents of military practice. 146 Shortages of personnel; illness, injury, or absence of the convening authority, the staff judge advocate or deputy staff judge advocate; and backlogs resulting from shortage of personnel, inexperienced personnel, and heavy caseload of the office, defense counsel, or military judge do not constitute extraordinary circumstances justifying delay under Burton. 147 The failure of a Government witness to procure a passport to go to Germany to testify is not an extraordinary circumstance because this matter is a routine prosecution responsibility. 148 The Government's desire to complete the trial of another accused for the same murder with which the accused was charged and then use the accomplice's testimony against the accused was held to justify a 150-day delay in United States v. Johnson. 149
c. The demand rule. The Court of Military Appeals also created a second speedy trial rule concerning soldiers in pretrial confinement in United States v. Burton, the "demand rule." 15° When a soldier in pretrial confinement requests speedy disposition of the charges, the Government must respond to the request and either proceed immediately or show adequate cause for any further delay. A failure to respond to a request for a prompt trial or to order a prompt trial may justify dismissal of the charges. A written response may not be necessary. For example, a Government"response" of immediately holding an article 39(a) session or immediately appointing an article 32 investigating officer may be adequate. 151
The Burton demand rule, however, was eliminated by the Court of Military Appeals in United States v. McCallis­ter. 152 The court held that "the part of Burton which sets out a distinct right to a speedy trial based simply on an accused's demand therefor is overruled, prospectively." 153
15-6. R.C.M. 707: The 1984 Manual speedy trial standards
a. In general. The 1984 Manual for Courts-Martial adopted in R.C.M. 707 new speedy trial standards 154 for all courts-martial regardless of the level of court. 155 This was further modified with Change 5 in 1991. 156 The accused must be brought to trial within 120 days after preferral of charges, or the imposition of restraint, or entry on active duty under R.C.M. 204, whichever is earlier. 157
144 Id.
145 United States v. Rivera, 49 C.M.R. 259 (A.C.M.R. 1974), rev'd on other grounds, 1 M.J. 107 (1975).
' 45 United States v. Wolzok, 1 M.J. 125 (C.M.A. 1975). But see United States v. Talavera, 8 M.J. 14 (C.M.A. 1979) (convoluted opinion in which the Court

of Military Appeals excused docket delays from Government accountability and completely muddied the distinction between exclusions and extraordinary
circumstances).
147 United States v. Pybum, 48 C.M.R. 795 (C.M.A. 1974) (heavy caseload); United States v. Holmes, 48 C.M.R. 316 (C.M.A. 1974) (personnel
shortages); United States v. Stevenson, 47 C.M.R. 495 (C.M.A. 1973) (personnel shortages and inexperienced personnel); United States v. Marshall, 47

C.M.R. 409 (C.M.A. 1973) (illness, absence, or injury of convening authority, staff judge advocate, or deputy); United States v. Eaton, 49 C.M.R. 426

(A.C.M.R. 1974) (heavy caseload); United States v. O'Neal, 48 C.M.R. 89 (A.C.M.R. 1973) (backlogs due to personnel shortages); United States v.
Sawyer, 47 C.M.R. 857 (N.C.M.R. 1973) (heavy caseload).
148 United States v. Dinkins, 1 M.J. 185 (C.M.A. 1975).
145 3 M.J. 143 (C.M.A. 1977). A joint trial is not per se an extraordinary circumstance, however. United States v. Johnson, 2 M.J. 827 (A.C.M.R. 1976)

(Government must prove actual necessity for a joint trial for the delay to be an extraordinary circumstance).
150 44 C.M.R. 166 (C.M.A. 1971). The Burton demand rule is a separate rule, not dependent on the elapsing of more than 90 days of confinement. United
States v. Johnson, 1 M.J. 101 (C.M.A. 1975).

151 United States v. Williams, 12 M.J. 894 (A.C.M.R. 1982); United States v. Onstad, 4 M.J. 661 (A.C.M.R. 1977). Although some cases had held that
immediately releasing the accused from pretrial confinement was a sufficient response, see, e.g., United States v. Mock, 49 C.M.R. 160 (A.C.M.R. 1974), the Court of Military Appeals found in United States v. Rowsey, 14 M.J. 151 (C.M.A. 1982), that merely releasing the accused from confinement was not a sufficient step, particularly when the accused had already spent 85 days in confinement, it took the Government 45 days from the demand to bring the accused to trial, and the offenses were uncomplicated.
152 27 M.J. 138 (C.M.A. 1988).
153 Id. at 141.
154 See Wittmayer,Rule for Courts-Martial 707: The 1984 Manual for Courts-Martial Speedy Trial Rule, 116 Mil. L. Rev. 221 (1987).
' 55 R.C.M. 707(a). This facet of the rule immediately distinguishes it from Burton, which applies only to accused in confinement
156 R.C.M. 707 (C5, 15 Nov. 1991).
152 The ABA Standards for Speedy Trial set no specific time limits. ABA Standards, Speedy Trial (1978). The Federal Speedy Trial Act contains a basic

period of 100 days from arrest or summons until trial. 18 U.S.C. § 3161 (1982) The drafters of the 1984 Manual chose a 120-day period as a 'reasonable outside limitlaking into account the variety of locations and conditions for courts-martial. R.C.M. 707(a) analysis. They relied on experience under Burton with a set time limit and considered the flexibility afforded in excluding time periods under R.C.M. 707(c) to arrive at the 120-day figure. Change 5 to
R.C.M. 707 applied to cases arraigned on or atter 6 July 1991. The original R.C.M. 707 applied to cases in which notice of preferral or imposition of restraint occurred on or atter 1 Aug. 1984. United States v. Leonard, 21. M.J. 67 (C.M.A. 1985).
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The drafters state that allowing 120 days to get to trial is not an onerous standard, and that should be true for most cases, particularly when the 120 days is counted from preferral until the that date. Problems may occur when the initial date is from "restraint" rather than from preferral. Restriction, arrest, and pretrial confinement under R.C.M. 304 start the speedy trial clock. 158 Commanders must be aware of the rule and trial counsel must keep informed of any restraint imposed.'"
The 120-day period includes the day of trial but does not include the initial date of restraint or preferra1. 16° The clock stops running when the accused is arraigned.
b.
Administrative restraint. Administrative restraint is not a type of restraint which triggers the running of the speedy trial clock under R.C.M. 707. R.C.M. 304(h) defines "administrative restraint" as restraint "imposed for operational or other military purposes independent of military justice, including administrative hold or medical reasons." Restraint is"administrative" if the commander's "primary purpose" in imposing the restraint is operational, administrative, or medical. 161 If, instead, the commander's "primary purpose" for imposing restraint relates to an upcoming courts-martial the restraint will trigger the 120-day clock of R.C.M. 707.

c.
Restarting the clock at zero. R.C.M. 707(b)(3) gives the Government a possible escape valve for the situation when pretrial restraint starts the 120-day period, as well as for a case in which charges are dismissed 162 and then

158 "Conditions on liberty,"the least restrictive form of pretrial restraint, originally also triggered R.C.M. 707. In a change effective 1 Mar. 1986, conditions
on liberty imposed after 1 Mar. do not trigger the rules of R.C.M. 707. Counsel must remain alert to "conditions on liberty', however, as a court might
construe the "conditions"as "restriction." allotted States v. Smith. 20 M.J. 528 (A.C.M.R. 1985)petition denied, 21 M.J. 169 (C.M.A. 1985) (factors
rendering "restriction -"tantamount to confinement discussed).
Restraint by civilian authorities does not start the speedy trial period until the soldier is held at the Army's request. United States v. McCallister, 24 M.J. 881 (A.C.M.R. 1987) (upon apprehension by civilian authorities 'the government's accountability ... commenced when (McCallisterl ... was held in a civilian jail at the Army's request), aff'd on other grounds, 27 M.J. 138 (C.M.A. 1988). See also United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986),petition denied, 22 M.J. 242 (C.M.A. 1986) (when accused is initially apprehended and confined by civilian authorities on a civilian charge, military accountability under R.C.M. 707 does not begin until after notice to the military of the accused's availability and a reasonable time to arrange for transportation). United States v. Bragg, 30 M.J. 1147 (A.F.C.M.R. 1990), petition denied, 32 M.J. 313 (C.M.A. 1991). Time accused spent in civilian confinement as a result of civil offenses is excluded from Government accountability as delay "resulting from the absence or unavailability of the accused," even though accused was apprehended and confined on both civilian and military charges. Factors: (1) civilians were not acting at behest of the Air Force when they denied bail; (2) accused was not available for military prosecution while he remained in civilian jail; and (3) military authorities proceeded diligently once they were able to process the court-martial.
An involuntary extension of active duty has been held not to be restraint within the meaning of R.C.M. 707. United States v. Brunton, 24 M.J. 566
(N.M.C.M.R. 1987). 159 A question not addressed in R.C.M. 707 is the effect of restraint imposed improperly. R.C.M. 304 states that any commissioned officer may impose restraint on any enlisted soldier. It is unclear what the law is when the first sergeant orders a soldier involved in a fracas at the Enlisted Club to remain in the company area for some period. The Government might argue that the first sergeant's restraint was not proper because he or she had no legal
authority to restrict and thus the soldier was never restrained in a manner to trigger the speedy trial rule. Judges may not be sympathetic to that argument, however, particularly if the accused abided by the terms of therestriction."
189 R.C.M. 707(b)(1). 161 United States v. Bradford, 23 M.J. 181 (C.M.A. 1987) (denial of sailors port liberty while sailor a suspect of offense found to be 'administrative restraint under R.C.M. 304(h) which does not start the speedy trial clock; trial judge used an "erroneous legal premise" in finding R.C.M. 707 triggered when military justice purposes "in some measure" motivated the restraint; "[A]dministrative restriction under R.C.M. 304(h) must not become a subter­fuge.... However, we believe the test is ... the primary purpose...."; "where the evidence supports a conclusion that the primary purpose of the command ... is related to an upcoming court-martial, R.C.M. 707 applies'). Although the Court of Military Appeals adopted a "primary purpose" test, it is dangerous for the Government to cell the restraint -administrative" whenever the soldier under restraint is a suspect, or is facing charges. A court may find the restraint was for military justice purposes and the speedy trial rule was triggered. United States v. Wilkes, 27 M.J. 571 (N.M.C.M.R. 1988) (restraint prior to trial held to start speedy trial clock despite commander's label of administrative restraint; court conducts its own factual analysis to determine primary purpose). See also United States v. Johnson, 24 M.J. 796 (A.C.M.R. 1987) (commanders cancellation of leave while Johnson was under police investigation, order not to leave Frankfurt area without permission—which was never denied—and order not to return to former place of duty as CID documents examiner were not restraint which started the speedy trial clock under R.C.M. 707 citing R.C.M. 304(h); conditions on liberty triggered R.C.M. 707 at the time); in United States v. Orback, 21 M.J. 610 (A.F.C.M.R. 1985). 'administrative freeze"while under criminal investigation which required coordination of leave, transfer, or discharge with the investigating authority (Air Force Office of Special Investigation) was not 'restraint" requiring application of R.C.M. 707.
The primary purpose test was not applied, but restraint was nonetheless found to be administrative in the following cases: United States v. Facey, 26
M.J. 421 (C.M.A. 1981) (restriction to 'local area" which encompassed a 100-mile radius of Edwards Air Force Base was not "specified limits" that constituted restriction in lieu of arrest); United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988) (denial of off-post pass that gave accused free access to entire installation was at most a condition on liberty that had no effect on the speedy trial clock; lack of pass privileges will in the normal case, have no impact on rules relating to speedy trial); but see United States v. Camacho, 30 M.J. 644 (N.M.C.M.R. 1990) (restriction to limits of base triggered 120-day rule; no analysis provided); United States v. Miller, 26 M.J. 959 (A.C.M.R. 1988) (restriction to hospital following suicide attempt was for medical reasons and, therefore, qualified as administrative restraint). United States v. Callinan, 32 M.J. 701 (A.F.C.M.R. 1991). (Order to remain away from victim and victim's husband were "common sense preventive measures," not legally significant restriction.")
162 The Court of Military Appeals held in United States v. Britton, 26 M.J. 24 (C.M.A. 1988) that restart provisions did not apply when the same charges were withdrawn and repreferred on the same day. Since then the Courts of Military Review have further explained the steps that must be taken to"dismiss" charges. United States v. Hutchinson, 28 M.J.
1113 (N.M.C.M.R. 1989) (Speedy trial dock continued to run when convening authority 'swithdrew -preferred but unreferred charges, but never dismissed the charges and essentially the same charges were later preferred. 'The only way charges can be 'unpreferred'is for the convening authority to dismiss them: Here there was "an attempt to create a 'limbo' status until such time as the prosecution was prepared to present its case-in-chief.' Factors: (1) executive officer or legal officer, not convening authority, made decision to withdraw; (2) all witnesses testified to withdrawal, not dismissal; (3) withdrawal letter was never produced; and (4) specifications were not lined out.); United States v. Loren, 30 M.J. 619 (N.M.C.M.R. 1990) (Mucthison distinguished.
Convening authority dismissed charges and stopped speedy trial clock despite "inartful use of the term 'withdrawal' and failure to line out charges because he fully intended to dismiss the charges. Factors establishing intent (1) restraint removed and sailor returned to full duty; (2) sailor was informed by "withdrawal" letter that charges were dropped; (3) all personnel within the command were informed that accused was not on legal hold or under disciplinary restraint; (4) appellant suffered no prejudice; and (5) trial judge found convening authority acted in good faith.); United States v. Mickla, 29
M.J. 749 A.F.C.KR. 1989) (Dismissal contemplates "'that the accused no longer faces charges' and is 'returned to full-time duty with full rights as accorded to all other servicemembers.'" (quoting Britton). Charges are properly dismissed under R.C.M. 401 when they fail to state an offense, are unsupported by available evidence, or other sound reasons exist. Here convening authority always intended court-martial, newly-preferred charges were essentially the same as those purportedly dismissed, airman never returned to normal duties, and heavy caseload and manpower shortage were reasons
fotdiamissing," then reinitiating charges.)
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reinstated or when a mistrial is granted. The rule states that, if the accused is released from pretrial restraint for a significant period, the accountable time will nm only from the earlier of reinstitution of restraint or the preferral of charges.I 63 This allows the Government to reset the speedy trial clock to the date of preferral even though charges were preferred prior to release from restraint.I 64 The Government may restart the speedy trial clock at zero by lifting restraint for a "significant period" I65 before charges are preferred. The rule does not answer questions such as how long the accused may be initially restrained before the Government will be precluded from taking advantage of this provision or how long the Government has to lift the restraint to make it a"significant period." The rule has been interpreted to preclude the Government from holding a soldier under restraint in excess of 120 days and then attempting to take advantage of the restart provisions by releasing the accused for a "significant period."I 66
d.
Multiple charges. For multiple or additional charges under R.C.M. 707(bX2) a separate speedy trial period runs for each specification from the preferral of the specification or from restraint imposed on the basis of the offense. Different rules apply when an accused is placed in confinement rather than other forms of restraint.I 67

e.
Exclusions from the Government's accountable time. The 120-day period, like the period of time under the Burton 90-day rule, means 120 days of Government accountable time. Change 5 consolidated the extensive list of exclusions under the previous R.C.M. 707(c) into a single procedural paragraph.I 68 The new procedure requires all pretrial delays to be approved by an appropriate authority before the time period can be excluded from the 120-day speedy trial clock. The amendment was intended to follow ABA guidance and place responsibility on the military judge, convening authorities, or Article 32 investigating officers to grant reasonable pretrial delays.I 69 It was also created to ensure speedy trial issues are fully developed before the conclusion of the tria1. 179 Prior to referral, all requests for pretrial delay, together with supporting documents will be submitted to the convening authority for resolution. The discussion to the rule indicates that the decyision to grant or deny a delay should be based"on the facts and circumstances then and there existing." 17I Delays should not be granted ex parte, and decisions granting delays should be reduced to writing with supporting reasons and the dates covering the delay.I 72 The discussion further provides that the convening authority may delegate authority to grant pretrial delays to an article 32 investigating officer.I 73 After referral, all requests for pretrial delay should be submitted to the military. judge. 174

Several issues remain unanswered following publication of Change 5. There are normally several convening authorities during the processing of court-martial charges. Which convening authority has authority to approve pretrial delays under R.C.M. 707(c), and when? Also, does a summary court-martial convening authority lose the ability to grant pretrial delays once charges have been forwarded to the special court-martial convening authority? The analysis provides that approval authorities are required, "to make an independent determination as to whether there is in fact good cause (emphasis added) for a pretrial delay and to grant such delays for only so long as is necessary under the
163 R.C.M.707(b)(3)(B).
164 R.C.M. 707(b)(3)(B) (C5, 15 Nov. 1991) (The analysis provides, "Where an accused is released from pretrial restraint for a significant period, he will
be treated the same as an accused who was not restrained.").
166 Cases construing a 'significant period" of release for R.C.M. 707(b)(2): United States v. Hulsey, 21 M.J 717 (A.C.M.R. 1985) (5-day release from pretrial restraint held a "significant period" and not a"subterfuge designed to circumvent R.C.M. 707," clock restarted with reinstitution of restraint), petitiondenied, 22 M.J. 353 (C.M.A. 1986); United States v. Gray, 21 M.J. 1020 (N.M.C.M.R. 1986) (clock restarted with notice of preferral after "significant period" of release of .47 days), aff'd, 26 M.J. 16 (C.M.A. 1988) (three separate opinions; Cox (concurring in the result)—release from confinement lor 'a significant period" resets the clock at zero and it is restarted by notice of preferral; Everett (concurring in the result)—the clock was reset at zero, and trial timely whether counted from preferral or notice of preferral; Sullivan—"charges are pending ... when charges are preferred' and "only pretrial restraint when charges are pending is sufficient to start the clock under R.C.M. 707(a)." United States v. Miller, 26 M.J. 959 (A.C.M.R. 1988) petition denied, 28
M.J. 164 (C.M.A. 1989) (5-day period of "release' while accused was restricted to hospital held to be 'significant period" that allowed speedy trial clock to
restart); United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988),petition denied 28 M.J. 230 (C.M.A. 1989) ("release" of 50 days when accused had pass
privileges pulled that prohibited him from leaving installation held to be xesignificant period" that allowed the speedy trial clock to restart).
166 Andrews v. Heupet, 29 M.J. 743 (A.F.C.M.Ft. 1989) (The restart provisions of 707(b)(2) apply only when a soldier is released before the 120 day rule
is violated. The 120 day time limit of 707(a)(2) protects a soldier even though no charges are preferred against him or her during that time. Charges
dismissed where airman held in pretrial restraint for 212 days with no charges preferred, then released for a significant period before charges were

preferred.)
167 United States v. Boden, 21 M.J. 916 (A.C.M.R. 1986) (94 days of Government accountable pretrial confinement; trial judge dismissed two charges
preferred the day after confinement was imposed, but not a charge preferred a month and a half later; held: remaining charge dismissed; "government
accountability ... begins on the data the government has in its possession substantial information on which to base preferral of that charge." Laboratory
results were unnecessary for preferral and information known by the CID is information known to the "government"). In United States v. Robinson, 26 M.J.
954 (A.C.M.R. 1988),aff'd, 28 M.J. 481 (C.M.A. 1989), the Army Court created an exception to the Boden rule for cases involving pretrial restriction in lieu
of arrest. In those situations the 120-day clock runs from the time restraint was imposed "in connection with' the particular charge; the clock does not
begin when the Government has 'substantial information" about a charge unless restriction is imposed in connection with the charge. Pretrial restraint
imposed in connection with indecent assault did not start speedy trial clock for drug charges even though Government had substantial information about
the drug charges for more than 120 days. Court distinguishes confinement from other forms of restraint. The Court of Military Appeals agreed. ("We hold
that, in order to commence the speedy trial clock, the imposition of restraint ... must be 'in connection with' the specification being challenged."Furthe-
rmore, R.C.M. 707(a)(2) sometimes permits separate speedy trial clocks even though several charges were preferred at the same time.) 'See United

States v. Honican, 27 M.J. 590 (A.C.M.R. 1988) (summarizes speedy trial rules for multiple specifications when confinement or other restraint is imposed).
168 R.C.M. 77(c)(1) (C5, 15 Nov. 1991).
169 R.C.M. 707(c) analysis (C5, 15 Nov. 1991).
170 R.C.M. 707(c)(1) analysis and discussion (C5, 15 Nov. 1991).
171 R.C.M. 707(c)(1) discussion (C5, 15 Nov. 1991).

172 Id. Id.
174 R.C.M. 707(c)(1).
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circumstances." Prior exclusions for "good cause" under R.C.M. 707(cX9) required a causal connection between the
event and the delay sought to be excluded. 175 Should practitioners interpret the term "good cause" under R.C.M. 707(c)
(C5, 15 Nov. 1991) similarly? Exclusion approval authorities are provided some guidance, however, concerning
reasons to grant a delay. The discussion lists many examples as a guide to their independent determination. 176 They are
essentially the same exclusions previously listed in R.C.M. 707(c). Decisions interpreting the previous extensive list of
exclusions under R.C.M. 707(c) will continue to provide valuable precedent. They will be addressed later.
Approval authorities will have their decisions reviewed on two separate grounds. Their decisions will be "subject to review for both abuse of discretion and the reasonableness of the periody of delay granted. 177 It is a real possibility that a decision to grant a pretrial delay will not be an abuse of discretion, however, the period of delay could be determined unreasonable. 178
The Government has to bring the accused to trial within 120 days, but may exclude certain periods from Govern­ment accountability. Unlike the Burton 90-day rule, there is not a presumption of a speedy trial violation that the Government can rebut; once the Government exceeds 120 days, after subtractions of exclusions, the accused's right to a speedy trial has been violated and the charges must be dismissed. 179
f Exclusions from the Government's accountable time under the original R.C.M. 707(c).
(1)
Delay from other proceedings. Periods of delay from other proceedings were excluded.I 80 These "other proceedings" included any examination or hearing into the mental capacity or responsibility of the accused, 181 pretrial motion sessions, 182 Government appeals under R.C.M. 908, 183 and petitions for extraordinary relief (including Govern­ment petitions). 184

(2)
Delay from the unavailability of a judge from extraordinary circumstances. Delays caused by the unavailability of the military judge due to exceptional circumstances were excluded. 185 This probably did not include the normal problems of a crowded docket-- that time was still charged to the Government. If the judge went on emergency leave 2 days before trial was to begin, however, the Government could probably exclude the time until the judge returned or a new judge could hear the case.

175 United States v. Longhofer, 29 M.J. 22, 27-29 (C.M.A. 1989).
176 R.C.M. 707(c)(1) discussion (C5, 15 Nov. 1991) (The discussion provides: "Reasons to grant a delay might, for example, include the need for: time to
enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the
Reserve component to active duty for disciplinary action; time to complete other proceedings related to the case.; time requested by the defense; time to
secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified
information or time to declassify evidence; or additional time for other good cause.')
177 R.C.M. 707(c)(1) analysis (C5, 15 Nov. 1991).
178 United States v. McKnight, 30 M.J. 205 (C.M.A. 1990), cert. denied, 111 S.Ct. 350 (1990) (Defense counsel's letter requesting postponement of en

Art. 32 hearing until a date between 6-14 Aug. relieved the Government of speedy trial accountability for the delay until 11 Aug. The delay until several
weeks later, however, was unreasonable, and therefore attributable to the Government.
179 R.C.M. 707(d) (C5, 15 Nov. 1991) ("failure to comply with the right to a speedy trial will result in dismissal of the affected charges.")
180 R.C.M. 707(c) (C5, 15 Nov. 1991). The exclusions were taken generally from the ABA Standards, with modifications to conform to military practice. Id.

at analysis.
181 R.C.M. 707(c)(1)(A) excluded delay resulting from"Any examination into the mental capacity or responsibility of the accused." See United States v.
Demmer, 24 M.J. 731 (A.C.M.R. 1987) (72 days excluded under (c)(1)(A) for psychiatric evaluation; "brief periods of inactivity in an otherwise active
prosecution are generally not considered unreasonable or oppressive"); United States v. Palumbo, 24 M.J. 512 (A.F.C.M.R. 1987) (45 days excluded
under R.C.M. 707(c)(1)(A) for command psychiatric examination; implied that the period need not be reasonable); United States v. Pettaway, 24 M.J. 589

(N.M.C.M.R. 1987) (45 days excluded under R.C.M. 707(c)(1)(A) for command psychiatric examination; implied that the period need not be reasonable); United States v. Jones, 21 M.J. 819 (N.M.C.M.R. 1985) (exclusion (c)(1)(A) is not limited to mental examinations under R.C.M. 706); United States v. Hirsch, 26 M.J. 800 (A.C.M.R.) petition denied, 27 M.J. 404 (C.M.A. 1988) (102-day delay for psychiatric examination reasonable because of case complexity); United States v. Mahoney, 28 M.J. 865 (A.F.C.M.R. 1989) (Standard for reviewing mental examination timeliness is not whether examination could have been done sooner, but whether the time it did take was reasonable. Sixty-eight day period to accomplish mental examination was reasonable despite psychiatrist's 11-day leave, failure to examine accused on consecutive days, and decision to convene a three member sanity board rather than a
one person board.) 182 R.C.M. 707((c)(1)(C) excluded delay resulting from "any session on pretrial motions." SeeUnited States v. Pettaway, 24 M.J. 589 (N.M.C.M.R. 1987)petition denied, 25 M.J. 483 (C.M.A. 1987). In Pettaway 12 days were excluded under (c)(1)(C) for time spent in between actual in-court sessions on motion practice: 707(c)(1)(C) excludes all periods spent in motion practice without regard to the number of days actually spent in court or the reasonableness of the delay,' citing Henderson v. United States, 106 S. Ct. 1877 (1986) (exclusion of delay under a similar provision of the Federal Speedy Trial Act, 18 U.S.C. § 3161 et seq. is "automatic" and need not be'reasonable.") The exclusion, however, is for "fairly periods of delay resulting from other proceedings in the case including ... (C) Any session on pretrial motions. See also United States v. McCollister. 24 M.J. 881 (A.C.M.R. 1987) (two pretrial motion sessions, the second on the day of trial, presented opportunity to exclude time in between sessions, but court deducted only the day of the first session), eft/ on other grounds, 27 M.J. 138 (C.M.A. 1988). The position taken or implied inPettaway andPalumbo, supra that the period need not be reasonable seems incorrect. Surely there is an outer limit of reasonableness. Also, each exclusion under R.C.M. 707(c) included the phrase 'delay resulting from," or similar language. If a period of time is not reasonable for the circumstance which authorizes an exclusion, for instance, taking an unreasonably long time to complete a psychiatric evaluation of an
accused, then the delay does not result from the circumstance which authorizes the exclusion, it results from other circumstances, possibly from
unreasonable Government delay.
183 Under the Military Justice Act of 1983, as implemented in the 1984 Manual, the Government may appeal certain rulings of the military Judge. R.C.M.

908. Whether the time excluded under 707(c)(1)(D) includes time relating to appeals beyond the initial ruling by the Court of Military Review was left
unresolved in United States v. Solorio, 29 M.J. 510 (C.G.C.M.R. 1990). Under R.C.M. 707(b)(3)(C) (C5, 15 Nov. 1991) Government appeal to the Court of
Military Review, the Court of Military Appeals, or to the Supreme Court starts a new 120-day period on the date the parties are notified of the final

appellate decision.
184 United States v. Ramsey, 28 M.J. 370 (C.M.A. 1989) (time for Government petition for extraordinary relief and Government appeal not chargeable to
Government even though accused remained in pretrial confinement and Government appeal denied).
195 R.C.M. 707(c)(2).

