DEVELOPMENT OF TEE REVIEW AND SURVEY POWERS OF THE UNITED STATES COURT OF MILITARY APPEALS

• Author: by Benjamin Feld
• Pages: 06

I. INTRODUCTION

The Uniform Code of Military Justice has governed the armed forces for almost a decade. Sumcient courts-martial proeeedings have been heid under its provisions to provide material for some positive conclusions as to its influence on military discipline and morale, Addressing a conference of Army lawyers at the Army Judge Advocate General's School, General L. L. Lemnitzer, Chief of Staff of the Army, said:

I believe that the Amy and the American people can take pride in the positive strides that have been made in the administration and application of military law under the Uniform Code of Miiitaly Justice. The Army today has nehiwed the higheat state of discipline and gmd order in ita histon.1

A different conclusion as to the state of discipline in the armed forces was reached by Frederick Bernays Wiener, a long-time student of military justice. Referring to courts-martial experience under the Uniform Code, he said:

It ia difficult to resiat the eonduaian that we would hare better din& piined selvioes if they removed the administration of miiitarg justice from the cope and the I~wers. and returned to the traditional pimess of self-adminiaterod discipline, aith ahplifld praedvre and with only au5eient legal putidpation to eliminate patently inadmissible evidence and to inawe the obaervanee of basic standards of decency snd fair piay.2

This srtieie was adapted from B thenis entitled "The United States Court af Militsly Appeals: A Study of the Origin and Early Development of the First Civilian Tribvnai for Direct Review of Courts-Martial (1951-1969)1' presented fer a Doctor of Philosophy degree while the author was a student in The Graduate School, Georgetown University, and it ia published with the permission of The Graduate Sehaai of Georgetown Univeraity. The opinionsand conelusionn presented herein are those a i the author and do not neceiaarilg Iepreaent the views of 'The Judge Advocate General's School nor any other governmentai agency.

'*Commissioner, United Ststen Court of Military Appeals: LL.B., 1941, S.J.D., 1048, Brooklyn Law Sehoai; Ph.D., 1960, Georgetown Unirerrity: Author, A Manual far Courts-Martial Practice and Appeal (Oeeana, 1957). and numerom other legal artidea.

1 Lemnitzer, The Ezpending Role of the A m y Lazuyev, 60 Judge Admeate Legal Service 1811, 8 (1060) (DA Pam. 27-101-18, 7 October 1969).

3 Wiener, Soidiom Versus Lawyerr, Amy, ("01. 11, No. 4, Norember, 1058) 58, 64.

*GO 4IPOB 171

As the "Supreme Court" of the military justice system, the Court of Military Appeals is a focal point for much of the condemnation and commendation of the Uniform Code. When the Court of iMilitary Appeals convened on July 26, 1961, in Its first public session, it admitted to membership in its Bar, Major General Reginald C. Harmon, The Judge Advocate General of the Air Force. He remarked that he was "glad" to be present on that "historical occasion," and he expressed the "fervent hope and expectation" that the Court would inspire "the greatest of confidence in the hearts of the American people."3 Five yean later, General Harmon publicly proclaimed that he would prefer to see the Court abolished.' In his opinion, it had not contributed significantly to the effective and efficient operation of the military justice system.h On the other hand, Wiener maintains that, despite his conviction of the need for a return to former practices, certain decisions by the Court of Military Appeals indicate that it is an important safeguard against lapses in essential fair-ness by military commanders, and that the "country is simply not going back to any System of military justice which lacks that safeguard."' The same conciusion was stated concisely in the civilian N w y Times in an editorial which commented on one of the Court's decisions. "Thank God," said the editorial, "for the United States Court of Military Appeals."'

War may be the final arbiter of the dispute on the need for the Court of Military Appeals in the military justice system. In

3 United States Court of Military Appeals (hereinafter referred to 61s USCM.4), Llinute Book I (25 July 1851).

1 Address by General Harmon, Judge Adweate Asaoeiation in Chicago, 17 August 1954. He urged repeal of the Uniform Code and reenactment Of the Elaton Act. A neees~ary consequence of that action would be abolition of the Court and recreation of a ieparste Judioial Council for each of the services. See Harmon, Progress Under The Unijarn Code, Judge Adweate Journal(Bull. No. 18, October. 1854) 10.

