United States v. DuBay and the Evolution of Military Law: The Fourth George S. Prugh Lecture In Military Legal History

• Author: Andrew S. Effron
• Position: Chief Judge, U.S. Court of Appeals for the Armed Forces. J.D., 1975, Harvard Law School; B.A., 1970, Harvard College
• Pages: 1-85

MILITARY LAW REVIEW

Volume 207 Spring 2011

UNITED STATES v. DUBAY AND THE EVOLUTION OF

MILITARY LAW

THE FOURTH GEORGE S. PRUGH LECTURE

IN MILITARY LEGAL HISTORY

ANDREW S. EFFRON

This is an extraordinary time to serve as a judge advocate. We are at

war. Novel legal issues confront you in a highly challenging

environment. Many of you have deployed to the combat arena in Iraq

and Afghanistan. You have demonstrated great courage in the field, in

the courtroom, and in the corridors of power, earning the deep respect of

a grateful Nation.

Your leaders place a high value on continuing professional

education. The faculty at the Legal Center and School infuses your

courses with historical perspective, providing inspiration and guidance

for perilous times.1 Honoring the past, the School has built upon the

foundation established by leaders such as Major General (MG) George S.

Prugh (1920–2006), who initiated this lecture series.2

* This article expands upon remarks delivered on April 28, 2010, to members of the staff

and faculty, distinguished guests, and officers attending the 58th Graduate Course and the

53d Military Judges Course at The Judge Advocate General’s Legal Center and School,

U.S. Army, Charlottesville, Virginia. The chair is named in honor of Major General

(MG) George S. Prugh (1920–2006).

** Chief Judge, U.S. Court of Appeals for the Armed Forces. J.D., 1975, Harvard Law

School; B.A., 1970, Harvard College.

1 Cf. JAMES E. BAKER, IN THE COMMON DEFENSE: NATIONAL SECURITY LAW FOR

PERILOUS TIMES 20 (2007) (emphasizing enduring constitutional values in the context of

addressing contemporary national security issues).

2 General Prugh’s many contributions to the law, our national defense, and the Judge

Advocate General’s Corps (JAGC) included service as The Judge Advocate General

(TJAG) of the Army from 1971–1975, and a distinguished career on the faculty of the

McGeorge School of Law. See infra Appendix A (biographical summary).

2 MILITARY LAW REVIEW [Vol. 207

This morning we shall discuss a case from the Vietnam era that has

continuing contemporary significance, United States v. DuBay.3 I thank

the Regimental Historian, Fred L. Borch III, the faculty, and the Prugh

family for the great privilege of presenting the Prugh lecture.4

Part I. Prologue

“Although many reasons dictate that cases such as

DuBay should be given the highest visibility, DuBay is

characterized by near obscurity.”5

In appellate proceedings, attorneys and judges frequently refer in

shorthand terms to “DuBay hearings”—the procedure for post-trial

factfinding—much as they might cite a statute or rule.6 Notwithstanding

its current practical import, DuBay at first blush would appear to offer

little of historical interest. The text of the short per curiam decision in

DuBay does not even occupy two pages in volume 17 of the decisions

published by the Court of Military Appeals. The content of DuBay,

which is closer to an order than an opinion, simply describes the

mechanism to be used in post-trial factfinding proceedings. The case

does not set forth any groundbreaking legal analysis. The text barely

discusses precedent, and contains only a fleeting reference to litigation

leading up to the decision.

But there is more to DuBay than appears on the face of the opinion—

a point emphasized to me by a former judge advocate I met in Topeka,

Kansas, during a Project Outreach visit to Washburn Law School.7 While

3 37 C.M.R. 411 (C.M.A. 1967). In treating DuBay as an example of evolutionary change

in military law, I have drawn upon the approach to military law suggested in Walter T.

Cox, III, The Army, The Courts, and the Constitution: The Evolution of Military Justice,

118 MIL. L. REV. 1 (1987).

4 I thank Rose Bennett, Fred L. Borch III, John S. Cooke, William A. DeCicco, Scott

Goldman, Francis A. Gilligan, Captain (CPT) Madeline Gorini, Elizabeth Parker,

Michele Pearce, Mary Rohmiller, Kevin Scott, Scott L. Silliman, Charles J. Strong, and

Malcolm H. Squires, Jr., for helpful comments during the preparation of the lecture and

this article.