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(3) Delay at the request or with the consent of the defense. Delays requested by or consented to by the defense were
excluded from Government accountability under R.C.M. 707(c)(3). What constituted a defense request for or consent to
delay, however, proved to be an elusive concept and the subject of much of the litigation concerning the original

R.C.M. 707 speedy trial rule. In United States v. Carlisle 186 , a defense counsel's suggestion that trial commence
following a co-counsel's return from leave on the 136th day following notice of preferral was held not to be a defense
request for delay. Likewise in United States v. Burris,'" there was no defense requested delay when defense counsel
returned the Government's "Docket Notification" after lining out the words "delay until" and requesting"a projected
trial date of 25 March 85," the 131st day from initial restraint. Furthermore, defense counsel did not automatically
request or consent to delay simply by failing to respond immediately to Government counsel's notification that the
Government is ready to proceed 188 or by entering into pretrial agreement negotiations. 189 The Government's decision
to delay scheduling a trial until after the defense counsel returns from temporary duty was also not defense delay, even
though the defense counsel knew about the Government's action.'" On the other hand, when defense counsel asked
that a new convening authority assume jurisdiction over the case, he also"requested" a reasonable delay to allow the

new convening authority to act on the case. 191
Defense delays for article 32 investigations proved to be equally elusive. Thus, when a defense counsel requested that Government witnesses be produced for cross-examination at the hearing and the Government later produced those witnesses, the defense was not responsible for the delay. 192 Similarly, a defense request to abate the article 32 proceedings and depose unavailable witnesses was held not to be a defense requested delay)" An article 32 investigating officer's decision to delay the hearing until a time when he thought the civilian defense counsel would be available did not make the counsel responsible for the delay, despite the investigating officer's conversation with the defense counsel's secretary)" When the Government notifies the defense that it is ready to proceed with an article 32 investigation and asks the defense for a convenient date to meet to set a hearing date, the Government is responsible for the time between its notification and the defense-suggested meeting date. 195 When the defense does request a delay in the article 32 investigation, however, the Government may insist on some flexibility when it reschedules the hearing. 196
Because of these and other problems, 197 the Court of Military Appeals announced its preference for formal
188 25 M.J. 426 (C.M.A. 1988).See also United States v. McCallister, 24 M.J. 881 (A.C.M.R. 1987),aff'd, 27 M.J. 138 (C.M.A. 1988) (delay in scheduling
art. 32 investigation for defense counsel's leave was not defense delay); United States v. Kohl, 26 M.J. 919 (N.M.C.M.R. 1988) (applies Carlisle to pretrial
confinement and 90-day rule of R.C.M. 707(d); defense counsel and trial counsel agreed to trial on day 93; not defense delay).
187 21 M.J. 140 (C.M.A. 1985).

188 United States v. Butterbaugh, 22 M.J. 759 (N.M.C.M.R. 1986), affd, 25 M.J. 159 (C.M.A. 1987) ("[Djelense counsel's failure to respond immediately to
Government counsel's notification" that the Government is ready to proceed is not delay "at the request or with the consent of the defense."); but cf.
United States v. King, 30 M.J. 59 (C.M.A. 1990) ("From March 1, when the Government submitted the docket notice, to March 8, the date the defense
agreed to, also constituted a 'period Of delay ... with the consenbf the defense.'")

189 United States v. Harris, 20 MJ 795 (N.M.C.M.R. 1985) (122 days from notice of preferral to trial; Government appeal of dismissal denied; initiation of
negotiations by the defense toward a pretrial agreement with no express request for or consent to delay, held not an 'implied' request or consent to delay
under (c)(3); pretrial agreement negotiations, like requests for administrative discharge in lieu of court-martial, are a "'normal incident' of pretrial military
justice"and are not defense delay, absent an "eleventh hoursubmission designed to create an issue of lack of speedy trial).

199 United States v. Wactor, 30 M.J. 821 (A.C.M.R. 1990) (Government's decision to docket case for date after defense counsel returned from temporary
duty in Honduras rather than at earlier date when defense counsel was TDY did not render period of delay attributable to the defense, even though
defense counsel was aware of Government's action and did not object. "Defense acquiescence (to delay) does not relieve the government of its burden.
The record must at least show that the defense expressly agreed to the delay.").

191 United States v. King, 30 M.J. 59 (C.M.A. 1990) ("When the defense requested that the Commander, Fort Huachuca recuse himself and that a new
convening authority assume jurisdiction, the ensuing days occasioned by this request—subject to reasonableness of duration—constituted a 'period of
delay resulting from a delay in a proceeding or a continuance in the court-martial granted at the request or with the consent of the defense.' (citations

omitted) Mhe right to speedy trial is a shield, not a sword. (citations omitted) An accused cannot be responsible for or agreeable to delay and then turn

around and demand dismissal for the same delay. Like most rights, speedy trial can be waived; it was so here.")
192 United States v. Cook, 27 M.J. 212 (C.M.A. 1988);see also United States v. Brodin, 25 M.J. 580 (A.C.M.R. 1987) (it was not delay 'at the request or
with the consent of the defense" when defense counsel objected to the art. 32 investigating officer considering an unauthenticated statement and the
investigating officer delayed continuing the investigation and attempted to obtain the testimony; charges dismissed).

193 United States v. Raichle, 28 M.J. 876 (A.F.C.M.R. 1989) (Time required to conduct defense requested depositions of witnesses found unavailable for
an art. 32 investigation was chargeable to the Government. Defense counsel's request to abate the proceedings until depositions were taken found to be
a statement that the proceedings were inadequate and should be ended unless witnesses were deposed, not a request for consent or delay. Generally all
art. 32 time is chargeable to the Government unless it can establish an exception.).

194 United States v. Haye, 25 M.J. 849 (A.F.C.M.R. 1988) rev'd on other grounds, 30 M.J. 213 (C.M.A. 1989) (art. 32 officer's phone conversation with
civilian attorney's secretary concerning when attorney would be available held not defense-requested delay).
198 United States v. White, 22 M.J. 631 (N.M.C.M.R. 1986) (per curiam) (189 days from notice of preferral to trial; defense appeal denied; Government is accountable for the time from the day when it contacts the defense, says it is ready to proceed with the art. 32 investigation,
and asks the defense for convenient date to meet to set a date for the investigation, until the day the defense agrees to meet; but it is defense delay under (c)(3) thereafter when the defense cancels the meeting and new civilian counsel is retained, until a new date to meet is agreed upon).
198 United States v. McKnight, 30 M.J. 205 (C.M.A. 1990) (defense counsel's letter requesting postponement of an art. 32 hearing until a date between 6­
14 Aug. relieved the Government of speedy trial accountability for the delayed until 11 Aug., the day the investigating officer was ready to proceed. 'In our view, the defense is not entitled to ask that a pretrial hearing under Article 32 be delay until a certain date and then insist that the Government proceedon that very day."Although defense counsel has no duty to move a case to trial, "he does have some obligation to cooperate reasonably in rescheduling the proceeding' when the delay was granted for his convenience or needs. The Government may insist on some flexibility in scheduling as a condition for granting a defense request for delay." Ambiguity in the request for delay should not be construed against the Government. "If the defense needed e continuance, it should have been requested on the record and not handled in off-the-record negotiations.").
197 E.g.,United States v. Miniclier, 23 M.J. 843 (A.F.C.M.R. 1987) (neither officer accused's tender of resignation for the good of the service, nor senator's intervention to expedite decision on resignation was delay at the request or with the consent of the defense).
144.
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scheduling procedures. It repeatedly suggested that all requests for defense delay be "in writing or on the record" and that all requests be acted on by the convening authority or article 32 investigating officer prior to referral or by the military judge after referra1. 198 The courts of review reiterated that suggestion.'" Although it preferred a formal record documenting defense delay, the Court of Military Appeals made it clear that the defense could request or consent to delay in a less formal manner. 200
(4)
Delay from defense noncompliance. Delay resulting from "a failure of the defense to provide notice, make a request, or submit any matter in a timely manner" as required by the Manual was excluded from Government accountable time. 2°I

(5)
Delay at the request of the prosecution. Delays in the article 32 investigation or continuances at trial at the request of the Government could be excluded under R.C.M. 707(c)(5). 202 If the delay were requested because of unavailable evidence, despite the Government's due diligence, 203 or to give the trial counsel additional preparation time because of the exceptional circumstances of the case, the Government would not be held accountable for the time 2 04

(6)
Delay resulting from the absence or unavailability of the accused. Delay was excluded from Government accountable time which resulted from the absence or unavailability of the accused. 205 The period of actual absence of the soldier, plus the time reasonably necessary to return the soldier to the appropriate military unit was excluded. 06

The time excluded could also include time when the accused was with his unit, if his unit was deployed at sea without
198 United States v. Carlisle, 25 M.J. 426 (C.M.A. 1988) (United States v. Carlisle, 25 M.J. 426 (C.M.A. 1988) (In our judgment, each day that the
accused is available for trial is chargeable to the Government, unless a delay has been approved by either the convening authority or the military judge,
in writing or on the record... '); United States v. Cook, 27 M.J. 212 (C.M.A. 1988) (defense counsel did not request delay when she asked that the
Government produce its witnesses for cross-examination at the article 32 hearing; Carlisle language reiterated, *each day that an accused is.available for
trial is chargeable to the Government unless a delay has been approved by either the convening authority or the military judge, in writing or on the
record'); United States v. Burris, 21 M.J. 140 (C.M.A. 1985) (136 days from restraint to trial; Government appeal of dismissal denied. The Burris court
observed, "Docketing delays are generally attributable to the Government ... We believe that many of the problems involved in attributing pretrial delays
will be ameliorated if all such requests for delay together with the reasons therefor, were acted upon by the convening authority prior to referral of charges
to a court-martial or by the trial judge after such referral, rather than for them to be the subject of negotiation and agreement between opposing counsel.
This procedural requirement will establish as a matter or record who requested what delay and for what reason' quoting United States v. Schiff, 1 M.J.
251 (C.M.A. 1976)). The Burris court added, if defense counsel elects to negotiate, ex parte, a trial date with a docketing clerk or with the trial judge, he
has an ethical responsibility to insure that the clerk or judge is not misled or inadvertently deceived into setting a date which violates the speedy-trial rule.
There is insufficient evidence in this record to support such a finding here. (Counsel should exercise caution. Clearly defense counsel must not mislead
the court, but it is doubtful the defense has an affirmative obligation to see the Government brings the case to trial within the speedy trial period.]
TheBurris court further observed, "We would not hesitate to hold that a defendant is estopped from claiming he lacked a speedy trial if the delay is
caused by defense misconduct." United States v. Maresca, 28 M.J. 328 (C.M.A. 1989) ('We believe that many of the problems involved in attributing
pretrial delays will be ameliorated if all such requests for delay, together with the reasons therefor. were acted upon by the convening authority prior to
referral of charges to a court-martial, or by the trial judge after such referral, rather than for them to be the subject of negotiation and agreement between
opposing counsel. This procedural requirement will establish as a matter of record who requested what delay and for what reason. ... Although we have
urged that this prospective practice be followed, the services have not chosen to adopt this simple procedural rule' Citing Carlisle.); United States v.
Longhofer, 29 M.J. 22 (C.M.A. 1989) (If the delay is occasioned by a specific request from an accused, in writing or on the record, and such a delay is
granted by either the convening authority, the article 32 investigating officer, or a military judge, the Government shall be relieved of accountability.')
199 See, e.g.,United States v. McCallister, 24 M.J. 881 (A.C.M.R. 1987); United States v. Kohl, 26 M.J. 919 (N.M.C.M.R. 1988); United States v. Givens,
28 M.J. 888 (A.F.C.M.R. 1989) (listing of cases where informal exchanges did not amount to defense delay is given at page 890), reversed and
remanded, 30 M.J. 294 (C.M.A. 1990).

2°3 United States v. Givens, 30 M.J. 294 (C.M.A. 1990) (Cox, J.: R.C.M. 707(c)(3) does not have 'an exclusive requirement that either the convening
authority or the military judge rule, contemporaneously with the event, on delay accountability. The language in United States v. Carlisle. supra, should
likewise be read as precatory and not intended to establish a perse rule of law. However, the vagaries of the instant facts illustrate the need for the
Government to document promptly and effectively any defense delays it seeks to rely on." Case remanded to determine whether defense counsel's
conversation with staff judge advocate was a request for or consent to delay.)

201 R.C.M. 707(c)(4). See United States v. Arnold, 28 M.J. 963 (A.C.M.R. 1989) suggesting that Government make a "preemptive motion for appropriate
relief in order to avoid needless expense and vexation -when defense does not provide a list of witnesses.

202 R.C.M. 707(c)(5).
203 United States v. Byard, 29 M.J. 803 (A.C.M.R. 1989) (opinion on reconsideration) (Exclusion under 707(c)(5)(A) is permitted "only if the Government
has exercised due diligence to obtain the evidence." Government failure to use DOD IG subpoena or deposition subpoena to obtain essential bank
records constituted lack of due diligence. Trial team's ignorance of IG subpoenas, even if honest and reasonable, constituted negligence, not due
diligence. Exclusion under 707(c)(5)(B) requires exceptional circumstances which Government also failed to establish.)

204 See United States v. Longhofer, 29 M.J. 22 (C.M.A. 1989) granting the art. 32 investigating officer the power to grant a Government request for delay,
but making the decisiorr subject to de novo review by the military judge.
2°5 R.C.M. 707(c)(6).

206 United States v. McCallister, 24 M.J. 881 (A.C.M.R. 1987) ("'exclusion (6) ... contemplates the period of actual absence plus the time it takes to return
the accused' ... to the appropriate unit ... which reasonably ... resulted from the accused's absence ... Time should not be excluded which ... results
from the government's failure to exercise due diligence in returning the accused to the appropriate unit.' Three days' travel found reasonable, not 15
days), aff'd on other grounds 27 M.J. 138 (C.M.A. 1988). See also United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986) (accused went AWOL while
charges were pending; Government appeal, trial judge reversed and case remanded, construing exclusion (c)(6), 'We hold that exclusion (6) contemplates
the period of actual absence plus the time it takes to return to the accused to his command, or the command to which reassigned, plus the time it takes
to join or rejoin him to the command and process the original charges back to trial. The latter two factors are subject to the general limitations of
government diligence and undue prejudice to the accused') [The time it takes to process the original charges back to trial should only be excluded to the
extent any delay in the process results from the absence of the accused]; United States v. Turk, 22 M.J. 740 (N.M.C.M.R. 1986) ("We believe that the 24
day period involved in transporting the appellee from the place where he terminated his absence (Mayport, Florida] to hiS unit (ship then in Bahrain] is
properly accountable to him under R.C.M. 707(c)(6). This is so because the commanding officer of his ship was the proper official to make the initial
disposition of appellee's alleged offenses,' citing Lill ,,"This general rule must, of course, be limited to situations where the Government acts reasonably

and without improper purpose"), affd, 24 M.J. 277 (C.M.A. 1987).

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legal services."' Time spent in civilian jail on civilian charges was excluded from the military's speedy trial clock,
even if the accused was apprehended because of both military and civilian charges. 208 Once the civilian charges were
disposed of and the military was notified, the military had a reasonable time to transport the accused to a military
facility. 209

(7)
Reasonable delay for a joint trial. A "reasonable period of delay when the accused is joined for trial with a co­accused as to whom the time for trial has not yet run and there is good cause for not granting a severance" was
excluded from Government accountable time. 210

(8)
Delay in ordering a Reserve member to active duty. In March 1987 changes were made to the Manual for Courts-Martial to implement changes in UCMJ jurisdiction over Reserve component persOnne1. 211 The speedy trial period of R.C.M. 707 begins for Reserve members on the earlier of entry on active duty, preferral of charges, or imposition of restraint. 212 R.C.M. 707(c)(8) provided an exclusion from Government accountable time for a"period of delay, not exceeding 60 days, occasioned in processing and implementing a request ... to order a member of a reserve component to active duty for disciplinary action."

(9)
The causation requirement for exclusions R.C.M. 707(c)(1) through (c)(8). If delay fit into one of the exclusions found in R.C.M. 707(c)(1) through (cX8), "the time [wasj excludable without regard to whether the event proximately caused a delay in the trial itself." 213 The mere happening of events listed in e(1)-(8) did not, however, result in automatic exclusion of all time. The Government could be relieved of accountability, subject to a"reasonableness limitation."214 Thus, if an event fit into exclusion (cX1)-(8), the Government could exclude a reasonable amount of time from its speedy trial accountability whether or not the event caused a delay in trial; any time in excess of a reasonable amount could not be excluded.

(10)
Delay for "good cause." In a residual or catchall exclusion, any "period of delay for good cause, including unusual operational requirements and military exigencies" was excluded from the time counted against the Govertunent. 215 As stated earlier, Change 5 did not clarify whether "good cause" should be interpreted in the same manner under the new amendment.

In United States v. Kuelker, 216 the prosecution was delayed by the need to obtain U.S. Treasury checks allegedly forged by the accused that were in the hands of the Treasury Department. The Government argued that the time to obtain the checks was excludable under R.C.M. 707(cX9), the exclusion for "good cause." The court, however, narrowly construed the exclusion, finding "delay for good cause" "well-defined by the illustrations" provided in
R.C.M. 707(c)(9) of "unusual operational requirements and military exigencies." 21" The court concluded that "good cause" required "an extraordinary situation" rather than the normal difficulties of gathering the prosecution's eviden­ce.218 Finding 157 days of prosecution accountable time from the initial notice of preferral to trial, the court denied the Government's appeal.
In United States v. Harris, 219 the court considered possible exclusions in a 122-day period from notice of preferral to trial. The Government argued that time for negotiation of a pretrial agreement initially proposed by the defense was excludable as delay "at the request or with the consent of the defense" under R.C.M. 707(cX3). The court disagreed, reasoning that plea negotiations, like requests for administrative discharge in lieu of court-martial, were a " 'normal incident' of pretrial military justice" and were not "defense generated delay." 220 The Government also contended that it was delayed for "good cause," R.C.M. 707(c)(9), because the convening authority was deployed aboard ship during
207 United States v. Brown, 30 M.J. 839 (N.M.C.M.R. 1990) (Two months that accused spent on small ship that had no legal counsel were excluded from
Government speedy trial accountability as time reasonably resulting from the accused's absence without leave. Accused returned to military control after
docketed charges were withdrawn and the day before his ship sailed. Accused's ship could not further process the charges until it made a port call where
legal services were available.)

208 United States v. Bragg, 30 M.J. 1147 (A.F.C.M.R. 1990) (Time accused spent in civilian confinement as a result of civil offenses is excluded from
Government accountability as delay "resulting from the absence or unavailability of the accused," even though accused was apprehended and confined on
both civilian and military charges. Factors: (1) civilians were not acting at behest of the Air Force when they denied bail; (2) accused was not available for
military prosecution while he remained in civilian jail; and (3) military authorities proceeded diligently once they were able to process the court-martial.)

209 United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986), petition denied, 22 M.J. 242 (C.M.A. 1986) (Accused was apprehended on civil charges.
granted a signature bond at arraignment, but remained in jail because of "Navy hold' for desertion. Government's speedy trial accountability for
confinement began after Navy was notified that accused was immediately available to military authorities. Government then has reasonable time to
transport accused to military facility.) Accord United States v. Asbury, 28 M.J. 595 (N.M.C.M.R. 1989), petition denied,28 M.J. 356 (C.M.A. 1989).
210 R.C.M. 707(c)(7).

2" See R.C.M. 204.
212 R.C.M. 707(a) (C5. 15 Nov. 1991). As is generally true, conditions on liberty do not start the speedy trial period.
213 United States v. Longhofer, 29 M.J. 22, 27 (C.M.A. 1989). Accord United States v. King, 30 M.J. 59 (C.M.A. 1990) CIA)ppellent contends that certain

of the R.C.M. 707(c) exclusions should not have been charged to the defense because the prosecution was not in a position to proceed at that time. That argument as rejected in United States v. Longhofer.")
214
Id.
215 R.C.M. 707(c)(9); was (c)(8) prior to Mar. 1987 amendments. 216
20 M.J. 715 (N.M.C.M.R. 1985) (per curiam). 217 20 M.J. at 716. The 'good cause' exclusion was originally in R.C.M. 707(c)(8). Amendments to the Manual in Mar. 1987 made it the (c)(9) exclusion.
218 Id.
219
20 M.J. 795 (N.M.C.M.R. 1985). 220 at 797.
Id.
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portions of the plea negotiations. The court rejected this argument as well, finding the deployment not "unusual" or exigent, citing Kuelker. 22I In United States v. Durr, the Army Court of Military Review took a broader view of the
R.C.M. 707(c)(9) exclusion finding that "good cause is a less strict standard than ... extraordinary circumstances" and that a balancing of the speedy trial interests with the ends of justice served by a delay was appropriate. 222 The Navy-Marine Court of Military Review subsequently adopted the Durr approach. 223
(11)
"Good cause" and additional charges. The issue of whether additional charges constitute "good cause" for a delay in trial was raised in several cases. The better view appeared to be that additional charges were not per se good cause for delaying trial on the original charges, but they could be good cause. 224 A balancing test weighing the speedy trial interests against the joinder interest would be applied and the judge would rule on the balance before the delay was taken.225 If the judge ruled good cause for delay was not present, the Government could go ahead with trial on the original charges and then later try the additional charges separately.

(12)
Nexus between the event and delay. Generally the exclusions under R.C.M. 707(c) from Government accounta­ble time included the language"delay resulting from" the event or circumstance which authorized an exclusion. Early decisions of the Courts of Military Review required a nexus between the event which authorized an exclusion and a delay in tria1. 226 In United States v. Longhofer 227 the Court of Military Appeals clarified the causation requirement and limited the "nexus requirement" previously used by the lower courts. In order to exclude time for "good cause" under

R.C.M.
707(c)(9), unlike exclusions under R.C.M. 707(cX1)-(8), there had to be a causal connection between the event and the delay sought to be excluded. 228 "The military judge has to find that the unusual event being relied upon caused a delay in the Government preparation of its case and that it was reasonable for the delay to result. Once the causal connection between the event and the delay is established, the time may be subtracted" 229 from the Government's speedy trial accountability. "The Government need not establish, however, that this delay 'proximately caused' the trial not to take place within the total time period." 23° The court decided it frequently would be impossible to show that unforeseen delays, especially those that occurred early in trial process, actually caused a delay in the trial itself. It was sufficient for the Government to show that the unusual event caused a delay in its case preparation. 23 I As with all

R.C.M.
707(c) exclusions, the Government had to show that the time it sought to exclude under R.C.M. 707(c)(9) was reasonable; 232 any time in excess of that could not be excluded.

g.
The 90-day provision of R.C.M. 707(d). Change 5 eliminated the 90-day rule previously established in R.C.M. 707(d). The drafters extended the 120-day rule to apply to all cases, including pretrial confinement. 233 The drafters recognized, however, that current judicial decisions state an accused, held in pretrial confinement for more than 90

221
222 21 M.J. 576, 578 (A.C.M.R. 1985).
223 United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986) (Durr "good cause" analysis adopted,Kuelker andHarris "confusfedr); United States v. Ruhling,
28 M.J. 586 (N.M.C.M.R. 1988) (both the balancing test and 2-part nexus tests of Durr adopted; 9-day deployment on readiness exercise following USS
Stark incident in the Persian Gulf found "good cause"). But seeUnited States v. Minidier. 23 M.J. 843 (A.F.C.M.R. 1987) ('good cause' requires an

"extraordinary situation," citing KuelkeO.
224 United States v. Duff, 21 M.J. 576 (A.C.M.R 1985) (-While ... the commission of additional offenses may justify a delay in trial, thus satisfying the first

part of the good cause analysis, such events are not per se justifications.... The commission of the additional offenses must be the cause for trial delay)."
Here the evidence did not show the additional charges caused the delay in trying the case.
225 United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986) (determination of "good cause for joining additional charges requires balancing of the joinder

interest of the Government' citing R.C.M. 601(e)(2) and discussion, and the speedy trial interest, listing nine factors to consider; n.6: the Government
may have the judge rule on the balance before the speedy trial period runs). But see United States v. Britton, 22 M.J. 501 (A.F.C.M.R. 1986) affd on
other grounds, 26 M.J. 24 (C.M.A. 1988). (Government appeal taken on three of five charges; convening authority withdrew two unappealed charges and
repreferred those two charges the same day, along with three additional charges; two unappealed charges dismissed as 143 days of Government
accountable time elapsed from the original notice of preferral; The speedy trial rule of R.C.M. 707 calls for some careful rethinking of old military justice
practices such as ordinarily trying all known offenses at the same time. This is no longer suggested by the Manual and, as this case demonstrates, can
be risky.'(But see R.C.M. 601(e)(2) discussion ("Ordinarily all known charges should be referred to a single court-martiar)"good cause' not mentioned].

226 United States v. Durr, 21 M.J. 576 (A.C.M.R. 1985) (construing the "good cause' exclusion, a nexus between the event and a delay in trial is
required). United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986)(Dunnexus language cited). United States v. Ruhling, 28 M.J. 586 (N.M.C.M.R. 1988). The
Court of Military Appeals explained and limited the "nexus" requirement in. United States v. Longhofer, 29 M.J. 22 (C.M.A. 1989).

227 29 M.J. 22 (C.M.A. 1989).
228 Id. at 27.
223 Id. at 28.
230 Id. at 29.
231 Id. at 27-29; United States v. Facey, 26 M.J. 429 (C.M.A. 1988) ("Generally, we believe that a military judge may properly subtract from the period of
government accountability a delay incurred in order to await trial of a material government witness who is entitled to claim, and foreseeably will claim his
privilege against self-incrimination." Government must offer evidence to demonstrate that there was "delay for good cause." Not all time before a co­accused's trial, however, can be deducted for 'good cause." The judge must decide what portion of the time must be attributed to the Government's
investigation and preparation for trial. That time is not excludable.); United States v. Camacho, 30 M.J. 644 (N.M.C.M.R. 1990) (Art. 32 Investigating
Officer's 6-day emergency leave constituted 'good cause' and was excluded from Government speedy trial accountability. Although report could have
been completed earlier and other events contributed to the overall delay, there was a causal connection between the emergency leave and the delay.
Furthermore, the duration of the leave was reasonable, and the accused was not prejudiced by the delay.)
232 Id.at 26-27 (only 21 of 36 days used to obtain attorney's security clearance was reasonable and excludable); Hall v. Thwing, 30 M.J. 583 (A.C.M.R.
1990) (Prosecution's failure to process case for 171 days while awaiting German government's release of jurisdiction was not reasonable, and time could
not be excluded from Government's speedy trial accountability. Regulations require prompt case processing while jurisdictional issues are resolved and
thereby establish standard of reasonableness. Delay is recognized under R.C.M. 707 'only if German consideration were actually pending when the 120th
day arrived, or if American authorities could not receive German confirmation of waiver of jurisdiction, despite reasonable efforts.")
233 R.C.M. 707(c) analysis (C5, 15 -Nov. 1991).

