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
 
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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

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