5 HOMER E. MOYER, JR., JUSTICE AND THE MILITARY 767 (1972).

6 See 2 FRANCIS A. GILLIGAN & FREDERIC I. LEDERER, COURT-MARTIAL PROCEDURE § 25-

12.20, at 25-7 (3d ed. 2006); DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE, § 15-

2[B][3], at 820 (7th ed. 2008).

7 See United States v. Macomber, 67 M.J. 214, 215 n.1 (C.A.A.F. 2009) (noting the

Project Outreach hearing at Washburn Law School). The Dean of Washburn, Thomas J.

2011] FOURTH GEORGE S. PRUGH LECTURE 3

in Topeka, the Justices of the Kansas Supreme Court graciously invited

us to a meeting in their courthouse. One of our hosts, Justice Robert

Davis, mentioned his service as a judge advocate in the 1960s, which

included a tour in Korea and a later assignment with the Government

Appellate Division. He told us that he had worked on command

influence litigation that established a new form of post-trial proceeding.

When we asked if the case might have been named DuBay, he broke into

a big smile and told us that it was, indeed, DuBay—a case that generated

national controversy and consumed more than a year of his legal career.8

When Fred Borch kindly mentioned the Prugh lecture, I thought of the

excitement in the eyes of Justice Davis when he described DuBay and

decided to explore the history behind that two-page opinion.9

Romig, served as TJAG of the Army from 2001–2005, retiring in the grade of MG. See

Biography of Thomas J. Romig, http://www.washburnlaw.edu/faculty/romig-thomas.php

(last visited Aug. 17, 2011).

8 See DuBay, 37 C.M.R at 411 (listing Robert Davis as one of the counsel for Appellee,

United States). Robert Davis served in the Army from 1964–67, and returned to his home

state of Kansas to practice law. He was appointed to the bench in 1984, and served on the

Kansas Supreme Court for seventeen years, serving as Chief Justice at the time of his

death on August 4, 2010. See www.kscourts.org/kansas-courts/supreme-court/justice-

bios/davis.asp; http://www.kscourts.org/Court-Administration/News-Releases/Davis-Ser

vices-2010.pdf.

9 MOYER, supra note 5 (containing substantial information and commentary about the

DuBay litigation). See id. at 701–02, 715–16, 745–46, 755–68. In discussing the “near

obscurity” of DuBay in 1972, Moyer attributed that condition to “the near-total lack of a

reported, public record,” and to the issuance of a brief appellate opinion that did not set

forth the underlying facts or circumstances of the case pertinent to the decision. Id. at

767–68. See also Luther C. West, Military Justice—Fort Leonard Wood Style in

CONSCIENCE & COMMAND 122–35 (J. Finn ed. 1971) (relating his observations about the

litigation, supplemented with extracts from various filings in the DuBay cases).

The obscurity of the underlying facts and circumstances of the DuBay litigation has

been compounded by the difficulty in assembling official records of the pertinent

proceedings. During the 1966–68 period, DuBay and the litigation would encompass

nearly one hundred cases. See infra Part VII. The appellate proceedings primarily

involved three lead cases: (1) United States v. Phenix, No. CM 414832 (A.B.R. Mar. 17,

1967) (unpublished) (discussed infra Part III.A); (2) United States v. DuBay, 37 C.M.R

411 (C.M.A. 1967) (remanding Phenix, DuBay, and twelve other cases for further

proceedings) (discussed infra Parts III–IV); and (3) United States v. Berry, 37 C.M.R 428

(C.M.A. 1967) (remanding for further proceedings), 39 C.M.R. 541 (A.B.R. 1968)

(review following remand) (discussed infra Part VII.A). The Clerk of Court for the U.S.

Army Judiciary, who serves as the official custodian of the pertinent records of trial and

intermediate appellate records, has advised the author that the Army cannot locate the

official copies of the proceedings and decisions at trial and before the board of review in

Phenix, DuBay, and Berry. E-mail from Malcolm Squires, Clerk of Court for the U.S.

Army Judiciary, to the author (25 January 2011, 16:55:00 EST) [hereinafter Squires e-

mail] (copy on file with author). Fortunately, the clerk’s office was able to locate the

records in a number of other cases coming out of Fort Leonard Wood at the same time, in