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days, has been presumptively denied a speedy trial under article 10, UCMJ. The. Government must then demonstrate due diligence in bringing the accused to trial 2 34 The analysis to the new amendment invites the Court of Military Appeals to reexamine the Burton presumption. 235 The drafters recognize that compliance with R.C.M. 707 under Change 5 might not mean compliance with Burton. 236
h. Remedies under Change 5 to R.C.M. 707. A major change to the previous speedy trial rules concerns the remedy available for violations of the 120-day rule of R.C.M. 707. Violation of the previous 120-day rule or 90-day rule of
R.C.M. 707 resulted in dismissal with prejudice. 237 Failure to comply with the new 120- day rule will still result in dismissal, however, Change 5 permits the military judge to dismiss with or without prejudice. 238 The military judge must consider several factors before making a decision to include: "[T]he seriousness of the offense; the facts and circumstances of the case that lead to dismissal; the impact of a reprosecution on the adminyistration of justice; and any prejudice to the accused resulting from the denial of a speedy trial." 239 Dismissal without prejudice allows the Government to reinstitute court-martial charges against the accused for the same offense at a later date. 246 The drafters intended to follow the Federal Speedy Trial Act, 18 U.S.C. 3162, granting the military judge the additional discretion. This discretion is limited, however, and a military judge must dismiss with prejudice if an accused has been deniyed his or her constitutional right to a speedy tria1241

15-7. Rehearings.
R.C.M. 707 applies to rehearings, new trials, and` other trials." 242

15-8. The exceptional case: referral to the U.S. Attorney.
When it appears a prosecution will fail because of a violation of R.C.M. 707, the Government may nonetheless be successful by dismissing court-martial charges and referring an important case to the U.S. Attorney for prosecution in Federal district court. There the more flexible speedy trial rules of the Federal Speedy Trial Act will contro1. 243

15-9. Procedural aspects
A delay in trial does not automatically entitle an accused to dismissal of charges, because the accused must first raise the issue. When the accused raises a speedy trial issue, the Government is required to show the circumstances of the delay.244 The accused raises a speedy trial issue by a motion to dismiss. 245 Failure to challenge delay prior to trial does not bar the motion at tria1. 246 Absent a denial of military due process or manifest injustice, an accused who does not object to a presumptive violation of article 10 under the Burton rule at trial is precluded from raising the issue for the first time on appea1. 247 Under the 1984 Manual a speedy trial issue is waived if not raised before final adjournment, 248
234 Id. 235 Id. 236 Id.
237 United States v. Rowsey, 17 M.J. 151 (C.M.A. 1982); United States v. McCallister, 24 M.J. 881 (A.C.M.R. 1987) (98 days of Government accountable time for confinement and arrest; charge dismissed), affd, 27 M.J. 138 (C.M.A. 1988); United States v. Boden, 21 M.J. 916 (A.C.M.R. 1986) (94 days of pretrial confinement applied against Government; charge dismissed); United States v. Durr, 21 M.J. 576 (A.C.M.R. 1985) (114 days Government
accountable time for restriction tantamount to confinement and for actual confinement; charges dismissed applying R.C.M. 707(d)).
238 R.C.M. 707(d).
239 Id.
240
Id.
241 R.C.M. 707(d) analysis (C5, 15 Nov. 1991). 242 R.C.M. 707(b)(3)(D);see also, United States v. McFadin, 24 M.J. 631 (A.C.M.R. 1987) elletge hold, for purposes of a rehearing under UCMJ art. 63 following appellate reversal of the conviction of a non-confined individual, the rehearing must be held within 120 days of the date the convening authority is notified of the final decision authorizing a rehearing.'); United States v. Rivera-Berrios, 24 M.J. 679 (A.C.M.R. 1987) (120 day-rule applied to new trial under UCMJ art. 73; new trial must begin within 120 days after notification to convening authority of decision granting a new trial); United States v. Moreno, 24 M.J 752 (A.C.M.R. 1987) (120-day rule applied to 'other trial" under R.C.M. 810(e); ''other trial' must begin 120 days after notice to the
convening authority); United States v. Spears, CM 444757 (A.C.M.R. 16 June 1986) (R.C.M. 707(d) applied to rehearing). Compare United States v. Giles, 20 M.J. 937 (N.M.C.M.R. 1985) (R.C.M. 707 does not apply to rehearing on sentence), petition denied, 21 M.J. 388 (C.M.A. 1985). 243 United States v. Talbot, 825 F.2d 991 (6th Cir. 1987) cert. denied. 108 S. Ct. 773 (1988) (court-martial charges against Army doctor at Fort Campbell
withdrawn and allegations of child molesting referred to U.S. Attorney after defense filed speedy trial motion under R.C.M. 707; district court dismissal reversed; 'Dismissal of the federal grand jury indictment based on public policy, supervisory, or other considerations to anertedly bolster future compliance with pertinent time requirements imposed in the context of the independent military court system ... would ... constitute an improvident exercise of authority. In sum, the instant federal prosecution did not violate the defendant's statutory or constitutional speedy trial rights or double jeopardy considerations, did not rise to a level violative of due process, did not result in actual prejudice to the defendant, and did not warrant the extraordinary exercise of supervisory authority or the extreme sanction of dismissal of the indictment.'). 244 United States v. Brown, 28 C.M.R. 64 (C.M.A. 1959). 245 R.C.M. 905. 248 United States v. Sloan, 48 C.M.R. 211 (C.M.A. 1974).
247 Failure to raise a Burton issue at trial is a waiver 'in the absence of a compelling reason to disregard the accused's failure to object at trial.*United States v. Sloan, 48 C.M.R. 211, 213 (C.M.A. 1974). See also United States v. Smith, 48 C.M.R. 659 (C.M.A. 1974); United States v. Marbury, 4 M.J. 823
(A.C.M.R. 1978); United States v. Scarborough, 49 C.M.R. 580 (A.C.M.R. 1974).
248 R.C.M. 907(b)(2). But seeUnited States v. Britton, 26 M.J. 24 (C.M.A. 1988) ('While it is the general rule that failure to make a timely motion at trial

may estop one from raising the issue on appeal, failure to raise the issue does not preclude the Court of Military Review in the exercise of its powers
from granting relief.').

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but as a matter of practice the issue is usually raised prior to plea as defense success on the motion will result in the charges being dismissed. Under change 5, a guilty plea which results in a finding of guilty waives a speedy trial issue previously raised and litigated. 249 The inclusion in a pretrial agreement of a waiver of an accused's right to contest a speedy trial issue is contrary to public policy and void. 256
Once a speedy trial issue is raised, the prosecution has the burden of showing that the delay has not been unreasonable by a preponderance of the evidence. 251 The Government must demonstrate reasonable diligence; it has a duty to account for and explain any delay in bringing charges to trial2 52 The court is not permitted to consider matters in an offer of proof.253 An "unusually heavy burden" exists to show diligence when the accused is in pretrial confinement or its equivalent for over 90 days. 254 Change 5 should reduce the number of speedy trial issues since they will be fully litigated before the convening authority, military judge, or Article 32 investigating officer. The decision in most cases will be in writing with supporting reasons and dates covering the delay. When the military judge grants a motion to dismiss for lack of speedy trial, the convening authority cannot reverse that ruling. 255 The Government can seek reversal by petitioning for an extraordinary writ or by using the Government appeal procedure of R.C.M. 908. 256
249 R.C.M. 707(c) (C5, 15 Nov. 1991). Under the previous R.O.M. 707, guilty pleas did not waive a previously litigated speedy trial issue. See, e.g., United States v. Schalck, 14 C.M.A. 371, 34 C.M.R. 151 (1964); R.C.M. 910(j) (implied); United States v. McDowell. 19 M.J. 937 (A.C.M.R. 1985); United States
v. Voyles, 28 M.J. 831 (N.M.C.M.R. 1989) (failure to raise issue at trial where accused pled guilty waived the issue for appeal; where issue was raised at same trial for other charges, the guilty plea did not waive the speedy trial issue for appeal).
259 United States v. Holland, 50 C.M.R. 461 (C.M.A. 1975); United States v. Cummings, 38 C.M.R. 174 (C.M.A. 1968); R.C.M. 705(c)(1)(B).
251 R.C.M. 905(c)(2)(13); R.C.M. 905(c)(1); United States v. Cummings, 21 M.J. 987 (N.M.C.M.R. 1986): United States v. Facey, 26 M.J. 421 (C.M.A.
1988) ("Since the Government has the responsibility of establishing its entitlement to any deductions from the period for which it would otherwise be
accountable under R.C.M. 707, any deficiency of evidence must be laid at its door.")

252 United States v. Bell, 17 M.J. 578 (A.F.C.M.R. 1983); United States v. Washington, 49 C.M.R. 884 (A.F.C.M.R. 1975).
253 United States v. Cummings, 21 M.J 987 (N.M.C.M.R. 1986); United States v. Thompson, 29 C.M.R. 68 (C.M.A. 1960) (a proffer is not evidence).
254 United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971). This is really the heart of the Bunonrules—Government conduct when the accused is

in pretrial confinement will be closely scrutinized.
255 United States v. Rowel, 1 M.J. 289 (C.M.A. 1976).
256 See generally United States v. Dettinger, 7 M.J. 216 (C.M.A. 1979).

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Chapter 16 The Article 32 Investigation/The Article 34 Pretrial Advice
Section I The Article 32 Investigation
16-1. General
No specifications or charge may be referred to a general court-martial unless there has been a thorough and impartial
pretrial investigation conducted in substantial compliance with article 32 of the Uniform Code of Military Justice
(UCMJ)) The UCMJ specifically states that failure to comply with article 32 is not jurisdictional error; 2 however a
defective article 32 investigation may deprive the accused of a substantial pretrial right 3 and warrant appropriate relief
at trial. 4
Commentators and courts frequently compare the article 32 investigation to the Federal preliminary hearing and the
Federal grand jury. 5 Although the article 32 investigation is not exactly equivalent to either Federal proceeding, it has
elements of both and serves as the soldier's counterpart in guaranteeing that the accused will not be tried on baseless
charges.6
The Court of Appeals for the District of Columbia Circuit has emphasized the significance of the pretrial inves­tigation.7 In Talbot v. Toth,8 the accused was charged with murder and was placed in pretrial confinement. He petitioned for a writ of habeas corpus arguing that court-martial procedures denied him due process. He specifically contended that the lack of a grand jury inquiry and indictment constituted a denial of procedural due process. Recognizing that the fifth amendment exempts cases arising in the land or naval forces from the requirement of indictment by grand jury, the Court of Appeals went on to add that:
These provisions of the Uniform Code [Articles 32 and 34] seem to afford an accused as great protection by way of preliminary inquiry into probable cause as do requirements for grand jury inquiry and indictment. ... Thus, the basic purpose of a hearing preliminary to trial is being met by a method designed pursuant to constitutional provisions, and the method meets all elements essential to due process. 9
16-2. Purposes
a. Statutory. The three statutorily recognized purposes of the article 32 pretrial investigation are to inquire into the truth of the matters set forth in the charges, to consider the form of the charges, and to obtain an impartial recommendation as to the disposition that should be made of the case. 10 Although the recommendations of the investigating officer are only advisory,' I the investigation provides the convening authority with a screening device to identify and dismiss specifications that are not supported by available evidence or which are otherwise legally deficient. The convening authority is specifically precluded from referring a specification to a general court-martial if the staff judge advocate concludes in the pretrial advice that the specification is not warranted by the evidence indicated in the article 32 report of investigation.I 2
1 UCMJ art. 32(a); R.C.M. 405(a).
2 UCMJ art. 32(d) provides that tine requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute jurisdictional error? 3 The Court of Military Appeals, following dicta in the case of Humphrey v. Smith, 336 U.S. 695 (1949), has consistently accorded special significance to
the pretrial hearing. In United States v. Parker, 19 C.M.R. 201. 207 (C.M.A. 1955) the court held that ''an impartial pretrial hearing is a substantial right which should be accorded an accused .... We frown on attempts to whittle it away. We, therefore, start with the premise that a record discloses error when it shows that a perfunctory and superficial pretrial hearing was accorded an accused? In United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958), the court expanded the concept of enforcement of pretrial hearing rights: 'If an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial." 4 R.C.M. 405(a) discussion; R.C.M. 906(b)(3).
5 See, e.g., United States v. Nichols, 23 C.M.R. 343 (C.M.A. 1957) (sooner . or later the military services must realize that this process is the military
counterpart of a civilian preliminary hearing, and it is judicial in nature and scope); MacDonald v. Hodson, 42 C.M.R. 184 (C.M.A. 1970) (the article 32
investigation partakes of the nature both of a preliminary judicial hearing and of the proceedings of a grand jury); see also Moyer, Procedural Rights of
the Military Accused: Advantages Over a Civilian Defendant 22 Me. L. Rev. 105 (1970); Murphy, The Formal Pretrial Investigation, 12 Mil. L Rev. 1, 9
(1961).

6 United States v. Samuels, 27 C.M.R. 280 (C.M.A. 1959) (it is apparent that the article [32 investigation] serves a twofold purpose; it operates as a
discovery proceeding for the accused and stands as a bulwark against baseless charges). See generally Fed. R. Crim. P. 5.1 (Preliminary Examination);
Fed. R. Crim. P. 6 (The Grand Jury).

7 Talbot v. Toth, 215 F.2d 22 (D.C. Cir. 1954).
8 Id.
9 Id. at 28.

UCMJ art. 32(a); R.C.M. 405(a) discussion. 11 R.C.M. 405(a) discussion;see also Green v. Widdecke, 42 C.M.R. 178 (C.M.A. 1970) (investigating officer's recommendation that the accused be prosecuted for voluntary manslaughter did not preclude referral of an unpremeditated murGar charge). 12 UCMJ art. 34(a)(2).
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b.
Discovery purpose. Although the article 32 investigation may not have been originally designed to be a defense discovery procedure, 13 the broad rights afforded the accused to have reasonably available wimesses 14 and evidence's produced at the investigation make it a useful discovery tool. Appellate courts have generally recognized that the article 32 investigation does fulfill a legitimate defense discovery purpose. 16 This discovery purpose has also been recognized by the drafters of Military Rule of Evidence 804. 17

c.
Preservation of testimony as a collateral purpose. In addition to its express statutory purposes and recognized discovery purpose, the article 32 investigation also serves a collateral purpose related to the preservation of testimony. The article 32 investigating officer is charged with identifying whether potential witnesses will be available for trial, 18

19 and evidentiary rules allow for some article 32 testimony to be used as evidence at tria1.
(1) Prior statements under Military Rule of Evidence 801(d)(1). Under Military Rule of Evidence 801(d)(1), prior statements of a witness are admissible at trial as substantive evidence if the witness testifies at trial and the prior statement fits within one of three categories: (1) prior consistent statements offered to rebut an express or implied charge that the witness' in-court testimony was recently fabricated; (2) statements of identification of a person made after perceiving the person; and (3) prior inconsistent statements given under oath subject to the penalty for perjury at a trial, hearing, or other proceeding.
While all three categories of prior statements can have important applications at trial, the last category, prior inconsistent statements, is the one that is potentially the most useful for counsel. It is not uncommon for witnesses to change the substance of their testimony between the time of the article 32 hearing and the time of trial. Because all testimony at the article 32 hearing must be given under oath" (except unsworn statements by the accused) 21 , and false
13 R.C.M. 405(a) discussion. There is some disagreement whether the article 32 investigation was originally intended to be a defense discovery device. There is some support in the legislative history for both sides of the issue. Proponents of the position that the article 32 investigation was intended to be a defense discovery device point to the following testimony given by Mr. Larkin before the House Committee on Armed Services:
[The Article 32 investigation] goes further than you usually find in a proceeding in a civil court in that not only does it enable the investigating officer
to determine whether there is probable cause ... but it is partially in the nature of a discovery for the accused in that he is able to find out a good
deal of the facts and circumstances which are alleged to have been committed which by and large is more than an accused in a civil case is entitled

to.
Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 997 (1949). Opponents of the defense discovery position point to the fact that the hearings taken as a whole demonstrate an intent to create a mechanism for determining the existence of probable cause. Any utility the investigation may have as a discovery tool is viewed as a purely coincidental by-product of this probable cause determination. See generally United States v. Connor, 27 M.J. 378 (C.M.A. 1989). Because the defense discovery purpose is not mentioned anywhere else in the legislative history, or in article 32 itself, the better view is probably that defense discovery was intended only to be a collateral consequence of the investigation.
14 R.C.M. 405(g)(1)(A). See generally infra para. 16-4.
R.C.M.
405(g)(1)(B).See generally infra para. 16-4. 16 See, e.g„ United States v. Tomaszewski, 24 C.M.R. 76 (C.M.A. 1957) (the article 32 investigation"operates as a discovery proceeding."); United States

v.
Samuels, 27 C.M.R. 280, 286 (C.M.A. 1959) (it is apparent that the article [32 investigation] serves a twofold purpose; it operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges); United States v. Payne, 3 M.J. 354, 357 n.14 (C.M.A. 1977) (one of Congress' intentions in creating the article 32 investigation was to establish a method of discovery); United States v. Roberts, 10 M.J. 308, 311 (C.M.A. 1981) (there is no doubt that a military accused has important pretrial discovery rights at an article 32 investigation; nevertheless, such pretrial discovery is not the sole purpose of the investigation nor is it unrestricted in view of its statutory origin). But see United States v. Eggers, 11 C.M.R. 191, 194

(C.M.A. 1953) (discovery is not a prime object of the pretrial investigation; at most it is a circumstantial by-product—and a right unguaranteed to defense counsel); United States v. Connor, 19 M.J. 631 (N.M.C.M.R. 1984), aff'd 27 M.J. 378 (C.M.A. 1989).
17 In discussing whether testimony at the article 32 investigation should fall with the Federal 'former testimony' exception to the hearsay rule, the drafters of Mil. R. Evid. 804 specifically addressed the discovery role of the article 32 investigation:
Because Article 32 hearings represent a unique hybrid of preliminary hearings and grand juries with features dissimilar to both, it was particularly
difficult for the Committee to determine exactly how ... the Federal Rule would apply to Article 32 hearings. The specific difficulty stems from the fact
that Article 32 hearings were intended by Congress to function as discovery devices for the defense as well as to recommend an appropriate

disposition of charges to the convening authority.
Mt. R. Evid. 804(b) analysis. See also R.C.M. 405 After outlining the primary (statutorily recognized) purposes of the article 32 investigation, the drafters of R.C.M. 405 stated that '[t]he investigation also serves as a means of discovery.' R.C.M. 405(a) discussion.
R.C.M. 405(h)(1)(A) discussion; DA Pam 27-17, para. 3-3a (15 Mar. 1985); see also DD Form 457, Investigating Officer's Report, block 16 (Aug.
1984).
16 Mil. R. Evid. 613 (impeachment with prior inconsistent statements); Mil. R. Evid. 801(d)(1) (prior statements of witnesses admissible as substantive
evidence); Mil. R. Evid. 804(b)(1) (former testimony o; unavailable witnesses admissible as substantive evidence).
20 R.C.M.405(h)(1)(A).

R.C.M. 405(1)(12); R.C.M. 405(h)(1)(A).
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testimony at the article 32 hearing can be punished as petjury, 22 article 32 testimony can be admitted as a prior inconsistent statement. Unlike prior statements offered pursuant to Military Rule of Evidence 613, the prior testimony serves not only to impeach the witness' in-court testimony, 23 it also can be considered on the merits as substantive evidence to establish an element of the offense or to raise a defense. 24
(2)
Former testimony under Military Rule of Evidence 804(b)(1). Under Military Rule of Evidence 804(b)(1), testimony given at an article 32 hearing is admissible at a subsequent trial if: (a) there is a verbatim transcript of the article 32 testimony; (b) the witness is now unavailable to testify at the trial; and (c) the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony at the article 32 hearing. 25

(a)
Verbatim transcript. The report of the article 32 investigation must include the substance of the witness testimony taken on both sides. 26 The investigating officer ordinarily will summarize the testimony and, when practical, will have the witness swear to the truth of the summary. 27 Although the accused has no right to have a verbatim transcript of the article 32 hearing prepared, 28 the appointing authority can direct that a verbatim transcript be taken. 29

When a verbatim transcript is not ordered originally but audio recordings of the testimony are made to assist the investigating officer in producing a summarized transcript, those tape recordings may later constitute a verbatim record of testimony under Military Rule of Evidence 804(b)(1). 3°

(b)
Unavailability. Witness unavailability for the purpose of admitting article 32 testimony as an exception to the hearsay rule is generally defined in Military Rule of Evidence 804(a). 31

When the former article 32 testimony is to be introduced by the Government, the accused's right to confront the witness also impacts on the Government's obligation to demonstrate unavailability. The confrontation clause requires the Government to demonstrate a good faith effort to obtain the witness' presence at tria1. 32 The Supreme Court defined this "good faith" requirement in Ohio v. Roberts: 33
[I]f no possibility of procuring a witness exists ... "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith
22 Military witnesses are subject to court-martial for perjury under article 131. UCW art. 131 defines the crime of perjury as follows:
Any person subject to ... (the Code] who in a judicial proceeding or in a course of justice willfully and corruptly ... upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry ... is guilty of perjury and shall be punished as a court-martial may direct.
The phrase In a course of justice includes an investigation conducted under article 32. MCM, 1984, Part IV, para. 57c(1); see also United States v. Crooks, 31 C.M.R. 263, 266 (C.M.A. 1962) ('That the Article 32 investigation is a 'judicial proceeding or in a course of justice' within the meaning of Article 131 is not open to question'; United States v. Poole, 15 M.J. 883 (A.C.M.R. 1983) (the accused was convicted of committing perjury while testifying at an article 32 investigation).
Civilian witnesses and military witnesses who testify falsely at an article 32 hearing can be tried in Federal court for perjury in violation of 18 U.S.C.§ 1621 (1982), which provides:
Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to
be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him
subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of
perjury.... This section is applicable whether the statement or subscription is made within or without the United States.

A more difficult, and unanswered, question exists regarding the admissibility under M.R.E. 801(d)(1) of prior article 32 testimony given by a foreign
national who is not amenable to a perjury prosecution before a U.S. tribunal. Arguably, the prior inconsistent statement would be admissible if the false
article 32 testimony would be punishable as perjury under the laws of the nation where the testimony occurred or under the laws of the nation where the
witness held citizenship. Alternatively, counsel could attempt to have the statement admitted under the general hearsay exception in Mil. R. Evid.
804(b)(5).
23 See Mil. R. Evid. 613.

24 Mil. R. Evid. 801(d)(1).
26 Mil. R. Evid. 804(b)(1). See United States v. Conner, 27 M.J. 378 (C.M.A. 1989); United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989).
26 R.C.M. 4050)(2)(B).
27 R.C.M. 405(h)(1)(A) discussion.
28 United States v. Allen, 18 C.M.R. 250 (C.M.A. 1955); United States v. Fredrick, 7 M.J. 791 (N.C.M.R. 1979); United States v. Matthews, 13 M.J. 501

(A.C.M.R. 1982) (lack of a verbatim article 32 transcript in a capital case did not deprive the accused of the sixth amendment right to effective
representation by counsel).
26 R.C.M. 405(c) gives the appointing authority the power to establish procedures for conducting the investigation so long as the procedures established
are not inconsistent with the Rules for Courts-Martial.

30 The requirement that a verbatim record of the testimony be produced was added to Fed. R. Evid. 804(b)(1) to ensure accuracy of the former statement The actual tape recordings of the testimony would be the most accurate record of the testimony available. Mil. R. Evid. 804(b)(1) analysis. 31 Mil. R. Evid. 804(a) provides that a declarant is unavailable when the declarant—
(1)
is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2)
persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the military judge to do so; or

(3)
testifies to a lack of memory of the subject matter of the declarants statement; or

(4)
is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5)
is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance ... by process or other reasonable means; or

(6)
is unavailable within the meaning of article 49(0(2). 32 Barber v. Page, 39 U.S. 719 (1968). 33 448 U.S. 56 (1980).

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may demand their effectuation. "The lengths to which the prosecution must go to produce a witness ... is a
question of reasonableness."34
(c) Opportunity and similar motive. The greatest stumbling block to the admissibility of article 32 testimony pursuant to Military Rule of Evidence 804(b)(1) is the requirement that opposing counsel had an opportunity and similar motive to develop the article 32 testimony through direct, cross, or redirect examination. 35 The proponent of the evidence bears the burden of establishing this"opportunity and similar motive." 36
Opportunity. There are two typical situations where counsel opposing the admission of former testimony may argue the lack of opportunity to develop the testimony at the article 32. First, counsel opposing the evidence at trial may argue that they were not personally present at the article 32. The defense counsel representing the accused at trial may not have been hired until after the article 32 hearing or may have allowed detailed military counsel to handle the pretrial investigation. 37 Government counsel also may decide not to attend the article 32 hearing, even though entitled to attend as the Government's representative, 38 and instead allow the investigating officer to conduct the examination.
Second, counsel may argue that they had no opportunity to inquire into certain areas of cross- examination because of limited investigation and preparation time, or because important evidence concerning the case was not discovered until' after the investigation. 39
Federal courts have not taken such a restrictive view of the opportunity requirement 4 0 Common law required an identity of parties and an identity of issues between the trial and the pretrial hearing,'" but these requirements may be somewhat relaxed when admissibility is analyzed in terms of opportunity and similar motive 4 2 In United States v. Hubbard43 the Court of Military Appeals held that prior testimony is not rendered inadmissible simply because after the giving of the testimony, the defense obtains material information concerning which there was no opportunity to cross­examine the absent witness!'
Similar motive. There is little doubt that in any given case a defense counsel's motive to develop a Government witness' testimony at the article 32 hearing may be different than the motive the defense counsel would have • at trial. The defense counsel may treat the article 32 hearing as a discovery device to conduct an"initial interview" of the witness; as a practice opportunity to try a new advocacy technique; or as a pro forma proceeding where little or no defense counsel participation is necessary. Because the recommendations of the investigating officer are purely advisory45 it may not be to the accused's benefit to discredit the Government witness at the article 32 hearing. If the defense counsel 'believes the charges inevitably will be referred to trial by general court-martial, the prudent defense counsel will seek to conceal the defense strategy and will save effective areas of cross-examination and impeachment for trial where the element of surprise can be used to the best tactical advantage. Notwithstanding that the defense counsel's motives may be dissimilar in fact, the courts vary in how they assess the presence or absence of this"similar motive" as a matter of law.
The drafters' analysis to Military Rule of Evidence 804(b)(1) suggests that a defense counsel who uses the article 32 hearing for discovery rather than impeachment would not have a "similar motive" within the intended meaning of Military Rule of Evidence 804(b)(1). 46 The drafters go on to suggest that although the &Sense counsel's assertion of his or her motive is not binding on the military judge, the prosecution has the burden of establishing admissibility, and that burden "may be impossible to meet should the defense counsel adequately raise the issue." 47
Military courts have not found it as difficult to find "similar motive" as the drafters suggested in their analysis. In United States v. Conner 48 the Court of Military Appeals expressly recognized the discovery role of the article 32 investigation but went on to state that "unlike the Drafters Analysis, we do not believe that this right of discovery
34 Id. at 74.
36 Mil. R. Evid. 804(b)(1).
36 Mil. R. Evid. 804(b)(1) analysis.
37 At the article 32 hearing, the accused has the right to be represented by detailed military counsel, to request available individual military counsel, or to

hire a civilian counsel. R.C.M. 405(d)(2).
38 R.C.M. 405(d)(3).
38 The investigating officer is charged with conducting a timely investigation. R.C.M. 405(j)(1). If the accused is in pretrial confinement the report of

investigation should be forwarded to the general court-martial convening authority within 8 days of the imposition of the confinement. UCMJ art. 33.
40 See generally M. Graham, Handbook on Federal Evidence 903 (1981). See also United States v. Zurosky, 614 F2d 779, 791 (1st Cir. 1979) Med. R.
Evid. 804(b)(1)] doesn't focus on practical realities facing defense counsel but rather upon the scope and nature of the opportunity for cross-examination

permitted by the court."). A change in counsel after the pretrial hearing will not, standing alone, defeat the admissibility of former testimony under Mil. R.
Evid. 804(b)(1). United States v. Kelly, 15 M.J. 1024 (A.C.M.R. 1983). Accord Ohio v. Roberts, 448 U.S. 56 (1980).
41 M. Graham, Handbook on Federal Evidence 903 (1981).
42 Id; see also United States v. Hubbard. 18 M.J. 678, 683 n.1 (A.C.M.R. 1984).
43 28 M.J. 27 (C.M.A. 1989).
" Id. at 32 (citing United States v. Conner, 27 M.J. 378 (C.M.A. 1989)); see also United States v. Spindle, 28 M.J. 35 (C.M.A. 1989).

