Federal Court Review of Courts-nlartial Proceedings: A Delicate Balance of Individual Rights and Military Responsibilities

AuthorBy Donald T. Weckstein
Pages01

Finality in the criminal lato has become an increasingly lesqpreeise term. Within the militury today, the "final"rezliew of a court-marttal m y not come until the UnitedStates Supreme Court has reviewed a soldier-dejendant's habeas corpw application. The author emmines the increasingly significant topic of jedernl civilian court review of court-martial proceedings. Among topics dis-eicsaed ~ r i e the type of action brought, the neture of the challenge to the mditary proceeding, and the extent to which potential military relief mwt be exhausted. In concluding, the author offers his solution to the difficult question: Under what circumstances should a civilian court taterfere with n military criminal detemination? I. THE SITUATION

Upon graduation from college, Charles Able Baker wa8 ac-cepted to attend graduate school. But his draft board did not concur, and he soon found himself as Private Charles A. Baker, United States Army. His already existing doubts about American foreign and military policy were deepened by his basic training experience and he became convinced that the road ta peace was not a military highway. Accordingly, he spent a good many of his off-duty hours with FARCE (Free American Riflemen for the Cause of Eros) trying to live up to their motto: "Make love not war!" On one Saturday afternoon he participated, in uniform, in a "peace-parade" on post and carried a sign that read: "Get the US

Imperialists Out of Viet Nam!" That evening the military police found Baker smoking marihuana in his barracks. When apprehended, Baker did not resist but instead kissed the M.P. on the ear.

Private Baker was charged with (1) violation of Article 92 of the Uniform Code of Militarv Justice (UCMJ) in that he

. .

'The opiniond and conelvsiona p'esented herein are thode of the author and do not neceraariiy represent the views of The Judge Advocate General's School or an" other mvernmentai ssenev.

**Pmfe&r of Law, Univeraity 07 Conneetieut: Major, IAGC, USAR'Art. 92, U~irnnr Coon OF M~L~T~ULY

JLSTICE

[hereafter cited SB UCMJ].The UCMJ is eodifled m 10 U.S.C. SI 801-040 (Supp. IV, 1909).

54 MILITARY LAW REVIEWfailed to obey a lanfu: general order prohibiting military per-sonnel from participating in aemonstratians ivhile in uniform; (2) violations of Article 131, LCMJ, in that (a) he uttered statements which xwre disloyal to the United States,' (b) he possessed and used marihuana, and (c) he committed an indecent assault on the R1.P.'

After an Article 32 inrestigation, the commanding geneial referred the charges for trial by a general court-martial. Pnrate Baker requested that he be represented bk- a Private Oliver Ames, a recent graduate of Harrard Law School who also had been drafted and at the time uas undergoins basic training at Fort Mudd. The commanding general determined that Private Ames !vas not available to serve as counsel, and appointed Captain Sovice from the post staff judge advocate's office to serve as defense counsel. Captain Nonce was himself a recent la\\-school graduate who had never befare tried a case, civilian os military. Baker testified ~n hi8 oan defenae, and on crass-examination, the trial counsel, in order to impeach Baker's testimony, inquired whether or not it iva~true that Baker had engaged in several acts of fornication with ~arlous females drumg the past six months. There was no objection and Baker answered that it was true.

The court-martial found Baker guilty of ail charges and specifications and sentenced him to two years confinement at hard labor, forfeiture of all pay and allowances and a dishonorable discharge.

Before a court of military review appellate-defense counsel '

contended that the findings and sentence were erroneous be. cause: (1) Article 134 was unconstitutionally vague: (2) Baker's First Amendment rights to freedom of speech and expremon were violated by (a) the order prohibiting participation of uniformed military personnel in public demonstrations, and (b) the prohibition of statements critical of the United States gor-ernment or its policies: (3) Kissing a male on the ear did not constitute indecent assault: (4) It w.8 prejudicial error to admit impeachment evidence concerning Private Baker's sexual misconduct; (5) The sentence was too severe. The court of military review approved the findings and sentence rejecting all conten- 'Art. 134, UCMJ; YAXUALm~ COLRT~.MIRTUL, UX!TEC STATES.

1~68

(REITSED EDITIOK) [hereafter cited BJ P C I , 19681. p. A6-21. Specificatm 190-""

'Id. st P. A622, Specifications 144, 141.