5 1854 USCMA and the Judge Adwostes General of the Armed Forces and Genersl Counsel of the Dep't Of Treasury Ann. Rep. 51 (hereinafter cited as L'SCMA and TJAG Ann. Rep.). General Harmon restated the contention that "military justice WBJ adminiitrated more efficiently" under the Elston Act than under the Code. A PBrtieYlsr mum of complaint was the difficulties of the appellate processes. Aa an alternative to a return to the Judieid Caunmi, he pmposed that appeals to the Covrt be conditioned upon the grant of a "Certificate of Goad Cause'' by one of The Judge Advocates General.This proposal was slso eonntrued by bath the Ameriean Legion and the Court BI a step toward abolition of the Court. See Report of the Special Committee of the Amencan Legion To Study CSCMA and the Uniform Code of Military Justice 80 (lS56j; Hearings Bejore the Suboommittcs om Departmmt ofDejrnss Brdget jar I856 of the House ComrnLttee on Appro-mationa, 84th Cong., 1st Sess. 709 (1966).

6 wiener, 09. oit. wpva note 2, st 62.

Rroaon f o i The Couit, Editorial in Navy Times (March 3, 185Sj.178 *oo 4IPOB

REVIEW AND SURVEY POWERS OF COMA

the meantime, it is here; and it is unquestionably a viable and vital institution directly affecting the strength of, and civilian confidence in, our armed forces.

The Court is young and in a state of fiux. It is still feeling its way in the confused world of civilian-military relations. Its decisions are subject to constant critical analysis by military and legal commentators.B This article examines the Court itself. It considers some of the special problems that faced the Court and the manner in which the Court attempted to solve them. It is hoped that the study will provide a better understanding of one of the newest and most controversial institutions of the Federal Government.

11. VOTE REQUIRED TO GRANT A PETITIOS FOR REVIEW

Under the Uniform Code, courts-martial convictions are re-viewable by the Court in one of three instances: (1) If the accused is a general or Rag officer or the sentence extends to death, (2) If The Judge Advocate General of the accused's service files B certificate for review, and (3) On "good cause shown" in a petition for grant of review filed by the accused in a case in which the sentence includes a punitive discharge or confinement for a year or more.' Before formal organization of the Court, it was ex-pected that the major portion of the case docket would be comprised of petition cases. The figures for the first nine months of operation established the correetness of the prognostication, Less than eight percent of the 484 cases received by the Court came up for review by way of certificates of The Judge Advocate Gen-eral; there was only one mandatory case; and the balance of the docket consisted of petition cases.'O By the end of 1958, the percentage of certificate cases had declined to little more than two percent of the total of 12,816; mandatory cases comprised less than one percent; thus ninety-seven percent of the caseload was made up of petition cases."

B Frateher. Preadenlial Power to Ri~viate Milttaw Justice: A CritLal

sm, 28 St. John'r L. Rev. I9

\.""",.

B Uniform Code of Military Justice, art. 67, 10 U.S.C. 0 867 (1958) (here- 10 Interim Report of USCMA TIO Congress 2-8 (1952).13 1958 USCPA and TJAG Ann. Rep. 87.

inafter eited as UCXJ).

100 481bB 179

Txo significant decisions pertaining to the petition for review were made by the Court in its organizational stage. One related to the "good cause" requirement of the petition: the other pertained to the rate by the judges that was required to grant review of a petition.

Its organic act empovered the Court to prescribe its own rules of procedure and the number of judges required to constitute a quorum.lz Except possibly for the procurement of administrative assistants, the first order of business wuld have been the promulgation of the rules and determination of a quorum. However there was an unexpected delay in the nomination and confirmation of the judges and they did not take office until almost a month after the Uniform Code became effective. The delay gave special urgency to promulgation of the rules of procedure and thereby left very little time for preliminary study. Also, it seema clear that the judges...