46 R.C.M. 405(a) discussion.
46 Mil. R. Evid. 804(b)(1) analysis.

Id.
" 27 M.J. 378 (C.M.A. 1989).
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precludes the subsequent reception at trial of testimony taken during the pretrial hearing." 49 Specifically addressing the "similar motive" requirement, the court noted that the investigating officer not only investigates whether the charges are substantiated but also makes recommendations as to disposition. Thus, the defense has "a 'motive' to bring out by cross-examination or otherwise any circumstances that might induce the convening authority to dismiss the charges or refer them to a court-martial of limited jurisdiction." 50 The court held that while tactical considerations may affect cross-examination by defense counsel at article 32 investigations, "if the defense counsel has been allowed to cross­examine the government witness without restriction on the scope of cross-examination, then the provisions of Military Rule of Evidence 804(b)(1) and of the Sixth Amendment are satisfied, even if that opportunity is not used, and the testimony can later be admitted at trial." 51
In United States v. Hubbard, 52 the Army Court of Military Review noted with approval the broad interpretation that Federal courts have given the term"similar motive" used in Federal Rule of Evidence 804(b)(1). 53 Instead of accepting the defense counsel's assertion as to motive, the court determined the issue by an objective examination of counsel's conduct at the article 32 hearing. 54 In Hubbard, the defense counsel conducted a thorough, lengthy, and vigorous cross­examination that covered all obvious areas of possible attack; 55 and thus objectively demonstrated a similar motive. The Court of Military Appeals affirmed the Army Court's holding on that issue citing Conner. 56
Despite the holdings in Hubbard and Conner, it should be remembered that the "similar motive" requirement is more than a suggestion by the drafters of the Military Rules of Evidence It is a foundational element specifically contained in both Federal Rule of Evidence 804(bX1) and Military Rule of Evidence 804(b)(1), and actually replaced the old requirements of identity of parties and identity of issues. 57 Additionally, the "similar motive" requirement plays a role in satisfying the confrontation clause by ensuring that the former testimony has the requisite indicia of reliability. 58
An unresolved issue is the extent to which one party can impose a "similar motive" on opposing counsel by announcing beforehand that it intends to use the witness' article 32 testimony as "former testimony" should the witness become unavailable for trial.
16-3. Participants
a. Appointing authority. Unless prohibited by service regulations, any court-martial convening authority can appoint an article 32 investigating officer and direct that an investigation be conducted. 59 There is no requirement that the appointing authority be neutral and detached. In fact, by definition, the appointing authority will order an article 32 investigation only after making a determination that the charged offenses possibly merit trial by general court-martia1. 60
Although all convening authorities have the general authority to order an article 32 investigation, that prerogative can be curtailed or circumscribed by a superior convening authority. 61
b. Investigating officer. The appointing authority who directs an article 32 investigation also appoints an investigat­ing officer to conduct the investigation. 62 The investigating officer must be mature 63 and impartia1, 64 and must conduct the investigation as a quasi-judicial proceeding. 65
49 Id. at 388. .
5° Id. at 389.
51 Id.
52 18 M.J. 678 (A.C.M.R. 1984).
53 Id. at 683 n.1.
54 Id. at 682. Accord S. Saltzburg, L. Schinasi & D. Schlueter, Military Rules of Evidence Manual 679-680 (2d ed.) (1986).
55 18 M.J. at 683 (the court specifically noted that the defense counsel attempted to discredit the Government witness with prior inconsistent statements

and by showing past criminal activity of the witness).
56 28 M.J. 27 (C.M.A. 1989).
52 M. Graham, Handbook on Federal Evidence 903 (1981). The Navy-Marine Court of Military Review relied on United States v. Eggers, 11 C.M.R. 191

(C.M.A. 1953) and United States v. Burrow, 36 C.M.R. 250 (C.M.A. 1966). Both cases predated Mil. R. Evid. 804(b)(1). In Eggers and Burrow, the Court of Military Appeals declined the opportunity to read a "similar motive" requirement into the reported testimony hearsay exception. The court did not address the issue of wharsimilar motive' would mean were it an actual part of the evidentiary rule contained in the Manual for Courts-Martial. m See Ohio v. Roberts, 4.48 U.S. 56 (1980); see alsoUnited States v. Thornton, 16 M.J. 1011 (A.C.M.R. 1983). In Thornton, the Government introduced a sworn statement of the victim under the residual hearsay exception, Mil. R. Evid. 804(b)(5), arguing in part that defense cross-examination of the victim at the article 32 investigation provided the 'indicia of reliability required by the confrontation clause. The Army Court of Military Review rejected that argument, saying it is more than a possibility that the defense counsel used the Article 32 hearing for discovery purposes alone' Thornton, 16 M.J. at
1014.
R.C.M. 405(c).
53 United States v. VVojciechowski, 19 M.J. 577 (N.M.C.M.R. 1984) -(no error occurred where special court-martial convening authority told the accused he was going to send the case to a general court-martial, even though the special court-martial convening authority had not yet received the report of the article 32 investigation).
61 United States v. Turner, 17 M.J. 997 (A.C.M.R. 1984) (the general court-martial convening authority can require subordinate convening authorities to appoint one-of two designated officers to perform any investigation conducted pursuant to article 32, UCMJ).See generally United States v. Blaylock, 15
M.J. 190 (C.M.A. 1983).
62 R.C.M. 405(d)(1).
69 R.C.M. 405(d)(1) discussion.
64 R.C.M. 405(a).
55 R.C.M. 405(d)(1) discussion; United States v. Payne, 3 M.J. 354 (C.M.A. 1977).

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(1) Maturity. The investigating officer must be a commissioned officer. 66 The Manual for Courts- Martial goes on to define "maturity" in terms of a preference for a field grade officer or an officer with legal training 6 7 Although there is no requirement that a lawyer serve as investigating officer, many jurisdictions do make lawyers available to serve as investigating officers—particularly in complex or serious cases. 68 Junior officers, even those who are lawyers, should
69
not be appointed to investigate against senior officers; however, such appointment is not necessarily fatal.
(2) Impartiality. Article 32 entitles the accused to a "thorough and impartial investigation," 70 but neither the UCMJ nor the Manual goes on to further define when an investigating officer should be disqualified because of lack of impartiality. The only specific prohibition in the MCM is that the accuser is disqualified from serving as investigating officer. 71
Case law does provide some guidance as to when a person should be disqualified from serving as an investigating officer. Prior knowledge about a case, standing alone, does not disqualify an officer from serving as an article 32 investigating officer. 72 By the same token, participation in a related case, as an investigating officer 73 or military judge,74 is not a disqualification. An officer is disqualified from serving as an investigating officer if he or she has had a prior role in perfecting the case against the accused 75 or has previously formed and expressed an opinion concerning the accused's guilt. 76
As a general proposition, an investigating officer should be disqualified anytime his or her impartiality might reasonably be questioned."
(3) Quasi-judicial character. It is well established in case law that the article 32 investigation is a judicial (or quasi­judicial) proceeding 78 and that the investigating officer performs a quasi-judicial function. 79 Accordingly, courts require the investigating officer to comply with applicable provisions of the ABA Code of Judicial Conduct and the ABA Standards for Criminal Justice."' Although there are a number of ethical standards which have been applied to the
" R.C.M. 405(d)(1).
67 R.C.M. 405(d)(1) discussion. Although the MCM, 1984, does not discuss these qualifications as indicative of "maturity' they are carried over from MCM,
1969, para. 34a , which did discuss them in that context.
98 See, e.g., United States v. Durr, 47 C.M.R. 622 (A.F.C.M.R. 1973); see also United States v. Davis, 20 M.J. 61 (C.M.A. 1985) (the court encouraged

the use of lawyers as investigating officers, noting that "the use of legally trained persons to perform the judicial duties involved avoids some of the
complaints lodged against lay judges").
99 United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987). The Court of Military Appeals noted thatlajithough it may not be fatal that the Article 32
Investigating Officer was junior in rank to the accused, ... we consider it a gross breach of military protocol and courtesy to appoint one who is junior in
rank to preside over matters involving a person of higher rank."

70 UCMJ art. 32(a) (emphasis added).
71 R.C.M. 405(d)(1); United States v. Cunningham, 12 C.M.A. 402, 30 C.M.R. 402 (1961) (appointment of an accuser as the pretrial investigating officer is inconsistent with the codal requirement of a thorough and impartial investigation of the charges). 72 United States v. Schreiber, 16 C.M.R. 639 (A.F.B.R.'1954) (the investigating officer detailed to investigate Schreiber's case had previously been the
article 32 investigating officer in a related case; the board of review held that mere familiarity with the facts and details of a case was not a
disqualification). 73 United States v. Collins, 6 M.J. 256 (C.M.A. 1979). During the course of Airman Collins' article 32 hearing, the investigating officer discovered that Collins had threatened potential witnesses in the investigation. After the investigating officer passed this information to the appointing authority, the appointing authority directed the same investigating officer to include the allegations of communicating a threat in the ongoing article 32 investigation. The court held that the investigating officers actions did not make him an accuser and did not manifest a lack of impartiality.
74 United States v. Jones, 20 M.J. 919 (N.M.C.M.R. 1985); United States v. Wager, 10 M.J. 546 (N.C.M.R. 1980) (a military judge who presides over a
companion case is not automatically disqualified from later serving as the article 32 investigating officer in a co-accused's case). 75 United States v. Parker, 19 C.M.R. 201 (C.M.A. 1955). In Parker, a 'serious incident investigator" was assigned the task of assisting CO in the investigation of a series of offenses. This investigator accompanied the accused to CID headquarters and assisted in the interrogation, eventually getting the accused to confess. This same serious incident investigator was then appointed the article 32 investigating officer. As the article 32 investigating officer, his "hearing*consisted of no more than a consideration of his own prior investigative file. Calling this scenario "not even token compliance with Article 32," the Court of Military Appeals held that the investigating officer's prior rote in "solving these mysteries and insuring an ironclad conviction of the wrongdoer" deprived him of impartiality. See also United States v. Lopez, 42 C.M.R. 268 (C.M.A. 1970).
76 United States v. Natalello, 10 M.J. 594 (A.F.C.M.R. 1980). In Natalello, an investigating officer of a related case determined from his investigation that Natalello was also involved in the offenses he was investigating. Charges were brought against Natalello and the same investigating officer was detailed to conduct the article 32 investigation. The court held that he should have been disqualified because of "his prior conclusions drawn and expressed about the accused's culpability.'
77 United States v. Castleman, 11 M.J. 562 (A.F.C.M.R. 1981). The article 32 investigating officer in Castleman was a good friend of the accuser/main Government witness in the case. In holding that the investigating officer should have disqualified himself, the court relied on the ABA Standards for Criminal Justice, The Function of the Trial Judge, Standard 1.7 (1972), which states 'Mlle trial judge should recuse himself whenever he has any doubt as to his ability to preside impartiality in a criminal case or whenever he believes his impartiality can reasonably be questioned* (emphasis added).C­ompare United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987) (where the court held that a judge advocate was not disqualified from being the article 32
investigating officer in a case where the trial counsel, assistant trial counsel, and Government witnesses were all co-workers assigned to other branches of the same staff judge advocate office) withUnited States v. Davis, 20 M.J. 61 (C.M.A. 1985) (investigating officer should have recused himself where his supervisory relationship with defense counsel could have impaired defense counsel's effectiveness in representing the accused).
78 See, e.g., United States v. Nichols. 23 C.M.R. 343, 348 (C.M.A. 1957) ("Its judicial character is made manifest by the fact that testimony taken at the hearing can be used at the trial if the witness becomes unavailable."); United States v. Samuels, 27 C.M.R. 280, 286 ("It is judicial in nature."). 79 United States v. Payne, 3 M.J. 354, 355 n.5 (C.M.A. 1977) ("Mhe investigating officer must be viewed as a judicial officer, and function accordingly."): United States v. Collins, 6 M.J. 256, 258 (C.M.A. 1979) (the article 32 investigating officer is referred to as -the Article 32 judicial officer").
8D United States v. Payne, 3 M.J. 354 (C.M.A. 1977); United States v. Collins, 6 M.J. 256 (C.M.A. 1979); United States v. Grimm, 6 M.J. 890 (A.C.M.R. 1979).
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article 32 investigating officer, 81 the most significant provisions involve the prohibition against ex parte com­munications.82 Such prohibited communications include ex parte contact with counse1, 83 witnesses," the accused's commanding officer, 85 and the accuser. 86 An ex parte visit to the scene of the offense has been condemned, 87 as well as the ex parte consideration of two police reports included in the investigative packet. 88 The Army court recently held that it was improper for the investigating officer to ex parte develop background information for the investigation by contacting CID post housing office, post finance office, and talking with a potential witness. 89 There was no prejudice, however, to the accused.
The general rule is that the article 32 investigating officer must receive all legal advice from a neutral judge
advocate, and no advice concerning substantive matters can be given ex parte."
While the rule itself is easily stated, the courts have struggled in defining the parameters of the specific prohibitions.

(a) Neutral legal advisor. When the article 32 investigating officer is not legally trained, it is usually desirable to
have a legally trained "advisor" available to assist the investigating officer in conducting a legally sufficient investiga­tion and to address the myriad of legal questions which arise during the course of a typical investigation.

The investigating officer must get all legal advice from a neutral legal advisor. 91 Communications with nonneutral personnel are permissible only if they involve patently trivial administrative matters, that is, when to take a lunch break. 92 The trial counsel appointed to attend the proceedings as the Government representative clearly is not neutral 9 3
Generally, anyone performing a"prosecutorial function" is disqualified from ierving as legal advisor to the article 32 investigating officer. 94 Although the determination of whether a chief of criminal law or a trial counsel for another jurisdiction is performing a "prosecutorial function" depends on the specific facts in the case, 95 the better practice is to appoint a judge advocate having no criminal law related responsibilities as the legal advisor for the article 32
81 See, e.g., United States v. Collins, 6 M.J. 256, 259 (C.M.A. 1979) ("The Standards Relating to the Administration of Criminal Justice, as compiled by
the American Bar Association regarding the Function of the Trial Judge, provide proper guidelines for any person acting in a judicial capacity or quasi­judicial capacity. Without fully reiterating all the General Standards relating to the judicial person's obligations, we regard the duty to protect the witness
[ABA Standards, The Function of Trial Judge § 5.4 (1972)] and the duty to maintain order [ABA Standards, The Function of Trial Judge § 6.3 (1972)) as
pertinent to the facts of this case.")

82 Code of Judicial Conduct Canon 3A(4) (1972) provides:
A judge should ... neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. Commentary. The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out his adjudicative responsibilities.
Standards for Criminal Justice, Special Functions of the Trial Judge § 6-2.1 (1980) provide that The trial judge should insist that neither the prosecutor
nor the defense counsel nor any other person discuss a pending case with the judge ex pane, except after adequate notice to all other parties and when
authorized by law or in accordance with approved practice."

83 United States v. Payne, 354 (C.M.A. 1977); United States v. Francis, 25 M.J. 614 (C.G.C.M.R. 1987).
84 United States v. Whitt, 21 M.J. 658 (A.C.M.R. 1985); United States v. Martel, 19 M.J. 917 (A.C.M.R. 1985).
85 United States v. Francis, 25 M.J. 614 (C.G.C.M.R. 1987).
86 Id.
87 United States v. Martel, 19 M.J. 917 (A.C.M.R. 1985).
88 Id. The article 32 investigating officer is also prohibited from receiving ex parte legal advice concerning substantive matters. United States v. Payne, 3

M.J. 354 (C.M.A. 1977). United States v. Grimm, 6 M.J. 890, 893 (A.C.M.R. 1979) interpretedPayne as follows:
We read Payne as forging two tests for error. First, does the individual furnishing any advice to an I.O. serve in a prosecutorial function? If so, there . is error. Second, did the I.O. obtain advice from a non-prosecutor advisor on asubstantive question without prior notice to all other parties? If so, again there is error.
88 United States v. Rushatz, 30 M.J. 525 (A.C.M.R. 1990).
90 Id.
81 United States v. Payne, 3 M.J. 354 (C.M.A. 1977) (to do otherwise would constitute an abandonment of the required impartiality and would result in a
derogation of the judicial functions inherent in that office).
w United States v. Grimm, 6 M.J. 890, 893 n.8 (A.C.M.R. 1979), the court stated:

We believe that reason mandates that the "advice*Payne condemns does not include patently trivial matters, e.g., scheduling of a hearing room or arranging for a legal clerk or court reporter to assist the 1.0. Notwithstanding, the better practice would be minimize I.O. and prosecution contracts on even administrative matters.
83 United States v. Payne, 3 M.J. 354, 355 (C.M.A. 1977) ("However laudable ... [the investigative officer's) ... desire to confer with someone
more'familiar' with the case may have been, we find that these ex pane discussions with the prosecuting attorney were violative of his role as a judicial
officer.").

84 United States v. Payne, 3 M.J. 354 (C.M.A. 1977); United States v. Grimm, 6 M.J. 890 (A.C.M.R. 1979).
85 United States v. Grimm, 6 M.J. 890 (A.C.M.R. 1979). In Grimm, the court discussed whether the chief of criminal law at Fort Ord performed a
"prosecutorial function" within the meaning of Payne. Holding that regular duty titles are not dispositive of the issue, the court went on to look at the actual
duty functions of the chief of criminal law. The court concluded thatthis chief of criminal law did not perform a prosecutorial function where hiS duties were
primarily administrative in nature, consisting of monitoring pretrial and post-trial processing, making recommendations to the staff judge advocate
regarding disposition of a case, assigning trial counsel to cases, and rating trial counsel on efficiency reports. The chief of criminal law did not appear in
court as a trial counsel, did not direct the trial tactics or strategy of trial counsel, and did not routinely advise law enforcement personnel.

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investigation. 96
(b)
Substantive matters. Even when the article 32 investigating officer does go to a neutral legal advisor for advice, if the advice involves substantive matters, it cannot be given ex parte. 97 In theory, advice concerning purely procedural matters can be given ex parte; however, the distinction between substance and procedure is too ill- defined to be of practical use.98 The safest approach is to treat all advice as a matter of substance.

(c)
Ex parte communications. When a neutral legal advisor gives advice on substantive matters, the advice cannot be given ex parte. 99 Unfortunately, it is unclear just what makes a communication "ex parte." Specifically, when must the parties be given notice of the substantive advice sought and what forum must be utilized in providing the parties an opportunity to respond to the advice received?

The ABA Code of Judicial Conduct seems to sanction after-the-fact notice to the parties 100 while the ABA Standards for Criminal Justice and case law require prior notice to the parties. 101 Although no authority requires that the legal advice be given in the context of a full adversarial proceeding, 102 none of the cases discusses minimum acceptable procedures.
As a practical matter, the Government's interests are best protected by using procedures which fully document the context of all investigating officer— legal advisor communications. Once the defense fairly raises the issue of substantive ex parte advice, the Government bears the burden of showing by clear and convincing evidence that substantive matters were not discussed or that the accused was not prejudiced by the advice received. 103
(4) Future disqualification. Once an officer has served as an article 32 investigating officer in a case, he or she is disqualified from subsequently serving as trial counse1, 1°4 military judge, 1°5 court member, 106 or staff judge ad­vocate 107 with respect to that case. The investigating officer subsequently can serve as defense counsel only if
" For example, legal assistance officers, claims judge advocates, or administrative law specialists.
97 United States v. Grimm, 6 M.J. 890, 894 (A.C.M.R. 1979). 98 In United States v. Payne, 3 M.J. 354, 355 n.4 (C.M.A. 1977), the court cited "questions of the applicable burden of proof, evidentiary standards, and most critically, the legality of the search which produced the incriminating evidence as examples of substantive rather than procedural matters. In United States v. Grimm, 6 M.J. 890, 894 (A.C.M.R. 1979), Government counsel at trial and on appeal conceded that substantive advice was given "regarding the role a weapon would have to play to support an aggravated assault charge? In United States v. Saunders, 11 M.J. 912 (A.C.M.R. 1981), the article 32 investigating officer had an ex parte conversation with the accused's battalion commander regarding the accused's mental capacity and mental
responsibility. The court treated this as an impermissible ex parte communication.But see Judge Lewis' dissent:
I cannot believe that Congress intended that the full panoply of the American Bar Association Canons of Judicial Ethics be applicable to investigating officers. Few could find fault with the notion that an investigating officer loses his required neutrality and detachment where he is received ex parte substantive advice from the person who will later prosecute the case as occurred in Payne. Here the communication was with a non-prosecutor and conveyed the same information that later came before the investigating officer properly.
Id. at 916 (Lewis, J., dissenting).
99 United States v. Grimm, 6 M.J. 890 (A.C.M.R. 1979).
l rio Code of Judicial Conduct Canon 3A(4) (1972) provides that a judge may obtain the advice of a disinterested expert on the law ... if he gives notice to

the parties of the person consulted and the substance of the advice ...."
101 Standards for Criminal Justice, Special Functions of the Trial Judge § 6-2.: (1980) provide that no person may "discuss a pending case with the judge
ex parte, except after adequate notice to all other parties ...." In United States v. Grimm, 6 M.J. 890, 894 (A.C.M.R. 1979), the court, after finding that the

neutral legal advisor had discussed a substantive matter with the investigating officer, went on to conclude that li]nasmuch as counsel for the accused
and the prosecution were not given prior notice, we find a violation of Payne.'
102 In two concurring opinions, Judge Jones distinguished the article 32 hearing from a trial and suggested that:

The Article 32 investigating officer should be required to list in his report the names of all persons from whom he obtained legal advice on substantive questions, but he should not be required to obtain the advice in an adversary proceeding. This would convert the investigation into a 'mini-trial" and only cause delay without adding a concurrent benefit to the accused or the Government. United States v. Grimm, 6 M.J. 890, 896 (A.C.M.R. 1979) (Jones, J., concurring). See also United States v. Crumb, 10 M.J. 520, 528 n.3 (A.C.M.R. 1980) (Jones, J., concurring).
103 United States v. Payne, 3 M.J. 354, 357 (C.M.A. 1977).
Although we determine that the Article 32 investigating officer was acting in violation of the applicable standards of conduct for the judicial office he
served, it is nonetheless incumbent upon us to examine the record for a determination of whether the impropriety prejudiced the appellant. We are not unmindful of the inherent difficulty presented by requiring a defendant to demonstrate the prejudice resulting from improper actions by a judicial officer, the full extent or text of which he may be unaware in part or whole. We conclude that this is a matter requiring a presumption of prejudice. Absent clear and convincing evidence to the contrary, we will be obliged to reverse the case.
In Payne, the Government was able to meet the burden because of the extensive testimony of the article 32 investigating officer and because the officer
who rendered the advice prepared extensive notes outlining the matters discussed. The court concluded its decision, however, by warning that in "future
cases when testing for prejudice, we will resolve doubts against the judicial officer who participates in such a practice? Id. at 358.
104 UCMJ art. 27(a)(2).
106 UCMJ art. 26(d).
106 UCMJ art. 25(d)(2).

107 UCMJ art. 6(c) (investigating officer is disqualified from serving as staff judge advocate to any reviewing authority upon the same case); UCMJ art.
64(a) (investigating officer is disqualified from preparing the post-trial review); accord United States v. JON, 46 C.M.R. 95 (C.M.A. 1973) (article 32
investigating officer is disqualified from later drafting the post-trial review for the staff judge advocate); see also R.C.M 405(d)(1) (The investigating officer
is disqualified to act later in the same case in any other capacity?). But see United States v. Beard, 15 M.J. 768 (A.F.C.M.R. 1983). The article 32

investigating officer, who was subsequently made the staff judge advocate to the accused's special court-martial convening authority, was not "acting as a
staff judge advocate" where the only function he performed relating to the accused's case was the ministerial act of recommending changes in court­martial panel membership.

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requested by the accused)"
c. Counsel.
(1)
Government counsel. The appointing authority who directed the article 32 investigation may detail, or request an appropriate authority to detail, counsel to represent the Government at the investigation. 109 Counsel representing the Government appears as a partisan advocate and cannot function as the legal advisor to the article 32 investigation officer)" As a partisan advocate, the Government representative may question witnesses who appear at the article 32 hearing," examine any evidence considered by the investigating officer, 112 and argue for an appropriate disposition of the case. 113

(2)
Counsel for the accused. The article 32 investigation is a critical stage in the prosecution of a case and, therefore, the accused is entitled to be represented by counsel)" The accused's rights to counsel at the article 32 hearing are the same as they are at tria1 115 and generally include: (1) the right to be represented by a detailed military counse1; 116 (2) the right to be represented by individually requested military counsel if that counsel is reasonably available; 117 and (3) the right to be represented by civilian counsel at no expense to the United States Governrnent. 118

The accused must be advised of the right to be represented by counsel at the investigation 119 and the accused's elections regarding the right to counsel should be documented in the report of investigation)" Although the accused has the right to hire civilian counsel, the Government is not required to delay the investigation for an unreasonable
108 UCMJ art. 27(a)(2).
1°9 R.C.M. 405(d)(3)(A). UCMJ art. 32 is silent regarding the presence of Government counsel at the investigation. Originally the article 32 hearing was
treated as an ex parte proceeding in that the Government was not formally represented as a party. United States v. Samuels, 27 C.M.R. 280, 286 (C.M.A.
1959). In United States v. Young, 32 C.M.R. 134 (C.M.A. 1962), the legal advisor to the article 32 investigating officer attended the hearing and assisted
the investigating officer by examining witnesses and advising on legal rulings. The same legal advisor was subsequently detailed trial counsel and
prosecuted the case. The court sanctioned this practice holding that it did not violate article 27(a) because the legal advisor had not become the de facto
investigating officer, and the participation of the legal advisor or even a member of the prosecution was permissible so long as it did not displace or
encroach upon the impartiality of the investigating officer. In United States v. Weaver, 32 C.M.R. 147 (C.M.A. 1962) the court specifically approved the
practice of having a Government representative participate in the article 32 investigation.

The Article 32 investigation is an important part of court-martial procedure. Manifestly, the Government as well as the accused has an immediate and
. material interest in the proceedings. Although no provision of the Uniform Code or the Manual requires the Government to be present, its appearance may be desirable and helpful ... "we can find no fault" with the practice, which has the legitimate effect of making the investigation an adversary proceeding, presided over by the investigating officer.
Id. at 149 (citations omitted).
Based on Weaver, the 1969 Manual for Courts-Martial contained a specific authorization that if the accused is represented by counsel, the Government
may be represented by counsel with equivalent qualifications designated by the officer who directed the investigation, at the discretion of the latter.'

MCM,1969, para. 34c, DA Pam 27-2, Analysis of Contents, Manual for Courts-Martial, United States 1969, Revised Edition, 7-4 (July 1970). This
provision was later changed to simply provide that 'the government may be represented at the investigation by counsel designated by the officer who
directed the investigation." MCM, 1969, para. 34c (C6, 1 Sept. 1982).
11° United States v. Payne, 3 M.J. 354, 357 (C.M.A. 1977). The court specifically overruled United States v. Young, 32 C.M.R. 134 (C.M.A. 1962) an d its

progeny to the extent they sanctioned this practice.
1 " DA Pam 27-17, para. 1-2d.
112 R.C.M. 405(h)(1)(3).

113 DA Pam 27-17, para. 1-2d.
114 UCMJ art. 32(b) ("the accused has the right to be represented at that investigation as provided in ... Article 38 ... and in regulations prescribed under
that section"); R.C.M. 405(f)(4).

116 UCMJ art. 32(b); see also United States v. Tomaszewski, 24 C.M.R. 76 (C.M.A. 1957), where the court rejected the Government's argument that counsel could include nonlavryer officers.
mhe connection between the investigation and the trial itself is so close that we are of the opinion that Congress did not intend to differentiate
between the two in regard to the qualifications of counsel appointed for the accused. We conclude, therefore, that the accused is entitled to be
represented by the same kind of counsel to which he is entitled .at trial, namely, counsel qualified within the meaning of Article 27(b).

Id. at 79. For a detailed discussion of a military accused's right to counsel, see supra chap. 5.
116 UCMJ art. 38(b)(3)(A); R.C.M. 405(d)(2)(A).

117 UCMJ art. 38(b)(3)(8); R.C.M. 405(d)(2)(13); see also United States v. Courtier, 43 C.M.R. 118, 119 (C.M.A. 1971) (the right to the assistance of
counsel of one's own choice during the pretrial proceedings, when such counsel is reasonably available, is a substantial right entitled to judicial
enforcement). For a discussion of the procedures used in processing a request for individual military counsel and in determining when counsel is
"reasonably available."seeR.C.M. 506 and AR 27-10, para. 5-7.

. 118 UCMJ art. 38(b)(2); R.C.M. 405(d)(2)(c); see alsoUnited States v. Nichols, 23 C.M.R. 343 (C.M.A. 1957) (accused's right to be represented by civilian
counsel cannot be curtailed by a service-imposed obligation to obtain a security clearance for access to service classified matter).
176 UCMJ art. 32(a).

12° R.C.M. 405(j)(2)(A); See also DA Pam 27-17, para. 2-3; DD Form 457.

.
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amount of time to facilitate the retention of civilian counse1. 121
Counsel for the accused has the right to cross- examine witnesses at the investigation, 122 to compel production of reasonably available witnesses and evidence, 123 and to argue for an appropriate disposition of the case. 124
d. Other personnel. Interpreters and reporters may be detailed, as needed, at the direction of the convening authority who initiated the investigation. I25
16-4. Matters considered by the article 32 investigating officer.
a. Scope of the investigation. Article 32 requires the investigating officer to conduct a "thorough" investigation of all matters set forth in the charges and specifically directs that this include an inquiry as to the truth of the matters set forth in the charges, a consideration of the form of the charges, and recommendation as to the disposition which should be made of the case. 126
Article 32 does not provide an unlimited mandate to investigate criminal activity or criminal suspects, but rather should be limited to an investigation of issues raised by the charges and necessary to a proper disposition of the case. 127 The investigation may properly include an inquiry into the legality of a search, seizure, or confession, even though such an inquiry is not required 128 and the article 32 investigating officer need not rule on the admissibility of evidence.I 29 The investigation is not limited to an examination of witnesses and evidence mentioned in the allied documents accompanyinj the charges 136 but should include all reasonably available witnesses and evidence relevant to the investigation."'
b. Evidentiary considerations.
(1) Application of the Military Rules of Evidence. The Military Rules of Evidence, other than Rules 301, 302, 303, 305, and section V, do not apply in pretrial investigations. 132 If, during the investigation, the investigating officer
121 R.C.M. 405(d)(2)(c) ("The investigation shall not be unduly delayed for [the purpose of obtaining civilian counsel)"). See generally United States v. Brown, 10 M.J. 635 (A.C.M.R. 1980) (military judge did not abuse his discretion in denying a continuance for the accused to hire a civilian counsel where the accused had known for some time about his rights to counsel and the date of the scheduled trial; the Government had relied on the scheduled date to produce witnesses at great expense and inconvenience; and the nature of the delay was to resolve a fee problem); United States v. Bowie, 17 M.J. 821
(A.C.M.R. 1984) (military judge did not abuse his discretion in denying the accused a continuance to hire a civilian counsel where the accused had
already been given more than 2 months' delay, the accused was still unable to name a specific firm or counsel he desired to retain, and the Government
had gone to the expense of bringing witnesses from a substantial distance). But see United States v. Maness, 48 C.M.R. 512, 517 (C.M.A. 1974) (*Piny
in an extremely unusual case' should an accused be forced to forego civilian counsel.' On the facts of the case, it was error not to postpone the(article
32 hearing to allow the accused's retained civilian counsel to participate); United States v. Lewis, 8 M.J. 838 (A.C.M.R. 1980) (article 32 investigating
officer denied the accused a substantial right in failing to delay the investigation for a reasonable effort to seek out civilian counsel; although the accused
asked for no specific time delay, there was no indication that the request was made for an improper motive and there was no indication that a few days'
delay would have inconvenienced or prejudiced the interests of the Government).
122 UCMJ art 32(b): RCM 405(f)(8).
123 UCMJ art. 32(b); R.C.M. 05(f)(9), (10).
124 DA Pam 27-17, para. 3-31.
125 R.C.M. 405(d)(3). For a discussion of when a verbatim record is required, see infra para. 9-5c.
126 UCMJ art. 32(a); R.C.M. 405(e).
122 R.C.M. 405(a) discussion.
128 R.C.M. 405(e) discussion.

123 R.C.M. 405(i) discussion (an investigating officer may consider any evidence, even if that evidence would not be admissible at trial); R.C.M. 405(h)(2)
(an investigating officer is not required to rule on any objections made by counsel at the article 32 hearing).
133 R.C.M. 405(a) discussion.

131 See generally RCM 405(g).
132 Mil. R. Evid. 1101(d); R.C.M. 405(i). The military "rape shield -protections in Mit. R. Evid. 412 do not expressly apply to the article 32 investigation,
although the investigating officer arguably can afford similar protection to a rape victim by enforcing article 31(c), Mil. R. Evid. 303's prohibitions against

degrading questions. M.R.E. 303 analysis; R.C.M. 405(i) analysis. See also United States v. Martel, 19 M.J. 917 (A.C.M.R. 1985) (error for the investigating officer to consider matters covered by the marital privilege, Mil. R. Evid. 504(b)). Cr. United States v. Dagenais, 15 M.J. 1018 (A.F.C.M.R. 1983) (witness at an article 32 investigation could property refuse to answer questions concerning her alleged homosexuality where the questions were not material to the offenses being investigated and did not impact on the witness' credibility).
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suspects a military witness of committing an offense under the UCMJ, the investigating officer should comply with the warning requirements of Military Rule of Evidence 305. 133
(2)
Form of the evidence. All testimony at the article 32 investigation, except the testimony of the accused, 134 must be given under oath. 135 There is a preference for the personal appearance of witnesses and the actual production of relevant evidence, 136 but alternative forms of evidence are permissible under some circumstances. 137

(a)
Alternatives to sworn testimony. When a witness is not reasonably available to personally appear at the article 32 investigation, 138 the investigating officer can consider: (i) Sworn statements; (ii) Statements under oath taken by telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude that the witness' identity is as claimed; (iii) Prior testimony under oath; and (iv) Depositions of that witness. 139 Arguably, these alternative forms of evidence cannot be considered if the defense objects and the witness is reasonably available. 140 The investigating officer cannot consider unsworn statements, 141 stipulations of fact, stipulations of expected testimony, or offers of proof of expected testimony if the defense objects. 142

(b)
Alternatives to consideration of actual physical evidence. When the actual physical evidence is not reasonably available, 143 the investigating officer may consider testimony describing the evidence, or an authenticated copy, photograph, or reproduction of similar accuracy of the evidence. 144 Arguably, these alternatives cannot be considered if the defense objects and the actual physical evidence is reasonably available. 145

If the defense counsel objects, the investigating officer cannot consider a stipulation of fact or a stipulation of expected testimony concerning the evidence; a stipulation as to the contents of a document; an unsworn statement describing the evidence; or an offer of proof concerning pertinent characteristics of the evidence. 146 Arguably, other alternative forms of the evidence, that is, unauthenticated copies, photographs, or reproductions, can never be con­sidered. 147
133 UCMJ art. 31; Mil. R. Evid. 305; R.C.M. 405(h)(1)(A) discussion; See alsoUnited States v. Poole, 15 M.J. 883 (A.C.M.R. 1983) (article 32 investigating
officer is required to give rights warnings to a military witness when the investigator actually suspects that the person being questioned has committed an
offense or "when the totality of circumstances are such that the questioner reasonably should have harbored that suspicion"). In Poole, the accused was
convicted of committing perjury at the article 32 investigation of PFC Houck. PFC Houck was charged with being one of four soldiers who committed en
assault and robbery near the 1-2-3 Club on post. PFC Houck's alibi was that he had been in PVT Poole's barracks room all evening. The allied
documents accompanying the charges against PFC Houck contained several conflicting statements from PVT Poole. Two sergeants who escorted PVT
Poole to the MP station for questioning made statements saying that PVT Poole admitted being at the 1-2-3 Club and intervening in a fight involving
PFC Houck sometime during the weekend in question. In the sworn statement given to the military police, PVT Poole denied being near the 1-2-3 Club
on Saturday night and supported PFC Houck's alibi. The allied papers also contained a second statement given by PVT Poole to the military police
maintaining the alibi defense. This second statement was given after the military police advised Poole of his article 31 rights. The military police suspected
Poole of being involved in the assault and attempted robbery along with PFC Houck, 'and false swearing in his first statement. At PFC Houck's pretrial
investigation, PVT Poole again supported PFC Houck's alibi. The court held that the totality of the circumstances were not such that the investigating
officer should reasonably have suspected PVT Poole of an;' offense. The "mere existence of some circumstances that would suggest to a suspicious
mind that a witness might have been involved' in the offense being investigated is not enough to trigger the rights warning requirement. Id. at 887. The
court also indicated that, although the test is an objective standard, it was appropriate to consider that the article 32 investigating officer was not a trained
investigator, had not done an article 32 investigation before, and did not have a legal advisor present at the hearing. Cf. United States v. Williams, 9 M.J.
831 (A.C.M.R. 1980). PVT Williams was also convicted of committing perjury as a witness at an article 32 investigation. Unlike Poole, PVT Williams was
never implicated as being involved in the offenses being investigated. Instead, PVT Williams was a Government confidential informant who had made
preinvestigation statements inculpating a SP5 Johnson. PVT Williams was then called to testify as a Government witness at SP5 Johnson's article 32
investigation. At the article 32 investigation, PVT Williams had a'memory lapse" and was unable to remember the events being investigated and could not
recall making any previous statements: At William's court-martial (for AWOL and perjury), the defense argued that at some point during William's article
32 testimony, either the investigating officer or the Government representative should have recognized that Williams was lying and should have read
Williams his article 31 rights for perjury. The court held that article 31 applied to witnesses at an article 32 investigation when they are suspected of
having committed past criminal offenses, but article 31 did not apply to future offenses and did not require the interruption of testimony at the article 32
investigation to advise witnesses that if they continue, they subject themselves to possible perjury charges.

134 R.C.M. 405(0(12) (the accused has the right to make a statement in any form).
135 R.C.M. 405(h)(1)(A). For a suggested form of the oath to be administered, see R.C.M. 405(h)(1)(A) discussion.
135 R.C.M. 405(g)(2)(B) discussion.
137 See generally R.C.M. 405(g)(4), (5).
130 For a discussion of reasonable availability, seeR.C.M. 405(g)(2) and infra para. 16-4c(1)(a).
135 R.C.M.405(g)(4)(B).
140 The 1969 Manual contained the simple prohibition that 'Upon objection by the acused or his counsel, statements of unavailable witnesses which are

not under oath or affirmation will not be considered by the investigating officer? MCM, 1969, para. 34d. The 1984 Manual went further and attempted to
address consideration of various alternatives to testimony with more particularity. Although the drafters clearly did not intend these provisions to be more
restrictive than the standards contained in the 1969 Manual, a literal reading of R.C.M. 405(g)(4)(B) arguably is more restrictive. The intent of the drafters
was probably to acknowledge that if the defense objected and the witness was reasonably available, the witness had to be produced in addition to
consideration of the sworn statement or other recognized testimony alternative.
141 R.C.M 405(g)(4)(A)(vi);see also United States v. Samuels, 27 C.M.R. 280,287 (C.M.A. 1959) (a ''statement of a witness may be considered by the

investigating officer only if it is supported by oath or affirmation").
142 R.C.M.405(g)(4)(A).
143 For a discussion of reasonable availability, see R.C.M. 405(g)(2)(C).
144 R.C.M.405(g)(5)(B).
145 See supra note 135.
146 R.C.M. 405(g)(5)(A)•

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(c)
Consideration of matters outside the hearing. The investigating officer can consider other matters, such as a
personal observation of the crime scene, so long as the parties are informed of the other evidence that will be
considered and are given an opportunity to examine the evidence)"

c.
Defense evidence. At the pretrial investigation, the defense has broad rights to have reasonably available witnesses
and evidence produced, to cross-examine witnesses, and to present anything they may desire in defense or
mitigation)"

(1)
Witness production. The witness production provisions of article 32 provide the basis for a statutory confronta­tion guarantee and make the article 32 investigation a useful defense discovery too1. 150 The courts recognize that the
article 32 investigation does perform a legitimate, but not unlimited, discovery purpose)" Defining the limits of the
defense right to have witnesses produced at the investigation has provided the courts with some difficulty. The general
rule is that upon timely request by the accused "any witness whose testimony would be relevant to the investigation
and not cumulative, shall be produced if reasonably available." 152

(a)
Witnesses within 100 miles of article 32:"A witness is 'reasonably available' when the witness is within 100
miles of the situs of the investigation and the significance of the testimony and personal appearance of the witness
outweigh the difficulty, expense, delay, and effect on military operations of obtaining the witness' appearance." 153 This
balancing test should be applied to determine the"reasonable availability" of any v itness regardless whether the witness
will be called by the prosecution or the defense at tria1. 154 If the requested witness is not one which the prosecution is
going to call at trial, the defense has the burden of providing enough information to the investigating officer to
demonstrate the significance of the witness' testimony.I 55

A witness who would be unavailable for trial under Military Rule of Evidence 804(a) is per se "not reasonably available" for testimony at the article 32 investigation. 156
(b) Witnesses located more than 100 miles: The article 32 investigating officer makes the initial determination whether a military witness located more than 100 miles from the article 32 is reasonably available. 157 The witness' commander can "veto" the IO's determination. Production of civilian witnesses located more than 100 miles from the article 32 is within the discretion of the officer ordering the investigation. 158
147 See supra note 135. This interpretation has the anomalous effect of creating a more restrictive authentication requirement at the article 32 hearing
than at the actual court-martial despite the clear legislative intent that the Military Rules of Evidence should not encumber the pretrial investigation. 145 R.C.M. 405(h)(1)(B);see also United States v. Craig, 22 C.M.R. 466 (A.B.R. 1956) (error for the article 32 investigating officer to consider an Inspector General's report which he then refused to disclose to the defense counsel because of its -confidentiat classification).
149 UCMJ art.32(b) provides 'At the investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused.' 150 See, e.g., United States v. Samuels. 27 C.M.R. 280 (C.M.A. 1959); United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976); United States v. Roberts, 10
M.J. 308 (C.M.A. 1981). Although courts readily recognized that article 32 provides for a statutory confrontation, the exact difference has never been defined. As a general proposition, statutory confrontation under article 32 has a more liberal definition of unavailability which in turn triggers the admissibility of testimony alternatives which have a lower indicia of reliability than would be required at an actual trial. CompareUnited States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976) (balancing test for availability ... sworn statements as testimony substitute) with Ohio v. Roberts, 448 U.S. 56 (1980) (good faith effort by Government to procure the witness required ... testimony substitute required to have extra indicia of reliability).
151 United States v. Roberts, 10 M.J. 308, 311 (C.M.A. 1981) ("There is no doubt that a military accused has important pretrial discovery rights at an article 32 investigation. Nevertheless,. such pretrial discovery is not the sole purpose of the investigation nor is it unrestricted in view of its statutory origin."). See also United States v. Nichols, 8 C.M.A. 119, 23 C.M.R. 343 (1957):
There is a distinct advantage in having a dress rehearsal, and Congress has given that privilege to an accused. When it is taken away, among other
things, the opportunity to probe for weaknesses in the testimony of witnesses is denied; the probability of developing leads for witnesses who may be
of assistance to the defense is decreased.

Id. at 352.
152 R.C.M.405(g)(1)(A).
153 R.C.M. 405(g)(1)(A). The '100-mile" bright line rule is intended to simplify the 10's determination ohreasonably available."
154 United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976).
155 United States v. Thomas, 7 M.J. 655 (A.C.M.R. 1979) (the defense request that a confidential informant be brought from the United States to testify at

an article 32 hearing in Germany was property denied where the Government did not intend to call the informant as a witness, and the defense could only
speculate that the informants testimony might support a possible entrapment defense); United States v. Martinez, 12 M.J. 801 (N.M.C.M.R. 1981) (the
defense request that members of a vessel's crew be brought from South America to testify at an article 32 hearing in Charleston, South Carolina, was
properly denied where the Government did not plan to call the individuals as witnesses, and the defense wanted to question them regarding the character
of the accused and the victim but was unable to do more than speculate as to the significance of their testimony).
156 R.C.M. 405(g)(1)(A). Mil. R. Evid. 804(a) provides that a witness is unavailable when the witness:

(1)
is exempted by ruling of the military judge on the ground of privilege from testimony concerning the subject matter of the declarant's statement; or

(2)
persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the military judge to do so; or (3)
testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of
death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the declarants statement has
been unable to procure the declarants attendance ... by process or other reasonable means; or (6) is unavailable within the meaning of (UCMJ)

Article 49(d)(2).
157 R.C.M.405(g)(2)(A)• 158 R.C.M. 405(g)(1)(A) (Analysis).
162.
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Any determination by the investigating officer or the witness' immediate commander that the witness is not reasonably available is reviewable at trial by the military judge.I 59
(c) Civilian witnesses. As a general proposition, a civilian witness cannot be compelled by subpoena to attend an article 32 investigation.I 60 If the civilian witness is employed by the United States Government and the article 32 investigation concerns matters which are related to the civilian's job, the civilian witness can be ordered to testify as an incident of employment. 16I If the civilian witness is a foreign national, compulsion to testify at an article 32 investigation would be covered by local law. 162
Although a civilian witness may not be compelled to testify, if the witness is reasonably available they may be invited to attend, 163 and when previously approved by the general court-martial convening authority,I 64 they may be paid transportation expenses and a per diem allowance.I 65 As an alternative, civilian witnesses possibly can be subpoenaed to a deposition proceeding. 166
(d)
Expert witnesses. The Manual contains no separate provisions concerning the production of expert witnesses at the article 32 investigation. Although at least one court of review has attempted to treat expert witnesses as a different category 167 the better view is that their production should be governed by the same reasonable availability balancing test applicable to other witnesses.

(2)
Evidence production. Upon timely request by the accused, any document or physical evidence "which is under the control of the Government and which is relevant to the investigation and not cumulative shall be produced if

" 168
reasonably available.
"Reasonable availability" is initially determined by the investigating officer by applying a balancing test weighing the significance of the evidence against the difficulty, expense, delay, and effect on military operations of obtaining the evidence.I 69 If the release of the evidence is privileged under section V, Military Rules of Evidence,I 70 it is not reasonably available. 171
159
Id. 166 R.C.M. 405(g)(2)(B) discussion. This principle has been generally accepted in prior Manuals and in case law. See, e.g., MCM, 1951, para. 34d, United States v. Chuculate, 5 M.J. 143 (C.M.A. 178). But seeUnited States v. Roberts, 10 M.J. 308, 310 n.1, 311 n.3 (C.M.A. 1981), where the court hinted that there may be some authority to support subpoena power at the article 32 investigation. Citing the Index and Legislative History. Uniform Code of Military Justice, Hearings Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. on H.R. 2498, pp. 996-98. the court opined that "the legislative hearings on Article 32 provide some indication that the use of a subpoena at the pretrial investigation was contemplated in extraordinary situations' 10 M.J. at 311 n.3. Although the majority apparently saw the issue as being open, the better view was probably expressed by Judge Cook in the concurring opinion, "I see no justification for the suggestion, in footnotes 1 and 3, that there is uncertainty in military law as to whether a subpoena may issue to compel a civilian witness to appear and testify at an Article 32 investigation.' 10 M.J. at 316 (Cook, J., concurring).
161
see, e.g., Weston v. Department of Housing & Urban Development, 724 F2d 943 (Fed. Cir. 1963) (Federal employee can be removed from his or her position for failure to cooperate in an integral agency investigation relating to matters which affect the efficiency of the agency; If the employee's testimony would tend to be incriminatory, the testimony can still be compelled by granting the employee immunity from prosecution).
162 The U.S. military has no inherent authority to compel a foreign national to appear before an article 32 hearing being held overseas: however, local status of forces agreements may provide a mechanism for compelling attendance through host nation procedures.See generally United States v. Clements, 12 M.J. 842 (A.C.M.R. 1982).
163 R.C.M. 405(g)(2)(B) discussion. 164 AR 27-10, para. 5-12. No civilian witness will be requested to appear at an article 32 investigation until after approval by the GCM convening authority. The authority to approve the payment of transportation expenses and per diem may be delegated to the investigating officer or the GCM convening authority's staff judge advocate. Only the GCM convening authority can disapprove the payment of expenses to an otherwise reasonably
available civilian witness. 166 R.C.M. 405(g)(3) authorizes the payment of transportation expenses and a per diem allowance. Procedures to effect payment are to be prescribed by the Secretary of a Department. See, e.g., AR 27-10, para. 5-12; DOD Joint Travel Regulations, paras. C3054, C6000. 166 UCMJ art. 47(a)(1). While it is clear that a civilian witness can be subpoenaed to attend a deposition proceeding pertaining to a court-martial case which has been referred to trial, it is less clear whether a civilian may be subpoenaed to provide a deposition for use at an article 32 investigation. For a general discussion of the issue, see United States v. Roberts, 10 M.J. 308, 316 (C.M.A. 1981) (Cook, J., concurring). R.C.M. 702 specifically provides that a witness may be deposed so that the deposition may be considered at the article 32 investigation. A request for deposition may only be denied 'for good cause.-Good cause' normally includes the fact that the witness will be available for trial, however, the drafters contemplate the use of depositions when there has been an improper denial of a witness request at an article 32 hearing or when an essential witness is unavailable to appear at the article 32
hearing. R.C.M. 702 discussion. But see R.C.M. 702(a) analysis (depositions are intended for exceptional circumstances when necessary to preserve testimony and are not generally to be used as a discovery device). 167 United States v. Taylor, CM 832910 (N.M.C.M.R. 21 Dec. 1983). In Taylor, the defense requested that Mr. Flynn, a fibers expert, be produced to
testify at the article 32 investigation. The defense had not previously interviewed the fiber expert and did not articulate any specific reason why the
expert's presence was necessary. The court refused to apply theLedbetter balancing test for 'reasonable availability' in reviewing the nonproduction of Mr. Flynn. Instead, the court held that the defense had not met the threshold loundationar requirements of United States v. Vietor, 10 M.J. 69 (C.M.A. 1980). In Vietor, the admission of a laboratory report into evidence at trial did not give the accused the automatic right to the attendance of the person who performed the tests. Instead the defense counsel was required to show that the expert's testimony would reveal some 'chink in the competence or credibility of the analyst, or cast doubt, in the slightest degree, on the reliability of the processes or the analysis or its results' 10 M.J. at 72. But see United States v. Broadnax, 23 M.J. 389 (C.M.A. 1987) (military judge erred in admitting laboratory report concerning handwriting analysis without requiring defense requested live testimony), distinguished by the court from Vietor based upon the subjective nature of the handwriting analysis. The Navy-Marine Court of Military Review acknowledged the"right to discovery" element of the article 32 investigation but held that it was "not so broad as to subsume the
Vietor foundational rule."
168 R.C.M. 405(g)(1)(8). Although the Jencks Act is not expressly applicable to pretrial investigations (R.C.M. 914), the defense can use this provision to
discover pretrial statements made by Government witnesses.
169 R.C.M. 405(g)(2)(C). But cf. United States v. Jackson, 33 C.M.R. 884. 890 (A.F.B.R. 1963) Mlle conclude, as a matter of fundamental fairness under

the general concept of 'military due process" ... that the rights accorded under the 'Jencks Statute' should be available to an accused during an Article
32 investigation and we so hold.').
170 Section V privileges are applicable to article 32 investigations. Mil. R. Evid. 1101(d).
171 R.C.M.405(g)(1)(B).

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The investigating officer's determination that evidence is reasonably available can be reversed by the custodian of the evidence. 172 Any determination by the investigating officer (or the custodian of the evidence) that the evidence is not reasonably available is reviewable at trial by the military judge.I 73
(3) Testimony of the accused. At the article 32 hearing, the accused has the right to remain silent 174 or to make a statement in any form. 175 At trial, the trial counsel may not directly produce evidence (or comment) on the fact that the accused elected to remain silent at the article 32 investigation; 176 however, the accused's silence at the pretrial investigation may be raised collaterally if the Government attempts to show that the accused's in-court testimony was recently fabricated. 177
16-5. Procedure
a. Sequence of events. The article 32 investigation was originally designed to be an informal proceeding with relaxed rules of evidence. 178 Although the Military Rules of Evidence generally do not apply,I 79 the adversary nature of the current proceedings tends to make the hearing more fonnal. 18° The appointing authority has the power to prescribe specific procedures to be followed in conducting the investigation. 181 If the appointing authority does not provide procedural guidance or if (as is usual) the appointing authority directs the use of DA Pam 27-17 182 as procedural guidance, the investigating officer will have broad discretion in determining the sequence of events necessary to complete the investigation. The investigation may extend over as many sessions as necessary to thoroughly investigate the charges.I 83 The investigating officer is free to determine the order in which the witnesses and evidence are presented)" and the order in which individual witnesses will be questioned by the investigating officer and counsel. 185
Prior to commencement of any investigation the accused must be informed of the charges under investigation,I 86 the identity of the accuser, 187 the witnesses and other evidence known to the investigating officer,I 88 the purpose of the investigation,I 89 and the right against self— incrimination)"
b. Timeliness of the investigation. The investigating officer is charged with conducting the investigation as ex­peditiously as possible and issuing a timely written report of the investigation. 191 Normally duties as an article 32 investigating officer take priority over all other assigned duties. 192 Although there are no hard and fast time limits for conducting a thorough investigation, the appointing authority will typically set a deadline as part of the procedural guidance to the investigating officer. 193 If the accused is ordered into arrest or confinement, the charges and the report
172 R.C.M.405(g)(2)(C).
173 R.C.M. 405(g)(2)(C); R.C.M. 906(b)(3). Disagreement between the investigating officer and the custodian of the evidence can also be resolved in

command channels. R.C.M. 405(g) analysis.
124 R.C.M. 405(0(7).
175 R.C.M. 4050)(12). Although the Manual does not specify what forms the accused's statement may take, the broad language used is probably intended

to include all the traditional testimonial options, e.g., sworn statement, personal unsworn statement, and unsworn statement through counsel.176 See. e.g.. United States v. Stegar, 37 C.M.R. 189 (C.M.A. 1967); United States v. Tackett, 36 C.M.R. 382 (C.M.A. 1966); United States v. Surtles, 15 . M.J. 972 (AC.M.R. 1983); United States v. Langford, 15 M.J. 1090 (A.C.M.R. 1983). 177 United States v. Fields, 15 M.J. 34 (C.M.A. 1963); United States v. Reiner, 15 M.J. 38 (C.M.A. 1983); United States v. Fitzpatrick, 14 M.J. 394 (C.M.A. 1983). These three cases all deal with a similar scenario: the accused remained silent at the article 32 investigation; all (or substantially all) of the Government's evidence was presented at the article 32 hearing, and at trial the accused testified to an exculpatory version of the facts which, to the maximum extent possible, was consistent with, or fit 'between the cracks" of, the Government evidence. On cross-examination of the accused, the trial counsel elicited testimony: (1) that the accused had an opportunity to hear all of the Government's case at the article 32 investigation; (2) that since the pretrial investigation, the accused had a long time to prepare a defense; and (3) that the in-court testimony at trial was the first time the trial counsel had heard the accused's version of the facts. The defense argued that this cross-examination amounted to an impermissible comment on the accused's silence at the article 32 investigation. The Court of Military Appeals disagreed, holding that the totality of the cross-examination was not designed to
highlight the accused's exercise of his right to remain silent. Instead, the trial counsel was properly showing that the accused had the motive and the
opportunity to fabricate a version of the facts consistent with the Government evidence.
178 See, e.g., United States v. Samuels, 27 C.M.R. 280 (C.M.A. 1959) (comparing the article 32 hearing to its Federal counterpart, the Federal preliminary

examination, the court endorsed the Federal position that 'proceedings in a preliminary examination are not expected nor required to be as regular and
formal as in a final trial.").
179 Mil. R. Evid. 1101(d).

188 The article 32 investigation was originally an ex parte proceeding with no Government representative present. Now R.C.M. 405(d)(3) specifically
provides for the appointment of counsel to represent the Government.
181 R.C.M. 405(c) (so long as the procedural guidance is not inconsistent with the Rules for Courts-Martial).
182 See generallyDA Pam 27-17.
183 DA Pam 27-17, para. 2-4b.
184 Id.

185 See DA Pam 27-17, app. F, for suggestions regarding the examination of witnesses at the article 32 hearing.
188 UCMJ art. 32(b); R.C.M. 405(f)(1);see also DA Pam 27-17, app. B, for a sample notification letter informing the accused of rights afforded at the

article 32 investigation; DA Pam 27-17, app. A, for a boilerplate procedural guide to be used to advise the accused of rights at the article 32 hearing; and
DD Form 457.
187 R.C.M. 405(f)(2).
188 R.C.M. 405(0(5).

189 R.C.M. 405(0(6).
190 UCMJ art 32(b); RCM 405(0(7).
191 R.C.M. 4050M; DA Pam 27-17, para. 2-1.
192 DA Pam 27-17, para. 1-2a.
193 R.C.M. 405(c); DA Pam 27-17, para. 2-1.

164.
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of investigation "should" be forwarded to the general court-martial convening authority within 8 days after the restraint)" Generally, time spent conducting the article 32 investigation is chargeable to the Government for speedy trial purposes,I 95 so the investigating officer should maintain a chronology documenting all delays. 196
c. Control of the proceeding.
(1)
Presence of the accused. The accused will normally be present throughout the taking of evidence. 197 The only two exceptions to this general rule are voluntary absence after being notified of the time and place of the proceeding, 198 and removal by the investigating officer for disruptive conduct after being warned that continued disruptive conduct will cause removal)"

(2)
Presence of the counsel for the accused. The accused is entitled to the presence and assistance of counsel throughout the hearing. 200 Civilian defense counsel cannot be excluded from the investigation because of the lack of a security clearance."'

(3)
Presence of the public. Although there is a preference for a "public" pretrial investigation, 202 the Manual provides that "access by spectators to all or part of the proceeding may be restricted or foreclosed in the discretion of the commander who directed the investigation or the investigating officer." 203 This provision makes it seem like there is unfettered discretion to deny the public access to the article 32 hearing. The better view, based on case law, 204 is that the proceedings should be closed only if there is a reasonable, articulable reason why closure is required, 205 and the closure should be limited to only those portions of the investigation where it is necessary. 2°6 In the event that portions of the investigation are closed to the public, the investigating officer or appointing authority must ensure that the basis for the closure is clearly articulated in the written report of investigation." 7

d.
Report of investigation. Article 32 provides that "if the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused."208 The Manual goes further and specifies that the report of investigation shall include:

(A)
A statement of names and organizations or addresses of defense counsel and whether defense counsel was
present throughout the taking of evidence, or if not present the reason why;

(B)
The substance of the testimony taken on both sides, including any stipulated testimony;

194 UCMJ art. 33. Failure to comply with the eight-day limitation does not necessarily result in any remedy for the accused. See generally United States v. Rogers, 7 M.J. 274 (C.M.A. 1979); United States v. Nelson, 5 M.J. 189 (C.M.A. 1978). 195 United States v. Talavera, 8 M.J. 14 (C.M.A. 1979) ("We ... start with the concept that all article 32 time is chargeable to the Government, unless it can establish that one or more portions thereof are excludable because the ''attendant circumstances" were such that more time than "former was required for each part?) See United States v. Cook, 23 M.J. 882 (A.F.C.M.R. 1987) for an application of the rule enunciated in Talavera. Moreover, no case law specifically excludes time spent conducting the article 32 investigation from Government accountability under the "90-day rule" of United States
v. Burton, 44 C.M.R. 166 (1971). The 1984 Manual provides for a regulatorr120-day rule" and specifically purports to exclude from Government accountability 'any period of delay resulting from a delay in the Article 32 hearing' under certain conditions. R.C.M. 707(c)($). This provision has been very strictly an narrowly constructed by the courts, however. See, e.g., United States v. Kuelker, 20 M.J. 715 (N.M.C.M.R. 1985) (per curiam) (delay charged to Government where prosecutor did not request continuance from investigating officer or appointing authority); see also United States v. Cook, 27 M.J. 212 (C.M.A. 19C8) (defense request that Government produce its witnesses for cross-examination not a request or consent to delay); Jnited States v. Broden, 25 M.J. 580 (A.C.M.R. 1987) (defense objecte to investigating officer considering unauthenticated statement, resulting delay in proceedings to obtain testimony charge to Government).
198 R.C.M. 405(j)(2)(F); DA Pam 27-17, para. 2-1.
197 R.C.M. 405(0(3).
196 R.C.M. 405(h)(4)(A).
199 R.C.M.405(h)(4)(B).
200 R.C.M. 405(f)(4).
201 United States v. Nichols, 23 C.M.R. 343, 394 (C.M.A. 1957) (1T]he accused's right to a civilian attorney of his choice cannot be limited by a service­imposed obligation to obtain clearance for access to service classified matter.").
202 R.C.M. 405(h)3) discussion.
203 R.C.M. 405(h)(3).
204 See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (a qualified first amendment right of access attaches to preliminary hearings in
California); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (extends the sixth amendment right to a "public trier to voir dire proceedings;

Waller v. Georgia, 467 U.S. 39 (1984) (extends the sixth amendment right to a"public friar to pretrial suppression hearings). But see MacDonald v. Hodson, 42 C.M.R. 194 (C.M.A. 1970). in MacDonald the accused, Captain Jeffrey MacDonald, sought a writ of injunction and temporary restraining order enjoining the article 32 investigating officer and the appointing authority from closing his pretrial investigation to the public. The court denied the petition, holding that the article 32 investigation was not a "Mar within the meaning of the sixth amendment. It should be noted, however, that this decision predates recent Supreme Court cases in the area and that the court in MacDonald relied in part on the fact that at the time the article 32 investigation was an ex parte and not an adversarial proceeding. 299 See, e.g„ R.C.M. 405(h)(3) discussion ("closure may encourage complete testimony by an embarrassed or timid witness"); R.C.M. 405(h) analysis (which suggests looking to R.C.M. 806 for examples of some reasons why a pretrial investigation hearing might be closed); Press-Enterprise v. Superior Court, 106 S. Ct. 2735 (1986) ("the hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's free trial rights"). 206 Even if the article 32 investigation were held to be a 'trial" within the meaning of the sixth amendment right to a public trial, the right to an open proceeding is not absolute. The right to a public trial may give way to overriding concerns such as ensuring that the accused will have a fair trial or protecting the Government from disclosure of sensitive information. If the article 32 investigation is airier closure is still permissible under Waller v. Georgia, if: (1) there is an overriding interest likely to be prejudiced; (2) closure is tailored to a specific harm; (3) the article 32 investigating officer considers reasonable alternatives; and (4) the article 32 investigating officer articulates the basis for closure "on the record?
207 id
238 UCMJ art. 32(b).
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(C)
Any other statements, documents, or matters considered by the investigating officer, or recitals of the substance or nature of such evidence;

(D)
A statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense or was not competent to participate in the defense during the investigation;

(E)
A statement whether the essential witnesses will be available at the time anticipated for trial and the reasons why any essential witness may not then be available;

(F)
An explanation of any delays in the investigation;

(G)
The investigating officer's conclusion whether the charges and specifications are in proper form;

(H)
The investigating officer's conclusion whether reasonable grounds exist to believe that the accused committed the offenses alleged; and

(I)
The recommendations of the investigating officer, including disposition. 209

Normally, the report of investigation will consist of a completed DD Form 457 (Investigating Officer's Report), 21° and an attached summary of the witnesses' testimony. 211 There is no requirement for, and the accused has no right to, a verbatim transcript of the witnesses' testimony. 212 The appointing authority has the discretion to order a verbatim transcript and should normally do so in particularly complex or serious cases, or when it is necessary to preserve a witness' testimony for later use at tria1. 213
When there is no verbatim transcript authorized, the investigating officer is responsible for preparing a summary of each witness' testimony. 214 Typically, a legal clerk or some other assistant will be present at the hearings to assist in preparing this summary. If substantially verbatim notes, or tape recordings, of a witness' testimony are made to assist in preparing the report of investigation, they should be preserved until completion of the trial 2 15 The accused has no right to tape record the article 32 proceeding but taping may be permitted as a matter within the investigating officer's discretion.216 The substance of a witness' testimony which is produced for the report of investigation should, whenever possible, be shown to the witness so that the witness can sign and swear to the truth of the summary. 217 When the article 32 report of investigation is complete, a copy must be furnished to the appointing authority who will in turn ensure that a copy is served on the accused. 218
209 R.C.M. 4050)(2).
210 R.C.M. 4050)(2) discussion; DA Pam 27-17, para. 4-1.
211 R.C.M. 405(j)(2)(B)•
212 United States v. Allen, 18 C.M.R. 250 (C.M.A. 1955). In Allen, the defense challenged the article 32 report of investigation based on the omission of

some portions of witness testimony. Interpreting the article 32(b) requirement that the "substance" of the testimony be included in the report, the court
held that it was:
manifest that this phrasing authorizes an impartial condensation of the information obtained from witnesses during this stage of the proceedings ....
[I]t was not the Congressional intendment that the summaries of testimony taken during a proceeding held in conformity to Article 32 must of
r.lcessity reflect every clue which might possess meaning for a Sherlock Holmes.
Allen, 18 C.M.R. at 255. See also United States v. Matthews, 13 M.J. 501 (A.C.M.R. 1982) (where retained civilian defense counsel voluntarily elected not to attend the article 32 hearing and the accused was instead represented by detailed military counsel, the accused was not denied any sixth amendment right to effective assistance of counsel when the Government failed to order a verbatim transcript of the article 32 investigation); United States v. Frederick, 7 M.J. 791 (N.C.M.R. 1979).
213 R.C.M. 405(c); see generally Mil. R. Evid. 804(b)(1); supra para. 16-2c. 214 R.C.M.4050)(2)(B).
215
R.C.M. 405(h)(1)(A) discussion. See generally R.C.M. 914 (codification of Jencks Act); United States v. Thomas, 7 M.J. 655 (A.C.M.R. 1979) (the Jencks Act, 18 U.S.C. § 3500 (1982). is applicable to testimony given at an article 32 investigative hearing). InThomas, a court reporter made tape
recordings of the witnesses' testimony at the article 32 hearing to assist the reporter in providing the investigating officer a summarized transcription. The trial defense counsel specifically requested preservation of the tapes until final disposition of the charges. Due to a breakdown in communication between the investigating officer and the court reporter, the tapes were recorded over. When the Government witnesses testified at trial, the defense counsel
requested production of the tapes pursuant to the Jencks Act or in the alternative moved to strike the Government witnesses' testimony from the record (the prescribed statutory remedy for Jencks Act violations). The court held that, although the Jencks Act applied to tapes of article 32 testimony, there was no prejudice in this case and the testimony need not be stricken. In finding a lack of prejudice, the court noted the ample opportunity defense counsel had to observe, listen to, and cross-examine the witnesses, and pointed out that the testimonial summaries contained in the article 32 report of investigation had only slight variances from the tape recordings; see also United States v. Scott, 6 M.J. 547 (A.F.C.M.R. 1977) (the Jencks Act was applied to tape recordings of article 32 testimony and the court held that the testimony of Government witnesses should have been stricken at trial where:
(1) the Government had a duty under applicable Air Force regulations to preserve the tapes; (2) the Government could not claim any 'good faith' loss because of the negligence of Government officials in handling the tapes; and (3) the error was not harmless because the summaries of the witnesses' testimony contained in the report of investigation were inadequate to use as impeachment vehicles); United States v. Patterson, 10 M.J. 599 (A.F.C.M.R. 1980) (in evaluating whether the negligent destruction of article 32 tapes prejudiced the accused or was harmless error, the court should look at whether the summarized statements made by the investigating officer substantially incorporated theftestimony of the witness). Cf. United States v. McDaniel, 17
M.J. 553 (A.C.M.R. 1983) (no Jencks Act issue was raised where the legal clerk attempted to record testimony at the article 32 investigation but produced only blank tapes due to a lack of familiarity with the equipment; the blank tapes did not constitute a 'statement" within the meaning of the Jencks Act; the sketchy written notes by the legal clerk were also norstatements" where they were not substantially verbatim and they were never signed or adopted by the witnesses).
218 United States v. Milan, 16 M.J. 730 (A.F.C.M.R. 1983); United States v. Svoboda, 12 M.J. 866 (A.F.C.M.R. 1982); United States v. Rowe, 8 M.J. 542
(A.F.C.M.R. 1979).
217 R.C.M. 405(h)(1) discussion. See also United States v. Goda, 13 M.J. 893 (N.M.C.M.R. 1982) (Manual provision fin 1969 MGM] providing that the
summarized testimony should be adopted by the witness under oath is not mandatory, but rather, is advisory in nature).
218 R.C.M. 4050)(3).

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16-6. Nature of the article 32 investigation
a. General. Because the article 32 pretrial investigation is sui generis, having no exact counterpart in any civilian
criminal jurisdiction, 219 courts have struggled to define the precise nature of the proceeding.

Article of War 70 (1920), the precursor to UCMJ article 32, was the subject of extensive litigation in Federal district
court based on writs of habeas corpus from soldiers alleging errors in their pretrial investigations 2 20 Initially, a
majority of the Federal district courts dealing with the issue held that the military's failure to provide an accused with
all the rights guaranteed in Article of War 70 constituted either "jurisdictional error" 221 or a denial of due process. 222
223Eventually, the Supreme Court addressed the nature of the military pretrial investigation in Humphrey v. Smith,
holding that defects in the investigative procedures were nonjurisdictional.
Based on Humphrey v. Smith, the drafters of the Uniform Code of Military Justice specifically provided that the
"requirements of ... [Article 32] are binding on all persons administering this chapter but failure to follow them does
not constitute jurisdictional error."224
Although defects in the article 32 investigation are not jurisdictional, courts have consistently maintained that the
pretrial investigation is a "judicial proceeding" 225 and that it is "not a mere formality" 226 but rather is "an integral part
of the court-martial proceedings"227 providing the accused with "substantial pretrial rights." 228
Defining the nature of the article 32 investigation involves much more than merely a semantical exercise in assigning labels. Whether the proceedings are categorized as "judicial," "nonjurisdictional," or as"a substantial pretrial right" has practical consequences impacting on how the proceedings must be conducted and affecting what remedies are available to an accused who has been afforded a less-than-perfect pretrial investigation.
b. Adequate substitutes for the article 32 investigation. No article 32 investigation is necessary if the subject matter of the charged offenses has already been investigated at a proceeding which afforded the accused the opportunity to be present, to be represented by counsel, to cross-examine available witnesses, and to present matters in his or her own behalf.229 After being officially informed of the charges, the accused does have the right to demand further investiga­tion to recall witnesses for further cross-examination and to offer any new evidence. 230
When an article 32 investigating officer discovers through the presentation of evidence at the hearing that the accused has committed additional uncharged offenses, additional charges may be referred to trial along with the original charges without conducting an additional article 32 investigation unless specifically requested by the ac­cused.231
c. Waiver of the article 32 investigation. The accused may waive the right to an article 32 investigation. 232 The waiver may be an explicit waiver of any investigation or an implicit waiver by failure to object to a defective
219 .See supra notes 5 and 6.See also United States v. Schaffer, 12 M.J. 4 25, 530 (C.M.A. 1982) (Fletcher, J., concurring) ("An Article 32 investigation is akin to a grand jury indictment or a preliminary examination, not a brother but a cousin.").
226 See, e.g., Henry v. Hodges, 7d F. Supp. 968 (S.D.N.Y. 1948); Anthony v. Hunter, 71 F. Supp. 823 (0. Kan. 1947); Hicks v. Hiatt, 64 F. Supp. 238
(M.D. Pa. 1946).
221 See, e.g., Henry v. Hodges, 76 F. Supp. 968 (S.D.N.Y. 1948) jurisdictional error for military not to provide the accused a "thorough and impartiarin­vestigation in accordance with Article of War 70 when the accuser in the case was also appointed as the investigating officer). 222 See, e.g., Anthony v. Hunter, 71 F. Supp. 823, 831 (D. Kan. 1947) (the court found error in a general court-martial conviction because the accused
was not afforded the opportunity to cross-examine available witnesses at the pretrial investigation as guaranteed by Article of War 70. In ordering the accused's release from detention, the court held that 'whether failure to do the things required be construed as a defect precluding the acquiring of jurisdiction or whether the failure be held to deprive the accused of due process contemplated by organic law, the result is the same"); Hicks v. Hiatt, 64
F. Supp. 238, 249 (M.D. Pa. 1946) (the accused was denied due process of law when the investigating officer failed to develop, or allow the defense to develop, testimony concerning the alleged rape victim's bad moral character). But seeWaide v. Overlade, 64 F.2d 722 (7th Cir. 1947) (alleged relaxations
of pretrial investigation requirements were not of a nature to seriously impair any of the accused's fundamental constitutional rights).
223 336 U.S. 695, 700 (1949) ("We hold that a failure to conduct pre-trial investigations as required by article 70 does not deprive general courts-martial of
jurisdiction so as to empower courts in habeas corpus proceedings to invalidate court-martial judgments.").

224 UCMJ art. 32(d); see generally Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 998(1949);Hearings on S. 857 Before the Senate Comm. on Armed Services, 81st Cong., 1st Sess. 170 (1949).
226 See, e.g., United States v. Payne, 3 M.J. 354, 355 n.5 (C.M.A. 1977) (l* has long been recognized that the investigation under Article 32 is judicialin nature .... Clearly for that premise to have viability, the investigating officer must be viewed a a judicial officer, and function accordingly."); United States v. Samuel, 27 C.M.R. 280, 286 (C.M.A. 1959) ('It is judicial in nature'); United States v. Nichols, 23 C.M.R. 343, 348 (C.M.A. 1957) ("Its judicialcharacter is made manifest by the fact that testimony taken at the hearing can be used at the trial if the witness becomes unavailable."). 226 United States v. Nichols, 23 C.M.R. 343, 348 (C.M.A. 1957).
227 Id.
226 See, e.g., United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958). But see United States v. Bramel, 29 M.J. 958 (A.C.M.R. 1990) ("Although the-article32, UCMJ, pretrial investigation is an important pretrial right it is not a critical stage or crucial step in the trial. The 6th amendment right of face-to-face confrontation in Cox v. Iowa did not apply to pretrial investigation.').
22.6 UCMJ art. 32(c); R.C.M. 405(b).See generally United States v. Gandy, 26 C.M.R. 135 (C.M.A. 1958) (commander's board of investigation appointed to
investigate the theft of clothing from the ship's clothing sales store satisfied the requirements of article 32(c)). 236 UCMJ art. 32(c); R.C.M. 405(b).
231 See, e.g., United States v. Lane, 34 C.M.R. 744 (C.G.B.R. 1964) (but if the investigating officer prefers the additional charges and thereby becomes
the accuser, he or she is disqualified from presiding over any additional sessions of the investigation that may be demanded by the accused); United
States v. Holstrom, 3 C.M.R. 910 (A.F.B.R. 1967) (the fact that the investigating officer of the prior investigation became the accuser for the subsequent

charges is not by itself error). •
232 R.C.M. 405(k); see alsoUnited States v. Frentz, 21 M.J. 813 (N.M.C.M.R. 1985).

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investigation.233 Relief from such waiver is available only upon a showing of good cause. 234 A change in the accused's plea from guilty to not guilty itself is not sufficient "good cause" to require relief from a previous waiver, at least where the waiver is not a condition of a pretrial agreement. 235 Waiver may be made a condition of a pretrial agreement236 so long as the accused freely and voluntarily entered into the agreement. 237 An accused's offer to waive the article 32 investigation is not binding on the Government. 238
d. Treatment of defects. One of the consequences of having the clear but unembellished congressional mandate that
"defects in the Article 32 investigation are not jurisdictional," 239 is that the President and the courts are left to fashion
guidelines for granting relief to cure defects which are raised at the trial and appellate levels. Some basic guidance is
provided in the legislative history to article 32(d):

There has been a considerable amount of difficulty in construing the binding nature of the pretrial investigation...
The point we are trying to make clear is that the pretrial investigation is a valuable proceeding but that it should
not be a jurisdictional requirement. It is a valuable proceeding for the defendant as well as for the Government.
We desire that it be held all the time. But in the event that a pretrial investigation, less complete than is provided
here, is held and thereafter at the trial full and complete evidence is presented which establishes beyond a
reasonable doubt the guilt of the accused, there doesn't seem to be any reason ... the case should be set aside if
the lack of full compliance doesn't materially prejudice his substantial rights ... Now if it has, that is and saould
be grounds for reversal of a verdict of guitty.24o

The courts have adopted this reasoning and consistently have held that even though defects in the article 32 investigation are not jurisdictional, they may constitute grounds for appropriate relief 2 41 usually in the form of a continuance to cure the defect. 242 Additionally, when the defect operates to prejudice a substantial right of the accused, it may constitute grounds for reversing a conviction without regard to whether it touches jurisdiction. 243
(I) General rule. The best, and most often cited, statement of how defects in the pretrial investigation should be treated is contained in United States v. Mickel:
[l]f an accused is deprived of a substantial pretrial right on a timely objection, he is entitled to judicial
enforcement of his right, without regard to whether such enforcement will benefit him at the trial. At that stage of
the proceedings, he is perhaps the best judge of the benefits he can obtain from the pretrial right. Once the case
comes to trial on the merits, the pretrial proceedings are superseded by the procedures at the trial; the rights
accorded to the accused in the pretrial stage merge into his rights at trial. If there is no timely objection to the
pretrial proceedings or no indication that these proceedings adversely affected the accused's rights at the trial,
there is no good reason in law or logic to set aside his conviction. 244

Although the Manual provisions are somewhat less clear, they are essentially consistent with the Mickel standard.
R.C.M. 405 provides that no charge may be referred to a general court-martial unless there has been a thorough and impartial investigation made in"substantial compliance" wish the Manual. 245 A motion for appropriate relief246 made prior to tria1 247 should be granted to cure defects in the article 32 investigation 248 which are raised and preserved
233 R.C.M. United States v. Nickerson, 25 M.J. 541, 543 (A.C.M.R. 1987).
234 R.C.M. 405(k); United States v. Nickerson, 27 M.J. 30 (C.M.A. 1988).
235 27 M.J. at 32.
236 R.C.M. 705(c)(2)(E); United States v. Schaffer, 12 M.J. 425 (C.M.A. 1982). In Schaffer, the court held that waiver of the article 32 investigation did not
violate public_policy where the accused proposed waiver as an inducement for a beneficial pretrial agreement. The court did not address the validity of
waiver which originated from the Government as a precondition to plea negotiations. R.C.M. 705(d) only requires that the offer to plead guilty must

originate with the accused. Once the defense initiates negotiations, the Government is free to propose terms.
237 R.C.M.706(C)(1)(A).
236 R.C.M. 405(a) discussion.
239 UCMJ art. 32(d).
24° United States v. Allen, 18 C.M.R. 250, 257 (C.M.A. 1955) quoting testimony of Mr. Larkin atHearings on H.R. 2498 Before a Subcomm, of the House
Comm. on Armed Services, 81st Cong., 1st Sess. 998 (1949) (emphasis added).

241 See, e.g., United States v. Worden, 38 C.M.R. 284 (C.M.A. 1968) (the defense motion to dismiss charges because of a defective article 32
investigation was treated as a motion for appropriate relief because that was the real basis for relief and counsel's misdesignation of the motion was not
fatal).

242 R.C.M. 906(b)3) discussion.
243 United States v. Allen, 18 C.M.R. 250 (C.M.A. 1955); United States v. Rhoden, 2 C.M.R. 99 (C.M.A. 1952).
244 United States v. Mickel, 36 C.M.R. 104, 107 (C.M.A. 1958) (emphasis added). In Mickel, the accused was represented at the article 32 investigation
by a counsel who was not certified under the provisions of article 27(b). The accused did not object to this defect until after trial on the merits. The court
held that although the accused was excused from making a timely objection (because at the time the accused could not have fully understood his rights
to qualified counsel), no relief should be granted unless there was a showing that the pretrial error prejudiced him at trial.
245 R.C.M. 405(a).
246 R.C.M. 906.

242 R.C.M. 905(b)(1) requires objections to nonjurisdictional defects in the pretrial investigation of charges to be made at trial prior to the entry of a plea.
248 R.C.M. 906(b)(3) (correction of defects in the article 32 investigation is a proper ground for appropriate relief).

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through timely objection249 if the defect "deprives a party of a right or hinders a party from preparing for trial or
presenting its case."250

(2)
Timeliness of objections. The first step for the accused in getting judicial enforcement of substantial pretrial
rights is to make a timely objection to the alleged defect. 25I If a defect is not objected to in a timely manner, the
accused is entitled to relief only if there was less than substantial compliance with article 32 252 or if the defect
prejudiced the accused at tria1. 253

(a)
Defects discovered during the course of the investigation. Defects in the pretrial investigation which are
discovered during the course of the investigation must be raised to the investigating officer "promptly upon discovery
of the alleged error." 254 The investigating officer can require that the objection be made in writing. 255 This requirement
for prompt objection allows the Government to cure obvious defects without unnecessary delay; 256 however, the
investigating officer is not required to act on,257 or even render a ruling on,258 the objection. If the objection raises a
substantial question regarding the validity of the proceedings, the appointing authority should be notified im­mediately.259 Normally, the investigating officer should discuss defense objections with a neutral legal advisor. 260

All objections should be noted in the report of investigation even though the Manual only makes this mandatory
when the objection relates to nonproduction of a defense-requested witness or evidence 261 or when the defense counsel
specifically requests that it be noted. 262

Objections to defects discovered during the course of the investigation which are not raised in a timely manner are
waived absent a showing of good cause. 263

(b)
Defects in the report of investigation. After the accused receives a copy of the report of investigation, the
defense has only 5 days to object to the appointing authority about defects contained in the report. 264 Objections not
timely made are waived absent a showing of good cause. 265 This provision will require some development of what
constitutes "good cause," because the 5—day time period begins with service of the report on the accused rather than
service on the defense counse1. 2" This provision places a heavy burden on defense counsel to preserve objections
because the rule purports to require defense counsel to object "again" if objections made during the course of the
investigation are not noted in the report of investigation. 267

(c)
Motion for appropriate relief at trial. If objections to defects in the article 32 investigation are preserved, the accused may be entitled to relief at trial by making a motion for appropriate relief prior to entry of the plea. 268 Failure to make the motion prior to plea constitutes waiver of the objection absent a showing of good cause for relief from waiver. 269

248 See generally R.C.M. 405(h)(2); R.C.M. 4050)(4).
250 R.C.M. 906(a).
251 United States v. Mickel, 26' C.M.R. 104 (C.M.A. 1958); see also R.C.M. 405(h)(2), (j)(4).

252 United States v. Persinger, 37 C.M.R. 631 (A.B.R. 1966). In Persinger, the accused voluntarily waived representation by counsel. The investigation
consisted only of the investigating officers consideration of military police reports and an accusatory letter from an Assistant U.S. Attorney. Despite the
absence of any defense objection at trial, the Army Board of Review reversed the aocused's conviction becruse of this less than token compliance with
article 32, holding that substantial departures from fundamental pretrial procedures required reversal without "nice calculations as to the amount of
prejudice* which resulted from the error.

253 See, e.g., United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978) (investigating officers denial of the defense request to produce two civilian witnesses
deprived the accused of a substantial pretrial right, but as the defense made no effort to depose the witnesses, the defect was not raised in a timely
manner and the issue was waived). For examples of other defects which were waived by the defense's failure to make a motion for appropriate relief at
trial, seeUnited States v. McCormick, 12 C.M.R. 117 (C.M.A. 1953) (investigating officer failed to inquire into one of the charges); United States v.
Lassiter, 28 C.M.R. 313 (C.M.A. 1950) (investigating officer denied a defense request for the presence of a witness and instead considered the witness'

unswom statement); United States v.
Donaldson, 49 C.M.R. 542 (C.M.A. 1975) (two months after the article 32 investigation was completed on the original charges, additional charges were preferred and referred to the same trial without re-opening the pretrial investigation); United States v.
TIMM, 17
M.J. 757 (C.G.C.M.R. 1984) (investigating officer engaged in ex parte discussions with Government counsel),
254 R.C.M. 405(h)(2). This standard has some obvious enforcement problems. While it will be obvious when some defects were discovered, other defects
wit only be capable of being analyzed in terms of when they"reasonably should have been discovered.*
255 Id.

256 R.C.M. 405(h)(2) analysis.
257 R.C.M. 405h)2) discussion.
258 R.C.M. 405(h)(2).
258 R.C.M. 405h)2) discussion.
268 These discussions cannot be held ex parte if they involve substantive matters.See generally supra para. 16-3(b)(3).

261 R.C.M. 405(g)(2)(D) (the investigating officer shall include a statement detailing the reasons why the witness or evidence was determined to be
unavailable).
262 R.C.M. 405(h)(2); United States v. Cunningham, 21 M.J. 585 (A.C.M.R. 1985) (error for the investigating officer not to note defense counsel objectionswhen requested).
263 R.C.M. 405(k).
264 R.C.M. 405(j)(4). Because there is no qualification placed on the time limit, this should be interpreted to mean five calendar days.285 R.C.M. 405(k).
266 Are objections waived when the defense counsel is unavailable for consultation during the 5-day period? When the accused is not permitted to consult
with counsel? When the accused negligently fails to consult with counsel? When the accused loses the report of investigation?
267 R.C.M. 405(k) discussion if the report fails to include reference to objections which were made under subsection (h)(2) of this rule, failure to object to
the report will constitute waiver of such objections in the absence of good cause for relief from waiverit is unclear whether this was meant to apply to all
objections made during the course of the investigation or only to objections which the defense requested be noted in the report of investigation.
268 R.C.M. 905(b)(1).

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(d)
Requests for production of witnesses—the deposition alternative. The Manual suggests that "even if the accused
made a timely objection to the investigating officer's failure to produce a witness, a defense request for a deposition
may be necessary to preserve the issue for later review." 270 Although this requirement is not very well defined, either
in the Manual or in case law, some courts have maintained that a request to depose the witness is necessary as a matter
of timeliness. 271 This contemplated use of the deposition as a discovery and interviewing device (or to cure error
committed by the article 32 investigating officer) is specifically authorized by the Manual 272 despite the fact that it
clearly exceeds the permissible uses of the deposition sanctioned by Federal courts. 273

(3)
Standard for relief Once the threshold requirement of a timely objection is satisfied, the court must then decide
whether the alleged defect involves a substantial pretrial right of the accused, which is thus entitled to enforcement
without any showing of benefit at trial, or whether the accused must demonstrate some specific prejudice to get
relief.274 Analyzing cases in these terms, a direct result of the court's language in Mickel 275 is essential to understand­ing the reported decisions in the area, but it also presents practical problems. The courts have never defined what
constitutes a "substantial pretrial right" and they continually blur the distinction between "prejudice at the Article 32
investigation" and "prejudice at trial." 276 As a practical matter, the defense should get relief at trial (or on appeal) only
if the defect is such that it denied the accused the right to discover evidence material to the charges, the right to
confront adverse witnesses, the right to present matters which might affect the disposition of the case, or the right to a
neutral recommendation as to disposition from the article 32 investigating officer.

(a)
"Substantial pretrial rights." The courts have never expressly defined the distinction between defects involving
substantial pretrial rights and "other defects." On a case-by-case basis courts have held that the accused was denied a
substantial pretrial right when the article 32 investigation was ordered by an officer who lacked authority to appoint
one;277 when the accused was improperly denied representation at the investigation by the civilian counsel-of­choice;278 when the accused was denied the effective representation of counsel at the investigation; 279 when the

269 R.C.M. 905(e).
270 R.C.M. 405(k) discussion.

271 United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978). In Chuculate, the defense requested the production of two civilian witnesses, one of whom was
the victim of the charged offenses, at the article 32 investigation. The witnesses were invited to attend the investigation but refused. Instead of deciding
the case based solely on the fact that the witnesses were not "reasonably available; the court decided that the refusal of the civilians to attend did not eo
ipsonullify the defense right to cross-examine them, and the court specifically held that the accused had been deprived of a substantial pretrial right. The
court nonetheless denied the defense motion to reopen the article 32 investigation because the defense had failed to timely urge the accused's

• substantial right—in this instance, the opportunity to depose in lieu of cross-examination at th 6 article 32 investigation—with no adverse effect at trial; see also United States v. Matthews, 15 M.J. 622 (N.M.C.M.R. 1982) (when the defense declined the military trial judge's offer to order a deposition of a witness the defense alleged was improperly denied at the pretrial investigation, it waived further litigation of the issue because it failed to timely urge the accused's substantial pretrial rights); United States v. Stratton, 12 M.J. 998 (A.F.C.M.R. 1982). 272 R.C.M. 702(c)(3)(A) discussion provides:
The fact that the witness is or will be available for trial is good cause for denial [of the request for deposition] in the absence of unusual
circumstances, such as improper denial of a witness request at an Article 32 hearing, [or] unavailability of an essential witness at en Article 32
hearing ....

273 See generally R.C.M. 702(a) analysis (where the drafters recognized that under Federal law the deposition is properly used only to preserve the
testimony of witnesses likely to be unavailable at trial).
274 United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958). In United States v. Freedman, 23 M.J. 82 (N.M.C.M.R. 1987), the Navy-Marine Court of Military
Review expressed the opinion that all errors in the article 32 investigation should be tested for prejudice. It rejected the holding in Mickel that those errors
involving substantial pretrial rights entitle the accused to enforcement of the right without any showing of benefit at trial.
275 See supra note 236 and accompanying text.

276 See, e.g.. United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958). In Mickel, the accused was excused from making a timely objection to his
representation at the pretrial investigation by a counsel who was not qualified under UCMJ art. 27(b). When the court evaluated this defect for 'prejudice
to the accused, it considered both the fact that counsel at the article 32 investigation performed well and the fact that nothing which occurred at the
pretrial investigation was used against the accused at trial.

277 United States v. Donaldson. 49 C.M.R. 542 (C.M.A. 1975) (the pretrial investigation was ordered by an officer-in-charge who exercised no court­martial jurisdiction over the accused).

278 United States v. Maness, 48 C.M.R. 512 (C.M.A. 1974). In Maness,the accused's retained civilian defense counsel was denied an opportunity to bepresent at the article 32 hearing because the investigating officer arbitrarily denied a reasonable defense request for postponement. The court held that it was well settled that ... improper exclusion of civilian counsel denies the accused a substantial right? Id. at 518. 279 United States v. Porter, 1 M.J. 506 (A.F.C.M.R. 1975); United States v. Worden, 38 C.M.R. 284 (C.M.A. 1968); United States v. Miro, 22 M.J. 509
(A.F.C.M.R. 1986). in these cases, the accused's defense counsel was denied an opportunity to interview witnesses and to prepare a defense case prior to the pretrial investigation. The courts held that under the circumstances, the defense counsel was unable to prepare cross-examination and the accused was denied effective representation of counsel. When the accused is denied the effective assistance of counsel at the pretrial investigation, the court "will
not indulge in nice calculations as to prejudice?
Worden, 38 C.M.R. at 287. But see United States v. Davis, 20 M.J. 61 (C.M.A. 1985) (the court refusedto reverse the accused's conviction even though he had been ineffectively represented at the article 32 investigation, examining for prejudice, the court concluded that there was nothing more that any other counsel could have done' at the article 32 hearing
or at trial).
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investigating officer failed to produce reasonably available key Government witnesses; 280 and when the accused was
not mentally competent to understand the nature of the proceedings or to participate in the defense. 28I In each of these
cases the accused was entitled to judicial enforcement of the right to a properly conducted article 32 investigation
without regard to whether it would eventually benefit the accused at trial. In fact, in United States v. Saunders, 282 the
Army Court of Military Review actually found that there was no reasonable possibility that the accused had been
prejudiced either at the investigation or at trial. The court called upon the Court of Military Appeals to adopt a "test for
prejudice" standard in all cases involving defective article 32 investigations except those which, like Micke1, 283
284 involved a denial of the right to counse1.
(b) Testing for prejudice. If the alleged defect in the pretrial investigation is objected to in a timely manner, but does not involve a substantial pretrial right, the court must determine whether the defect prejudiced the accused at tria1. 285
Defects which should be tested for prejudice fall into five categories: minor/technical irregularities; nonproduction of defense-requested witnesses; 286 lack of impartiality of the investigating officer; 287 investigating officer's improper receipt of ex parte or nonneutral legal advice; 288 and consideration of improper evidence. 289
Minor and technical irregularities. The accused is not entitled to a perfect article 32 investigation. Accordingly, the courts will evaluate "minor irregularities" (such as the investigating officer's limitation of defense cross-examination on impeachment matters),29° and "technical defects" (such as the defense counsel's lack of certification under article 27(b))29' to see whether the defect prejudiced tie accused at trial by affecting the convening authority's referral to general court-martial 292 or by hindering the accused's ability to conduct a defense. 293
Nonproduction of defense-requested witnesses. On at least two occasions, the Court of Military Appeals has determined that the failure to produce the key Government witness at the article 32 investigation deprived the accused of a substantial pretrial right. 294 An alternate view is that nonproduction should be tested for prejudice. Obviously, the
280 United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976); United States v. Chestnut, 2 M.J. 84 (C.M.A. 1967). In both cases, the defense was forced to
proceed to trial without interviewing the key Government witness under oath because the investigating officer failed to properly assess the reasonable availability of the witness to testify at the article 32 investigation. The court in Chestnut succinctly reviewed the standard applicable to this type of defect saying, "This Court once again must emphasize that an accused is entitled to the enforcement of his pretrial rights without regard to whether such enforcement will benefit him at trial. Thus, Government arguments of 'if error, no prejudice' cannot be persuasive."Chestnut, 2 M.J. at 85 n.4. But seeUnited States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981) and United States v. Martinez, 12 M.J. 801 (N.M.C.M.R. 1981), where the courts went on to analyze whether the accused was prejudiced by the Government's failure to provide a defense requested witness at the article 32 investigation. 291 United States v. Saunders, 11 M.J. 912 (A.C.M.R. 1981).
282 Id. 283
United States v. Mickel, 26 C.M.R. 104 (1958). 294 Saunders.11 M.J. at 915 n.2.
We respectfully request the Court of Military Appeals to reexamine its position ... to the effect that an accused is entitled to the enforcement of a
pretrial right without regard to whether such enforcement will benefit him at trial. The rule announced in Mickel ... involved the denial of a right to
counsel.... A violation of the right to counsel is of such magnitude that it can never be harmless.... We believe the rule in Mickel should be limited to
the denial of the right to counsel.
It is interesting to note that the court in Saundersdecided it could not test for prejudice because otMickel when the court in Mickelactually denied the accused any relief by applying a prejudice test.
From one who is not aware of the error until after trial, we can except no less than a showing that the pretrial error prejudiced him at the trial. Here,
the board of review concluded that the accused-could not' have fully understood his rights to qualified counsel at the pretrial investigation, but it did
not inquire whether the failure to provide such counsel prejudiced him at trial. In the absence of such prejudice, the pretrial error did not contaminate
the proceedings in which the accused's guilt was actually determined. Mickel, 26 C.M.R. at 107-08.
295 See supra note 244 and accompanying text.
296 For a discussion of the accused's right to have reasonably available witnesses produced at the pretrial investigation, see supra para. 16-4(c)(1).
297 For a discussion of what constitutes impartiality, see supra para. 16-3(b)(2).
299 For a discussion of the investigating officer's obligation to perform duties in a quasi-judicial manner, see supra para. 9-3(b)(3).

289 United States v. Martel, 19 M.J. 917 (A.C.M.R. 1985). In Martel, the investigating officer gave ex pane consideration to police reports, a crime scene
visit, and a discussion with a potential witness. Because of the difficulty in demonstrating prejudice from ex parse actions, the court applied a presumption
of prejudice which the Government was required to rebut by clear and convincing evidence. In Martel, the investigating officer also improperly considered
testimony and witness statements that should have been excluded by the marital privilege, Mil. R. Evid. 54(b). Because this information was presented at
the hearing in the presence of defense counsel, the court did not apply any presumptions and instead put the burden on the defense to show specific

prejudice.

29° United States v. Harris. 2 M.J. 1089 (A.C.M.R. 1977). In Harris, the investigating officer denied the defense counsel for Harris (a black soldier) the
opportunity to cross-examine the victim (a white soldier) about his racial biases and prejudices; see also United States v. Cunningham, 21 M.J. 585

(A.C.M.R. 1985) (the investigating officer failed to note defense counsel objections in the report of investigation).
291 United States v. Mickel, 26 C.M.R. 104 (C.M.A. 1958). 292 In Harris, the court considered the investigating officer's testimony that even if the victim had admitted racial bias it would not have Influenced his recommendation as to disposition, and the court concluded that there was no reason to believe that the convening authority would have disposed of this
case differently? 2 M.J. at 1091,
293 In Harris, the accused was permitted to fully attack the witness' credibility at trial and the evidence of the accused's guilt was compelling. 2 M.J. at
1091. In wokeb the court noted that the accused's counsel did a good job at the article 3 hearing, that nothing which occurred at the pretrial investigation
was later used against the accused at trial, and that, in fact, the defense used evidence developed at the article 3 investigation to impeach Government
witnesses at trial. Mickel, 6 C.M.A. at 327, 26 C.M.R. at 107.
294 United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976); United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976).

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accused is prejudiced when the Government denies the defense an opportunity to interview the key Government witness prior to trial 2 95 On the other hand, as'the Army and Navy-Marine Courts of Military Review have recognized, there is no good reason to reopen an article 32 investigation if the witness' testimony would not affect the disposition of the case and the accused's "rights" to discovery and to cross-examine the witness under oath have been vindicated by granting the defense an opportunity to depose the witness prior to tria1. 296 This view is consistent with provisions in the 1984 Manual that clearly contemplate the use of depositions to cure errors in the nonproduction of defense­requested witnesses at the article 32 investigation. 297
Impartiality of the investigating officer. When there is evidence that the article 32 investigating officer may not have been "impartial," the courts will generally test for prejudice by looking at the way the investigation was actually conducted for indicia of impartiality, for example, the thoroughness of the investigation and the reasonableness of the recommendations in • light of the evidence. 298
Ex parte communications. When the defense shows that the investigating officer engaged in ex parte communica­tions on substantive matters, the courts will apply a presumption of prejudice which the Government must rebut by clear and convincing evidence2" If there have been impermissible conversations and the Government witnesses are unable to document or recall what the substance of the conversations were, the accused is entitled to a new article 32 investigation.")
(c)
Waiver by guilty plea. There are a number of cases that hold that a plea .rf guilty at trial waives all -pretrial objections that do not amount to jurisdictional error or that do not constitute a denial of due process 3 01 This waiver has been applied to defects in the article 32 proceeding which otherwise would have constituted a deprivation of a substantial pretrial right. 302 While a guilty plea clearly will waive errors that might otherwise have affected findings of guilty as to the offenses covered by the plea, the plea should not constitute a waiver of objection to defects which might have affected the level of referra1. 3°3

e.
Remedy to cure defects. At trial, the normal remedy available to cure a defective article 32 investigation is a continuance to reopen the investigation. 04 Because the article 32 investigation is not jurisdictional, charges do not have to be re-referred after the corrective action is taken at the investigation. 305 It is sufficient that the convening authority reaffirm the original referra1. 306

Section II The Article 34 Pretrial Advice
16-7. General
a. Statutory requirement. "Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate for consideration and advice." 307 A written pretrial advice must be provided by
295 This was the situation faced in bothLedbetter and Chestnut, see supranote 280. The results in both of those cases would have been the same if the
court had tested for prejudice.
296 United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981); United States v. Martinez, 12 M.J. 801 (N.M.C.M.R. 1981).
292 R.C.M.702(d)(3)(A).
296 See, e.g., United States v. Cunningham. 30 C.M.R. 402 (C.M.A. 1961) (having the accuser serve as investigating officer was prejudicial error where

the investigation failed to cover all the elements of the charged offenses and the investigating officer failed to examine a number of available witnesses);
United States v. Natalello, 10 M.J. 594 (A.F.C.M.R. 1980) (accused was specifically prejudiced by the fact that the investigating officer had already formed
and expressed an opinion that the accused was guilty before ever conducting the investigation). But see United States v. Castleman, 11 M.J. 562

(A.F.C.M.R. 1981) (accused's substantial right to an impartial investigation was abridged where the investigating officer was the best friend of the main
Government witness and the accused was thus entitled to relief without any showing of specific prejudice). 299 United States v. Payne, 3 M.J. 354 (C.M.A. 1973).
We are not unmindful of the inherent difficulties presented by requiring a defendant to demonstrate the prejudice resulting from improper actions by a
judicial officer, the full extent or text of which he may be unaware in part or whole. We, conclude that this is a matter requiring a presumption of
prejudice. Absent clear and convincing evidence to the contrary, we will be obliged to reverse the case.
Id. at 357. See alsotinited States v. Whitt, 21 M.J. 658 (A.C.M.R. 1985); United States v. Francis, 25 M.J. 614 (C.G.C.M.R. 1987). 300 See, e.g., United States v. Brunson, 15 M.J. 898 (C.G.C.M.R. 1982) (court reluctantly set aside the accused's conviction where the record of trial did not contain the substance of ex parte conversations which had taken place between the investigating officer and the Government representative). The
General Counsel. Department of Transportation, requested that the Court of Military Appeals review whether the Court of Military Review erred in holding that the ex partaconversations were presumptively prejudicial rather than requiring a showing of actual prejudice. United States v. Brunson, 15 M.J. 72
(C.M.A. 1982). The Court of Military Appeals affirmed the lower court's use of the presumption of prejudice standard announced inPayne. United States v. Brunson, 17 M.J. 181 (C.M.A. 1983).
301 See. e.g.. United States v. Rehom, 26 C.M.R. 267 (C.M.A. 1958) (accused's counsel at the pretrial investigation was not certified under article 27(b));
United States v. Courtier, 43 C.M.R. 118 (C.M.A. 1971) (accused was improperly denied individually requested counsel at the pretrial investigation);
United States v. Lopez, 42 C.M.R. 268 (C.M.A. 1970) (investigating officer was not impartial); United States v. Judson, 3 M.J. 908 (A.C.M.R. 1977)
(accused was denied effective assistance of counsel at the investigation).

302 United States v. Judson. 3 M.J. 908 (A.C.M.R. 1977); United States v. Courtier, 43 C.M.R. 118 (C.M.A. 1971).
303 R.C.M. 9100); United States v. Engle, 1 M.J. 387 (C.M.A. 1976).
304 R.C.M. 96(b)(3) discussion.

305 United States v. Clark, 11 M.J. 179 (C.M.A. 1981); United States v. Packer, 8 M.J. 785 (N.C.M.R. 1980).
306 United States v. Clark, 11 M.J. 179 (C.M.A. 1981); United States v. Packer. 8 M.J. 785 (N.C.M.R. 1980).
307 UCMJ art. 34(a); R.C.M. 406(a).

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the staff judge advocate to the convening authority in every general court-martial, but such written advice is not
required for referral of charges to any inferior court-martial 3 08 Failure to provide a pretrial advice regarding charges
referred to a general court-martial is error that is tested for prejudice. 309 This requirement cannot be waived by the
accused, either expressly or by implication. 310

b. Purpose of the pretrial advice. The courts have been inconsistent in discussing the nature and purpose of the
pretrial advice. On one end of the spectrum, the pretrial advice has been called "a substantial pretrial right" 311 which
protects the accused from being brought to trial on baseless charges and from having the case referred to an
inappropriate level of courts-martial in contravention of the policy that charges be disposed of at the lowest appropriate
leve1.312 On the other end of the spectrum, the pretrial advice has been labeled a "prosecutorial tool" 313 which merely
affords the accused the"salutary" benefit of having the charges examined by someone with legal training. 314

(1) UCMJ art. 34 (1951).
The legislative history of the 1951 Code made it clear ... that the purpose of the pretrial advice is to inform the
convening authority concerning the circumstances of a case in such a manner that he personally will be able to
make an informed decision whether there has been compliance with the other pretrial procedures; whether the case
should be tried; and the type of tribunal to which the charges should be referred. 3 t 5

The role of the staff judge advocate was strictly one of a "legal advisor." The courts required that the pretrial advice contain all the facts which might have a substantial effect on the convening authority's decision to refer the case to tria1316 or which might have a substantial effect on the convening authority's decision as to level of court-martia1. 317 In many respects the staff judge advocate's role was a matter of efficiency, saving the convening authority "the duty of going through a record with a fine tooth comb." 318 All of the staff judge advocate's legal conclusions and recommen­dations contained in the pretrial advice were purely advisory. 319 The convening authority exercised unfettered prosecutorial discretion.
(2) UCMJ art. 34 (1983). In response to criticism that the pretrial advice had become an administrative burden on staff judge advocates and commanders, 320 Congress provided for a streamlined pretrial advice in the Military Justice Act of 1983.321 Rather than have commanders make legal determinations about jurisdiction and the legal sufficiency of the charges, the new article 34 requires the staff judge advocate to provide advice on these determinations. 322
A direct consequence of this change is that some prosecutorial discretion is taken away from the convening authority. If the staff judge advocate concludes that there is no jurisdiction to try the accused by court-martial, 323 that
308 R.C.M. 406(a) discussion.
309 United States v. Murray, 25 M.J. 445 (C.M.A. 1988).
310 United States v. Hayes, 24 M.J. 786 (A.C.M.R. 1986).

311 see,
e.g., United States v. Schuller, 17 C.M.R. 101. 105 (C.M.A. 1984) (accused was deprived of his right to have a qualified Staff Judge Advocate make an independent and professional examination of the expected evidence and submit to the convening authority his impartial opinion as to whether it supported the charges"); United States v. Heaney, 25 C.M.R. 268, 269 (C.M.A. 1958) ("Article 34 is an important pretrial protection accorded to
an
accused."); United States v. Greenwatt, 20 C.M.R. 285, 288 (C.M.A. 1955) (pretrial advice "is an important protection accorded to an accused and Congress had in mind something more than adherence to an empty ritual"); United States v. Edwards, 32 C.M.R. 586 (A.B.R. 1962) (sending the accused to a general court-martial on charges that were different than the ones discussed in the pretrial advice deprived the accused of a substantial pretrial right).
312 R.C.M. 306(b).
313 United States v. Hardin, 7 M.J. 399 (C.M.A. 1979). In Hardin, the court rejected the view that the pretrial advice provided any judicial-type protection of
a fundamental nature for the military accused. Instead the court held that the military trial judge judicially enforces the accused's "fundamental right -under article 34 to have charges referred to a general court-martial only if the charge alleges an offense under the Code and is warranted by evidence indicated in the report of investigation. Id. at 403-04.
314 Hardin, 7 M.J. at 404.
315 United States v. Foti, 30 C.M.R. 303 (C.M.A. 1961). 316
See. e.g., United States v. Foti, 30 C.M.R. 303 (C.M.A. 1961) (accused is entitled to an individualized treatment of factors in the case which would have a substantial influence on the convening authority's referral decision); United States v. Henry, 50 C.M.R. 685 (A.F.C.M.R. 1975) (it was error for the pretrial advice to discuss a witness' unsworn statement in a misleading manner because it might have affected the convening authority's decision to refer
the case to trial).

317 See, e.g., United States v. Rivera, 42 C.M.R. 198 (C.M.A. 1970) (it was error for the pretrial advice to omit the unit commander's opinion that the
accused should not receive a punitive discharge).
318 United States v. Foti, 30 C.M.R. 303, 304 (C.M.A. 1961).
319 MCM, 1969, para. 35b.

32° See generallyMilitary Justice Act of 1983: Hearings on S.974 Before the House Comm. on Armed Services, 98th Cong., 1st Seas. (1983).
The staff judge advocate's advice has become a legal brief which can run from a few pages in length in simple cases, to scores of pages in more
complicated ones. This takes the time and resources of lawyers, staff, and most importantly, the commander. The amendment of Article 34 removes
the requirement that the convening authority examine the charges for legal sufficiency, and puts the burden where it belongs—on the shoulders of the
staff judge advocate who is a lawyer. Id. at 43 (statement of MG Hugh J. Clausen, Judge Advocate General of the Army).

321 The Military Justice Act of 1983 requires only that the pretrial advice include a written and signed statement by the staff judge advocate expressing
his/her conclusions that: "(1) the specification alleges an offense ... (2) the specification is warranted by the evidence indicated in the report of
investigation ... and (3) a court-martial would have jurisdiction over the accused and the offense." The advice must also include the staff judge advocate's

recommendation as to disposition.
322 UCMJ art. 34(a).
323 UCMJ art. 34(a)(3).

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the form of a charge is legally deficient, 324 or that a charge is not warranted by the evidence in the article 32 report of
investigation, 325 then the convening authority is precluded from referring that charge to a general court-martia1. 326
An indirect consequence of the 1983 changes to article 34 may be that the pretrial advice has become less of a
"prosecutorial tool" and become more "a substantial pretrial right of the accused." Correspondingly, the role of the
staff judge advocate in rendering a pretrial advice may be less like a district attorney presenting a complaint to a grand
jury for action327 and more like a quasi-judicial magistrate making a probable cause determination that protects the
accused from being prosecuted on baseless charges. 328 Changing the fundamental nature of the staff judge advocate's
pretrial advice could arguably have an impact on the standard of impartiality required of the staff judge advocate, 329
33° and the treatment of defects in the pretrial advice. 33 I the role of the trial counsel in pretrial processing,
16-8. Contents
a. Mandatory contents. The Military Justice Act of 1983 contemplates that a legally sufficient pretrial advice need
contain only the staff judge advocate's legal conclusions regarding jurisdiction, the form of the charges, the sufficiency
of the evidence at the article 32 investigation, and the staff judge advocate's recommended disposition of the case. 332

This is in sharp contrast to prior case law which required that the pretrial advice highlight any matter which might have
a substantial effect on the convening authority's referral decision. 333

While the staff judge advocate is required to decide whether the charge is "warranted by the evidence indicated in
the report of investigation," 334 neither the UCMJ nor the Manual sets out an express standard against which the
evidence must be weighed. The best view is that the charges must be supported by that "quantum of evidence ... which
would convince a reasonable, prudent person there is probable cause to believe a crime was committed and the accused
committed it." 335

b. Optional contents. The legislative history to article 34 336 and the nonbinding discussion to the Manual 337 suggest that, when appropriate, the pretrial advice "should" include such things as "a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; and any previous recommendations" by others who have forwarded the charges. 338 The Manual further suggests that failure to include these items can never constitute error, 339
presumably because all these matters are contained in the case file which accompanies the pretrial advice and the convening authority can review all or part of the case file before making a referral decision. What matters are actually put into the pretrial advice is left to local practice influenced primarily by the predilections of the convening authority. Any matters put into the pretrial advice, whether required or not, must be accurate. 340
c. Form of the advice. Neither the UCMJ nor the Manual require that the pretrial advice be in any particular form. The only requirement is that the advice "shall include a written and signed statement" containing the mandatory conclusions and recommendation discussed above. 34 I So long as this minimum requirement is met, additional matters can arguably be presented for the convening authority's consideration orally 342 or in the form of an unsigned back-up
324 UCMJ art. 34(a)(1).
325 UCMJ art. 34(a)(2).. • 326 UCMJ art. 34(a). The three legal conclusions that the staff judge advocate must make are binding on the convening authority; the staff judge advocate's recommended disposition is not. Even if the staff judge advocate's legal conclusions preclude referral of a charge to a general court-martial the convening authority would, in theory, retain the prerogative to send the charge to some inferior level of court. 327 United States v. Hayes, 22 C.M.R. 267 (C.M.A. 1957).
325 Federal case law recognizes that the article 32 pretrial investigation and the article 34 pretrial advice, taken together, provide the military accused with due process guarantees which are equivalent to civilian indictment by grand jury or the federal preliminary examination. See generally Talbot v. Toth, 215 F.2d 22 (D.C. Cir. 1954). In the past, the article 32 investigating officer has been the individual imbued with a judicial quality (United States v. Payne, 3
M.J. 354 (C.M.A. 1977)), and the article 32 investigation was the substantial pretrial right which protected the accused against baseless charges. United States v. Samuels, 27 C.M.R. 280 (C.M.A. 1959). This result is arguably skewed now that the staff judge advocate, a trained lawyer, makes binding legalconclusions concerning the sufficiency of the evidence to proceed to trial while the investigating officer, usually a lay person, merely makes an advisory recommendation regarding disposition of the charges.
329 See generally supra para. 16-3b(2).
33° See generally supra para. 16-3b(3) regarding ex parte advice to a "quasi-judiciat article 32 investigating officer.
331 See generally supra para. 16-6 regarding the enforcement of substantial pretrial rights without any showing of benefit at trial.

332 UCMJ art. 34(a); R.C.M. 406(b).
333 United States v. Foti, 30 C.M.R. 303 (C.M.A. 1961).
334 UCMJ art. 34(a)(2).
335 United States v. Engle, 1 M.J. 387 (C.M.A. 1976).Accord Gerstein v. Pugh, 420 U.S. 103 (1975).
336 S. Rep. No. 98-53, 98th Cong., 1st Sess. 17 (1983).
337 R.C.M. 406(b) discussion.
335 Id.
339 Id.
34° Id.
341 R.C.M. 406(b).
342 United States v. Treadwell, 7 M.J. 864 (A.C.M.R. 1979). In

Treadwell, the Government urged that the staff judge advocate's oral advice to the convening authority cured a defective written pretrial advice which misstated the maximum punishment the accused could receive for the chargedoffenses. The court, in dicta, opined that "although the Manual ... requires that the pretrial advice include a 'written and signed statement concerning
specified matters (not including the maximum punishment), we know of no reason why the pretrial advice cannot be altered orally at least as to othermatters, as was done in this case." Id. at 866 n.2. See also United States v. Heaney. 25 C.M.R. 268 (C.M.A. 1958) (because article 34 does not prescribe the form or the manner of the advice, it may be submitted in such manner and form as the convening authority may direct); United States v. Clements, 12
M.J. 842 (A.C.M.R. 1982) (Staff judge advocate can orally cure a defective written pretrial advice).
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memorandum.
The Manual does require that a "copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial." 343 Arguably this provision would require the staff judge advocate to disclose oral communications with the convening authority which are provided to assist the convening authority in making a referral decision. 344

16-9. Preparation of the pretrial advice
The staff judge advocate need not personally draft the pretrial advice, but the final version which is presented to the convening authority must reflect the independent professional judgment of the staff judge advocate. 345
If the advice remains a purely prosecutorial tool, as suggested in United States v. Hardin, 346 it may be acceptable for the trial counsel to draft the preliminary pretrial advice, although a safer approach would be to have a neutral judge advocate perform that function. 347

16-10. Treatment of defects
Unlike the article 32 pretrial investigation, 348 the pretrial advice generally has not been held to encompass substantial pretrial rights which are judicially enforceable without any showing by the accused of benefit at tria1. 349 By making a timely motion for appropriate relief, 350 the accused may be entitled to a continuance 351 and a new pretrial advice if the existing advice is so"incomplete, ill-considered, or misleading" 352 as to a material matter that the convening authority might have made an erroneous referra1. 353 Objections to defects are waived if they are not raised prior to the entry of a plea354 or if the accused pleads guilty. 355 Failure to provide a written pretrial advice to the convening authority is error which will be tested for prejudice. 356
343 R.C.M. 406(c).
344 R.C.M. 406(c) analysis provides ttiarthe entire advice should be provided to the defense so that"the advice can be subjected to judicial review when
necessary."

345 R.C.M. 406(b) discussion.See also United States v. Schuller 17 C.M.R. 101, 105 (C.M.A. 1954) (accused has the right to 'have a qualified Staff Judge
Advocate make an independent and professional examination of the expected evidence and submit to the convening authority his impartial opinion as to
whether it supported the charges"); United States v. Greenwatt 20 C.M.R. 285 (C.M.A. 1955) (article 34 "places a duty on the staff judge advocate to
make an independent and informed appraisal of the evidence as a predicate for his recommendation"); United States v. Foti 30 C.M.R. 303 (C.M.A. 1961)
(under the circumstances of the case the staff judge advocate's use of a mimeographed form pretrial advice failed to afford the accused theindividualized
treatment" required by article 34).

346 7 M.J. 399 (C.M.A. 1979).
347 Id. at 403. In Hardin, the court relied at least in part on the tact that the advice was not binding on the convening authority, and the fact that with all
the content requirements the court could review the 28-page pretrial advice and conclude it was arrexemplary,' 'dispassionate evaluatioeof the case. The
court held that having the trial counsel prepare the advice was not per se error and that under the facts of Hardin there was no error. The opinion
however, falls far short of a wholesale endorsement of that procedure. 7 M.J. at 404 -05.
345 See generally supra para. 9-6.

346 But cf. United States v. Porter, 1 M.J. 506 (A.F.C.M.R. 1975) (where the pretrial advice omitted relevant information about the accused's prior service
history, the court ordered a new advice without speculating on whether the new information might affect the convening authority's referral decision and
instead held that an accused is entitled to have his case considered in light of accurate information.").

350 R.C.M. 905(b)(1); R.C.M. 906(b)(3). 351 R.C.M. 906b)3) discussion.
352 R.C.M. 406(b) discussion; United States v. Greenwalt, 6 C.M.A. 569, 20 C.M.R. 285 (1955); United States v. Kemp, 7 M.J. 760 (A.C.M.R. 1979). 353 See, e.g., United States v. Rivera, 42 C.M.R. 198 (C.M.A. 1970) (reversible error not to inform the convening authority of the unit commander's opinion that the accused should not receive a punitive discharge); United States v. Greenwatt, 20 C.M.R. 285. 288 (C.M.A. 1955) (statement in the pretrial advice that the article 32 investigating officer recommended trial by general court-martial, when in fact he recommended special court-martial, was a defect likely to mislead the convening authority in the exercise of his power of referrer); cf. United States v. Kemp, 7 M.J. 760, 761 (A.C.M.R. 1979) (although there were several misstatements of fact in the pretrial advice, even taken together the court did not believe that the convening authority might have referred the case to an inferior court"); United States v. Riege, 5 M.J. 938. 944 (N.C.M.R. 1978) (not error to fail to discuss the element "prejudicial to good order and discipline in the pretrial advice where the convening authority was adequately advised of all the facts that might have had a substantial influence upon his decision"); United States v. Skaggs, 40 C.M.R. 344, 346 (A.B.R. 1968) (failure to include unit commander's recommenda­tion against a punitive discharge was not reversible error where there was no reasonable likelihood ... that the convening authority would have disposed of the charges differently") .
354 R.C.M. 905(c); United States v. Fountain, 2 M.J. 1202 (N.C.M.R. 1978); United States v. Heaney, 25 C.M.R. 268 (C.M.A. 1958). But see United States
v. Edwards, 32 C.M.R. 586 (A.B.R. 1962).
355 See generally R.C.M. 910(j);supra para. 9-6.See also United States v. Packer, 8 M.J. 785 (N.C.M.R. 1980); United States v. Blakney, 2 M.J. 1135

(C.G.C.M.R. 1976); United States v. Henry, 50 C.M.R. 685 (A.F.C.m.R. 1975).
356 United States v. Murray, 25 M.J. 445 (C.M.A. 1988); United States v. Nelson, 28 M.J. 553 (A.C.M.R.

1 989).
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Chapter 17
The Convening of the Court-Martial
17-1. General
A trial is the adjudication of a dispute by a court having jurisdiction over the parties and the dispute. Jurisdiction is the power of a court to hear and decide a dispute. When a court has jurisdiction, it has the power to deprive an individual of liberty or even life. Without jurisdiction a court is powerless. Federal civilian and military courts both have criminal jurisdiction; but the courts differ in the source of their jurisdiction, the manner of their creation, and the duration of their existence.
Federal civilian courts derive their authority from the United States' sovereign power. In particular, they derive their
authority from article III of the Constitution.' Congress establishes the Federal civilian courts, 2 and with the Senate's
advice and consent, the President appoints judges to the courts. 3 The judges have tenure during good behavior. 4 Once
Congress has established a civilian court, the court remains in existence continuously. Whether the court is in session
or not, the court may assemble to hear and determine any Federal criminal case arising within its district.
Courts-martial derive their authority from Congress' constitutional power to "make Rules for the Government and
Regulation of the land and naval Forces"5 and to "make all laws which shall be necessary and proper for carrying into
Execution"6 this power. Congress has delegated the power to convene courts- martial to the President, then in turn to
the military departments' Secretaries, and commanding officers.? The court-martial comes into existence only upon the
order of a commander authorized to convene a court. In theory, the court-martial exists indefinitely after its creation.
However, in practice, the court-martial hears a small number of cases and then adjourns permanently. The court-martial
is "a special purpose tribunal of limited jurisdiction and transitory existence." 8 The court-martial consists of the persons
detailed to the court. 9 The court-martial can hear only the cases the convening authority refers to the court. Unless the
convening authority properly creates the court and refers charges to the court, the court-martial lacks jurisdiction.
Because the manner in which the commander convenes the court-martial determines whether the court-martial has jurisdiction, appellate courts have developed the general rule that courts-martial must be convened strictly in accord­ance with statute. 10 If the commander has not properly constituted the court or referred charges to it, the court has no power to hear and determine a case. Under such circumstances, any conviction would be void 11 and cannot be retroactively validated. 12 While the courts characterize such proceedings as void, the proceedings are not complete nullities; Rather than dismissing the charges, the courts often order rehearings. There have been cases where an unauthorized commander convened a court-martial. In those cases, the Court of Military Appeals held that the proceedings were a nullity. Yet the court concluded its opinion by noting that "[a] new trial may be ordered before a properly appointed court-martial." 13
17-2. The convening authority
As previously stated, the convening authority technically creates the court-martial. The convening authority does so by exercising the power to detail participants to form the court and to refer charges to the court. If the commander does not qualify as a convening authority, he or she lacks these powers, and the attempt to create a court-martial will be ineffectual. 14 Articles 22, 23, and 24 of the Code list the commanders empowered to convene courts- martia1. 15 If a commander holds one of the listed positions, he or she has the power to detail court members and refer charges. The
1 U.S. Const. art. 2 Id. at § 1.
3 Id. at art. II, § 2 art. Ill , § 1.
4 Id.
5 Id. at art. I, § 8.
6 Id.

7 UCMJ art. 22-24. It can be argued that in one's capacity as Commander-in-Chief, the President has inherent power to establish courts-martial. In United
States v. Swaim, 28 Ct Cl. 173 (1893), affd, 165 U.S. 553 (1897), the court held that the President may convene a court-martial without specific
congressional authorization. Congress probably may preempt whatever power the President has, however. In Swaim, the Supreme Court held that the

President had power 'in the absence of legislation expressly prohibitive.' 165 U.S. at 558. The Court of Military Appeals seems to have adopted this view.
The court has held that the UCMJ, enacted by Congress, prevails over the Manual, promulgated by the President. See, e.g., United States v. Vamadore,
26 C.M.R. 251 (C.M.A. 1958); United States v. Price, 23 C.M.R. 54 (C.M.A. 1957); United States v. Jenkins, 22 C.M.R. 51 (C.M.A. 1956).
8 United States v. Goudge, 39 C.M.R. 324, 328 (A.B.R. 1968).

9 As an entity, the court-martial resembles a civilian jury; it is a particular group of persons which tries a small number of cases and disbands.
10 United States v. Emerson, 1 C.M.R. 43 (C.M.A. 1951); United States v. Catcvell, 16 M.J. 575 (A.C.M.R. 1983).
11 United States v. Hamish, 31 C.M.R. 29 (C.M.A. 1961) (two unappointed persons sat as court members); United States v. Roberts, 22 C.M.R. 112

(C.M.A. 1956) (charges not properly referred); United States v. Schmidt, 1 C.M.R. 498 (N.B.R. 1951) (court without quorum). While a conviction would be a nullity, the accused may try to invoke an acquittal in such a case to bar reprosecution. United States v. Culver, 46 C.M.R. 141 (C.M.A. 1973); but see
R.C.M. 907(b)(2)(c)( iv), which states, 'No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this
rule."

12 United States v. Caldwell, 16 M.J. 575 (A.C.M.R. 1983); United States v. Cameron, 13 C.M.R. 738 (A.F.B.R. 1953). But see United States v. Galyon,
19 C.M.R. 541 (N.B.R. 1955) (convening authority's ratification of unappointed trial counsel's prior participation constitutes harmless error).
13 United States v. Sims. 43 C.M.R. 96, 97 (C.M.A. 1971): United States v. Riley, 42 C.M.R. 337 (C.M.A. 1970).
14 United States v. Sims, 43 C.M.R. 96, 97 (C.M.A. 1971); United States v. Riley, 42 C.M.R. 337 (C.M.A. 1970); United States v. Pazdemik. 22 M.J. 503

(A.F.C.M.R. 1986).
15
UCMJ arts. 22-24.
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commander who has these powers must exercise them properly. The following is a discussion of the manner in which the convening authority should exercise these powers.
a. The power to detail court members. The convening authority must exercise this power personally. The authority is nondelegable. 16 Congress has required that the convening authority select and detail persons who "in his opinion" are best qualified for the duty. 17 The convening authority may not permit staff members or other subordinates to make the selections. 18 They may, however, assist in the administrative aspects on gathering and forwarding the list of nominees to the convening authority.° The list is forwarded to the convening authority through the staff judge advocate. The staff judge advocate may make recommendations. The convening authority then personally selects the court members.
The accused can challenge the selection method if the convening authority selected the members by relying upon a list furnished by a presumably biased source such as the trial counsel 2 0
The convening authority must exercise this power subject to the limitation that only qualified participants be selected. Earlier sections of this pamphlet discussed the qualifications of the various participants in courts-martial. Generally, court members must be on active duty and be in a proper personnel category. 2 I The court members may be from the convening authority's immediate command, a geographically separate conunand, or another anned force. 22
Depending upon the accused's personnel category, members may be commissioned officers, warrant officers, or enlisted soldiers.23 There may be enlisted members only if the accused submits a request, orally on the record or in writing, for enlisted members before the court's assembly. 24 When the accused submits such a request, at least one­third of the court members after excusals and challenges must be enlisted members unless physical conditions or military exigencies make them unavailable. 25 When the convening authority denies a request on the ground of unavailability, a detailed written explanation must accompany the record of tria1. 26 The appellate court reviews the explanation to determine whether the convening authority denied the request arbitrarily. 27
The convening authority must not exercise this power to select court members in a manner which would create even the appearance of unlawful command control. The issue of unlawful command control has already been discussed in chapter 2. There is, for example, an appearance of evil where the convening authority breaks with the command's past practice and selects a panel composed entirely of lieutenant colonels and colonels. 28 Also, a selection problem may arise when the convening authority selects military police personnel as court members. 29 The selection process may be challenged, and the court-martial proceedings stayed, on the grounds that the members were selected improperly." This area is covered in detail in chapter 4.
b. The power to refer cases. The convening authority must personally exercise the power to refer cases to trial . 31 32 The convening authority mustLike the power to detail members, the power to refer cases to trial is nondelegable. decide the type of court-martial to which to refer the case. 33
It is arguable that, in addition to selecting the type of court-martial, the convening authority must select a particular court-martia1. 34 The Manual states that the convening authority ordinarily refers a case to trial by indorsing the DD Form 458 (charge sheet). The charge sheet's wording contemplates that the convening authority will refer the case to a particular court-martial. 35 However, the Court of Military Appeals has held that a court-martial had jurisdiction even
16 United States v. Newcomb, 5 M.J. 4 (C.M.A. 1978).See also United States v. Ryan, 5 M.J. 97 (C.M.A. 1978).
17 UCMJ art 25(d)(2). See generally Schwender, One Potato, Two Potato : A Method to Select Court Members, The Army Lawyer, May 1984, at 12.
18 United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. Allen, 18 C.M.R. 250 (C.M.A. 1955) (dissenting opinion); see also United States v.
England, 24 M.J. 816 (C.M.A. 1987 (art. 25(d)(2) does not foreclose the convening authority personally adopting membership of a court-martial appointed

by a predecessor in command).
18 United States v. Marsh, 21 M.J. 445 (C.M.A. 1986); United States v. Kemp, 46 C.M.R. 152 (C.M.A. 1973).See also United States v. Hilow, 32 M.J. 439

(C.M.A. 1991).
20 United States v. Marsh, 21 M.J. 445 (C.M.A. 1986); United States v. Cherry, 14 M.J. 251 (C.M.A. 1982); United States v. Cook, 18 C.M.R. 715 (A.B.R.
1955).
21 UCMJ art. 25. See suprachap. 4.
22 R.C.M. 503(a)(3).

23 R.C.M. 502(a).
24 UCMJ art. 25; R.C.M. 503(a)(2).
25 R.C.M. 503(a)(2).

26 1d.
27 United States v. Rivera, 24 C.M.R. 519 (C.G.B.R. 1957) (no abuse of discretion).
28 United States v. McClain, 22 M.J. 124 (C.M.A. 1986); United States v. Autrey, 20 M.J. 912 (A.C.M.R. 1985); United States v. James, 24 M.J. 894

(A.C.M.R. 1987); United States v. Daigle, 50 C.M.R. 655 (C.M.A. 1975) (improper exclusion of qualified persons from court membership by rank); United
States v. Greene, 43 C.M.R. 72 (C.M.A. 1970).
28 United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983).
30 R.C.M. 912(b)(1).

31 United States v. Roberts, 22 C.M.R. 112 (C.M.A. 1956); United States v. Greenwaft, 20 C.M.R. 285 (C.M.A. 1955).
32 R.C.M. 504(b)(4); United States v. Motes, 40 C.M.R. 876 (A.C.M.R. 1969).
33 Id.

34 In United States v. Simpson, 36 C.M.R. 293 (C.M.A. 1966), where the convening authority selected the type of court but the trial counsel assigned
cases to particular courts, the court held that the error was nonprejudicial. See also United States v. Sands, 6 M.J. 666 (A.C.M.R. 1978), petition denied,
6 M.J. 302 (C.M.A. 1979) (error, but not jurisdictional).
38 In pertinent part, DD Form 458 reads: 'Referred for trial to the .court-martial convened by

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though the case was tried by another court-martial appointed by the convening authority. 36 Also, where the referral block on the charge sheet contained an erroneous special court-martial number, the administrative error was consid­ered nonprejudicia1. 37 The Army Court of Military Review has found error where the convening authority permitted a delegate to join a referred case with a preselected panel for trial 3 8
The UCMJ prohibits the convening authority from referring charges if he or she is an accuser in the case. 39 The UCMJ and Manual have extended this prohibition to special courts-martial 40 The convening authority is an accuser if he or she swears out charges, nominally directs another to do so, or has a personal interest rather than a mere official interest in the case's outcome. 41
c. Convening Authority for Reserve Component soldiers. The Active Component convening authority, as geographi­cally defined by AR 15-9, must refer charges against a RC soldier for a special or general courts- martia1. 42 RC or AC summary courts-inartial convening authorities may refer charges for RC soldiers to be tried by summary-courts martial.

17-3. Statutory authority
a. Officers having authority to convene general courts-martial. The UCMJ provides that the following persons may convene a general court-martial:
(1)
the President of the United States;

(2)
the Secretary concerned;

(3)
the commanding officer of a Territorial Department, an Army Group, an Army, an Army Corps, a division, a
separate brigade, or a corresponding unit of Army or Marine Corps; ....

(6)
any other commanding officer designated by the Secretary concerned; or

(7)
any other commanding officer in any of the armed forces when empowered by the President... 43

Under subsection (7), the Secretaries of the Armed Forces also have the power to designate persons to convene general courts-martial.
(1) Announcement of authority to convene courts- martial. When a commanding officer is empowered to convene a general court-martial by authority granted by the President or by the Secretary of the Army, such authority customarily is announced in Department of Army General Orders.
In the nonbinding discussion of the MCM, 1984, the drafters noted that "[Ole authority to convene courts- martial ... is retained as long as the convening authority remains a commander in one of the designated positions." 44 When a commanding officer's military organization is redesignated, reorganized, or otherwise changes its name, a request for a new designation as a general court-martial authority should be submitted to The Judge Advocate General of the Army for recommendation to the Secretary for approval or disapproval. 45
During periods of great growth in military strength or large reductions in force, the need to update designations of general court-martial convening authorities is important. As new commands are created or as old units draw down, new requests for designation as a general court-martial authority must be submitted.
The buildup and drawdown in Vietnam created problems in this area. One case illustrating the difficulties experi­enced by commanders during the drawdown is United States v. Masterman. 46 In Masterman, the accused was charged with 26 violations of wrongful sale of heroin and conspiracy to sell heroin. He was tried and convicted in Vietnam by a general court-martial convened by the commanding general, United States Army Forces, Military Region 2. In accordance with a formal redesignation of the commanding general's military organization, the action approving the findings and sentence was signed by the commanding general, Second Regional Assistance Group, United States Army Forces, Military Region 2.
On appeal the accused contended that the commanding officer who took the action on his case did not have general court-martial authority. The Court of Military Review noted that "The Commanding General, Second Regional Assistance Group, United States Army Forces, Military Region 2, is not a commander directly vested with general court-martial authority as provided in Article 22, Uniform Code of Military Justice, 10 U.S.C. 822.' 47
36 United States v. Emerson. 1 C.M.R. 43 (C.M.A. 1951).
37 United States v. Blascak, 17 M.J. 1081 (A.F.C.M.R. 1984).
3° United States v. Sands, 6 M.J. 666 (A.C.M.R. 1978), petition denied, 6 M.J. 302 (C.M.A. 1979).
36 UCMJ art. 22(b).
4° United States v. Bloomer, 44 C.M.R. 82 (C.M.A. 1971); United States v. Trahan, 11 M.J. 566 (A.F.C.M.R. 1981); UCMJ art. 23(b); R.C.M. 601(c).

UCMJ art. 1(9).
42 AR 27-10, para. 21-8b.
43 UCMJ art. 22(a). Certain Navy and Air Force convening authorities are omitted. Note that in United States v. Wilson, 47 C.M.R. 353, 354 (C.M.A. 1973)
the general court-martial convening authority was considered to be the commanding officer of an •Army Corps ... or corresponding unit." The commander

was in charge of a combined command consisting of Korean troop units, a U.S. Army Division, and various U.S. Army support units.
" R.C.M. 504(b)(1) discussion.
43 United States v. Masterman, 46 C.M.R. 615 (A.C.M.R. 1972); see AR 27-10, para. 5.2a.
46 46 C.M.R. 615 (A.C.M.R. 1972).

47 Id. at 616.
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The court agreed with the accused and held that the commander who took the action on the accused's case did not
have general court-martial authority. 48
The Judge Advocate General of the Army certified the correctness of the Court of Military Review's decision to the
United States Court of Military Appeals. The Court of Military Appeals reversed the Court of Military Review's
decision and held that "the command designation of [Second Regional Assistance Group, United States Army Forces,
Military Region 2] does not, under the circumstances... render the [action] taken null and void." 49
The court noted that during the reorganization of the Armed Forces in Vietnam, United States Army Forces, Military Region 2, the organization which convened the accused's court-martial, was reduced to zero strength and a new organization was designated to assume its responsibilities. The old organization, however, remained in existence on paper as part of the newly created organization. The commanding general who convened the accused's court-martial became the deputy senior advisor to the commander of the new organization and continued to occupy the position of commanding general of the old organization. The Court of Military Appeals noted that the commanding general of the old organization "simply exercised ... authority from a differently denominated Headquarters." 8° Thus, the court held that, under the circumstances, the redesignation of the command did not "render the actions taken [by the commanding general] null and void." 51
The Court of Military Appeals decision in Masterman indicates that the court will go a long way to find that the exercise of court-martial jurisdiction is proper, at least in circumstances where, because of a technical defect, a large number of cases tried by a command would have to be retried if the court decided the convening authority did not have general court-martial authority.
(2) Citation of authority to convene general courts-martial. When a commanding officer is designated by the Secretary of the Army to convene general courts-martial, the convening order will cite such authorization. 52 Jurisdic­tion, however, is a matter of fact and not solely a matter of pleading. The Government may augment the record whenever the issue of jurisdiction is raised. 53
In Givens v. Zerbst, 54 a post commander empowered by the President to convene general courts- martial failed to cite his authority in the record of trial or in the appointing order. The defense filed a writ of habeas corpus after conviction, alleging in part the "illegality of the court because of want of power in the officer by whom it was called to convene it."55 The Supreme Court held that as long as a jurisdictional fact exists it could be proved upon collateral attack even though such jurisdictional fact did not appear in the record of trial by court-martial. 56 Thus, the Govern­ment was allowed to show such authority and the petition was dismissed.
b. Officers having authority to convene special courts-martial. The Code provides that the following persons can convene special courts-martial:
(1)
any person who may convene a general court-martial;

(2)
the commanding officer of a district, garrison, fort, camp, station . ... or other place where members of the
Army ... are on duty;

(3)
the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;

(6)
the commanding officer of any separate or detached command or group of detached units of any of the armed
forces placed •under a single commander for this purpose; or

(7)
the commanding officer or officer in charge of any other command when empowered by the Secretary
concerned. 57

As in the case of general courts-martial, authorization by the Secretary of the Army must be shown in the order appointing the court. The authority to convene special courts-martial in which a bad conduct discharge may be
49 Id. See also United States v. Charleston, 46 C.M.R. 619 (A.C.M.R. 1972); contra United States v. Aubert, 46 C.M.R. 848 (A.C.M.R. 1972). For a
discussion of a similar problem arising out of the deactivation of Headquarters Fourth Army and the transfer of Headquarters Fifth Army to the former
situs of the inactivated Fourth Army Command, see United States v. Sandell, 45 C.M.R. 660 (A.C.M.R. 1972).
49 United States v. Masterman, 46 C.M.R. 250, 254 (C.M.A. 1973).
5° Id. at 253.
51 Id. at 254.
52 R.C.M. 504(d)(1); seeMCM, 1984, app. 6.
53 United States v. Roberts, 22 C.M.R. 112 (C.M.A. 1956).
54 255 U.S. 11 (1921).
55 Id. at 17.
56 Id. at 20.

57 UCMJ art. 23(a). SeeUnited States v. Greenwell, 42 C.M.R. 62 (C.M.A. 1970) (the power given to the Secretary of the Navy to designate commanders
to be special court-martial convening authorities is not a power which can be delegated to flag or general officers). The issue of whether Greenwell should
be applied retroactively was presented to, but not answered by the Court of Military Appeals in United States v. Ferry. 46 C.M.R. 339 (C.M.A. 1973). The
same question also was presented to the Third Circuit Court of Appeals which ruled that

Greenwell was not to be applied retroactively. Brown v. UnitedStates. 508 F.2d 618 (3rd Cir. 1975).
See also United States v. Sims. 43 C.M.R. 96 (C.M.A. 1971); United States v. Riley. 42 C.M.R. 337 (C.M.A. 1970); United States v. Hevner, 42 C.M.R. 272 (C.M.A. 1970); United States v. Walker, 42 C.M.R. 271 (C.M.A. 1970); United States v. Ortiz, 36 C.M.R. 3
(C.M.A. 1965).
180.
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adjudged is restricted by Army regulation to general court-martial convening authorities. 58
In United States v. Edwards 59 the convening authority misstated in the convening order his authority to convene the
special court-martial which tried the accused. The issue of the commander's lack of authority to convene a special
court-martial was not raised during the accused's trial, but was raised by the accused on appeal. In deciding that the
court-martial was properly convened, the court observed that while "miscitation of authority in the convening order
demonstrates lack of attention to administrative details ... [it] does not deprive the court of jurisdiction." 60 In addition,
the court noted that so long as a commanding officer has "the authority to convene special courts-martial, it makes no
difference even if ... [he is] mistaken as to precisely how he received such authority."61 For these reasons, the court
concluded that the commanding officer who convened the court-martial that tried the accused "possessed special court­
martial jurisdiction under Article 23 of the Uniform Code of Military Justice," 62 and-the accused's conviction was
affirmed.
c. Officers having authority to convene summary courts-martial. The Code also provides that the following com­manders can convene summary courts- martial:
(1) any person who may convene a general or special court-martial; (2) the commanding officer of a detached
company or other detachment of the Army; ... (4) the commanding officer or officer in charge of any other
command when empowered by the Secretary concerned. 63

As in the cases of general and special courts-martial, if the commander is empowered by the Secretary of the Army to convene summary courts-martial, authorization must be shown in the order appointing the court. 64
d. Meaning of "detached" or "separate." The Code provides that commanding officers of "separate" or"detached" units may be empowered with authority to convene special and summary courts-martial. The words"separate" and "detached" are used in a disciplinary rather than a physical or tactical sense. Thus, a battalion, company, or other unit is "separate" or"detached" when it is isolated or removed from the immediate disciplinary control of a superior and the unit's commander is viewed by the superior authority as the officer responsible for the administration of discipline in the isolated unit 65
The Court of Military Appeals has stated emphatically that designation of a command smaller than a battalion size as separate and detached does not authorize the commanding officer to convene special courts-martial pursuant to the provisions of article 23(a)(3) or article 23(a)(6) of the Code. 68 A commander of such size unit may be designated as a special court-martial convening authority by action of the Secretary of the Army.°
e. Forwarding charges. When an officer who does not exercise any convening authority or a summary court-martial convening authority determines that charges and specifications should be tried by a special or general court-martial, the Manual directs that charge sheets and allied papers be forwarded to a superior commander for disposition. 68 Formerly, paragraph 33i of the Manual for Courts-Martial, United States, 1969 (rev. ed.) provided that:
When trial by a special or general court-martial is deemed appropriate and the [summary court- martial authority]
is not empowered to convene such a court for the trial of the case ... , he will forward the charges and necessary
allied papers, in accordance with regulations of the Secretary concerned, [ordinarily through the chain of com­mand] to an officer exercising the appropriate kind of court-martial jurisdiction.

In cases where summary court-martial convening authorities failed to follow the Manual procedures set forth in paragraph 33i, accuseds argued that their courts-martial lacked jurisdiction because they were improperly convened.
In United States. v. Pease, 69 the issue of whether the provisions set forth in paragraph 33i were mandatory or suggestive was presented to the Court of Military Appeals. In Pease, the commanding officer of the accused was without authority to convene special courts-martial. Consequently, the accused was transferred to a neighboring jurisdiction whose commanding officer, although inferior in rank to the accused's original commanding officer, had the power to convene special courts-martial. On appeal, the accused contended that the court lacked jurisdiction because
58 AR 27-10, para. 5-24b.
59 '49 C.M.R. 305 (N.C.M.R. 1974).
6° Id. at 307;see United States v. Glover, 15 M.J. 419 (C.M.A. 1983).

61 49 C.M.R. at 307.
e2 Id.
93 UCMJ art. 24(a).
64 R.C.M. 504(d)(2).
ss R.C.M.504(b)(2)(A).

66 United States v. Ortiz, 36 C.M.R. 3, 5-7 (C.M.A. 1965) (commanding officer of separate company held not to possess authority to convene special
court-martial).
67 UCMJ art. 23(a)(7).
68 R.C.M. 402, 403.
68 12 C.M.R. 47 (C.M.A. 1953).

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the convening authority was inferior in rank and not in the chain of command of the accused's original commanding
officer.

The Court of Military Appeals ruled that the provisions set forth in paragraph 33i of the 1969 Manual were
suggestive rather than mandatory, 79 and held that the special court-martial had jurisdiction to try the accused. 71 In view
of the court's decision in Pease, it is clear that where the commanding officer of the accused is not the accuser, there is
no requirement that charges be forwarded through the chain of command to a superior officer. In such cases,
arrangements for the trial of an accused may be made in any appropriate manner, as transferring the accused to the
command of an officer authorized to convene an appropriate court-martial."Of course, if the disability of the command­ing officer results from the fact that he is the accuser, the charges must be referred to a superior competent authority." 72

In Day v. Wilson," the accused was convicted in Korea by general court-martial of murder and assault with a deadly
weapon. After exhausting his rights to appeal in the military, the accused filed a petition for writ of habeas corpus in a
Federal district court contesting the jurisdiction of the court-martial because the case was transferred from Eighth Army
to I Corps for trial. He also objected because the transfer was accomplished without the personal action of the Eighth
Army commander. The district court found