'Id. at 8 213f(21, PP. 2b7S: A€-20. Specifications 128 'Pursuant ta Art 70, UCIIJ.2

FEDERAL COURT REVIEW

tions an their merits with the exception uf number (4) which they refused to consider because trial defense counsel had not objected to the evidence. No further military appellate review was requested by the Judge Advocate General or Private Baker.l

After Baker served eighteen months of his sentence, he was released from confinement. He then brought an action in the United States Court of Claims for back pay and allowances on the ground that the findings and sentence adjudged in his court-martial were erroneous and void. In support of his contention, his civilian counsel alleged the same fire errors that appellate defense counsel had urged before the court of military review, and added: (6) The court-martial lacked jurisdiction over the offenses charged because they were not service connected: (7) Baker was denied his constitutional right to counsel by (a) the refusal to grant Baker's request to permit Prixwte Ames to act as defense counsel at the court-martial, and (b) the inadequacy and incompetence of Captain Novice, the appointed defense counsel.

The questions raised by Baker's suit are illustrative of the many problems confronting the courts in their attempt to safeguard rights of individual servxemen without unduly interfering with the special requirements of military service. Among the issue8 are: (1) What jurisdiction, if any, do the civil courts have to review military proceedings? (2) What civil remedies may be invoked to obtain such review? (5) What military remedies must be exhausted before relief may be sought from the federal courts? (4) What types of errors committed by military tribunals are subject to civil court review? (6) What is the scope of such review by the civil courts? (6) To ahat extent are the constitutional rights of servicemen limited because of their military status? The importance of these issues to ourlegal order and to the nation has become increasingly apparent with the continued conscription of large numbers of our youth in order to fight an unpopular war and support questioned foreign and domestic policies. This concern has manifested itself in a rash of recent court adjudications and legislative and executive actions concerning the nghts and obligations of se-lective service registrants and military personnel. This article uill explore the law, policies, and developments regarding a number of these issues with the objective of formulating appro- 'Additional levi- WBQ possible by a petition to the Court of Military Appeala. See Art. 67(bl (e). UCMJ.

priate standards for their resolution in cases like that af Charles Able Baker and thousands of citizen-soldiers like him.

11. THE SATURE AND STATUS OF THE MILITARY JUSTICE SYSTEM

The American soldier from the Revolution to the present has been subject to a system of rules and regulations administered by military authorities to maintain discipline, honor and security within the armed farces: The American adaptation of the Articles of War, largely based on international custom and British precedent, w s contributed to by many of our leading patriots and statesmen including George Washington, John Adams, and Thomas Jefferson.' From the beginning it included the institution of the courts-martial to exercise criminal jurisdiction aver those subject to the Articles. The present Uniform Code af Military Justice erolved in response ta the criticisms and ex-perience of the large, predominantly civilian recruited and canscripted, modern armed forces of World War II.*

The aim Of the UCMJ was to balance maximum military performance with maximum justice.Io But because of the need to achieve the former, it has often been thought necea8ary to sacrifice a degree of the latter. Thus, Justice Black has stated that military law "emphasizes the iron hand of discipline more than it does the even scale8 af justice" :> and that "[iln the military, by necessity, emphasis must be placed on the security and order of the group rather than an the value and integrity of the indi.W. A Y C m B S. WURFEL, MILITMI Law Uxom THE UNIIURM CODE OF(Id ed) i J. SXEDEYER, A BRIEF HISTORY or Coc~rs-hlamu. (1954) : W. WISTHRUP, MILITARY LAW B PRECEDENT 21-24 (2d ai. 1920) ; Fratcher, Presidential Powev to Rsgulote Yiliiary Jwtioe A Critical Study OJ

Deeinons oi the Court o i Mihtow Ameale, 34 N.Y.U. L. REV.

MILITUIT JC'STICE 9-15 (1965) ; 1 MOORE'S FEOERAL PRACTICE para 0.6 [I]

861-64 (19591.

B NLRFEL,mpra, note 7, at 10-11 (also notmg that John Ms?.

shall served 88 a Deputy Judge Advocate ~n the Revolutmnary War) ; WIITBROP, auprcl, note 7, at 21-22. See Sherman, The Chilirotion oi Iliii- "See Burns Y. Wilson, 346 US

137, 140, rch. den'd. 844 (19531; AYCOCX WURFEI., supra, note 7, at 14-15: S K E D ~ E R , supva, note 7, at 64-66. Sherman, note 8, mp7a. at 28-49. J. SFEDEXER,

MILITARY JUST~CE

'AYCOCS

tand LOW,

UBDER THE U N ~ ~ R M

COOC 4 (1963) :

Walker & Niebank, The Court o i .*lihtery Appeaia-Its History, O~gani-lation and Opcretzon, 6 VAXD. L. REV. 228, 239 (1953) : Brorman, Forewordto the Synpoiium on .*ldrtond Justtea, ihe Court FIW than .*lost, 6 YASD. L. REV. 166, 161 (1953).

"Reid Y. Covert, 354 U.S. 1, 38 (1951)

22 MAIPE L REV. 3 , s . ~

(197o).

FEDERAL COURT REVIEW

vidual." L1 The special needs of the military were accorded constitutional recognition in the Fifth Amendment exemption...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT