Observations on the Uniform Code of Military Justice: 1954 and 2000

• Author: Major George S. Prugh, Jr.
• Pages: 03

2000] OBSERVATIONS ON THE UCMJ 1954 & 2000 21

OBSERVATIONS ON THE UNIFORM CODE OF MILITARY JUSTICE:

1954 AND 2000

Editor's Note: In 1954, then-Major George S. Prugh wrote his observations on the Uniform Code of Military Justice (UCMJ). At that time, the UCMJ was relatively new law; its success was still being tested and the public was still critical of military justice. In 2000, Major General (Ret.) Prugh reflected upon the fifty years of military justice since the UCMJ was passed. His observations from 1954 and 2000 are combined here as one article.

OBSERVATIONS: 19541

MAJOR GEORGE S. PRUGH, JR.2

In the periods immediately following World Wars I and II there arose in some parts of the press and the legal circles a considerable agitation concerning the system of military justice in operation in the war time armies numbering millions of American citizens.3 During World War II about 13,000,000 men had seen service in either the Army or the Navy, and of this number about 147,000 were tried by general courts-martial. At its peak, in October 1945, the Army's prison population counted five men for every one thousand servicemen.4 Any system of justice-military or otherwise-was bound to be carefully scrutinized when such significant numbers were being affected. Although there was little comment during the actual war years, as peace descended the passions cooled, memories of the fighting dimmed, and the public appeared to become compassionate

toward those servicemen who languished in the various confinement facilities serving sentences imposed by courts-martial. Attention was directed not so much to those convicted of civilian-type crimes as it was to those convicted of the so-called military offenses, constituting about two-thirds of the servicemen who were serving confinement.

The American civilian saw little criminality in the military offenses, which have no true counterpart in the civilian justice system although these offenses were made crimes, many carrying extreme penalties, by the laws of the United States. He forgot that the standards of civilian criminal procedure cannot be applied absolutely to military courts,5 and he failed to recognize that "the degree of punishment imposed by a court-martial is closely connected with the maintenance of discipline in the command."6 The maintenance of discipline was, with the advent of peace, of little importance to the civilian. The words of Secretary of War Robert Patterson remained largely unnoticed, when he wrote in the Tennessee Law Review in 1945 that "an army without discipline is a mob, worthless in battle,"7 for of course it was not long afterwards that the battles were over and the troops were returning to be civilianized.

Some observers noted that the military justice system operating during World War II resulted in few, if any, convictions of the innocent, and few, if any, acquittals of the guilty, clearly the goal of any system of criminal law.8 But such plaudits were overwhelmed by the denunciations of command control-courts obedient to the whim of a military commander-and excessive sentences.

In 1944, a general could order into battle millions of men, a high percentage of whom faced certain death. In 1946 the public began to doubt the wisdom of permitting that same general to act in matters of military justice, regardless of the relationship of justice to discipline, and discipline, in

turn, to victory in battle. The soldier at the Rapido or the Bulge or Okinawa thought no punishment was too severe for the shirker or deserter, but some civilians who had fought the war vicariously appeared to express horror at the long sentences courts-martial were imposing. A few excesses and abuses were seized upon to demonstrate the failure of the military to dispense justice. Without noting that almost invariably the same cases were being cited repeatedly as such examples, the "public" demanded "reform"-and "reform" it got. The story has been told too often and too well to be repeated in the limits of this article9-how committees were appointed to examine and report, how the Elston Act10 became the law for the Army, how "unification" was achieved, and how the Uniform Code of Military Justice was enacted into law.11

Now, it seems apparent that any American code of military justice must serve a dual purpose: (1) it must establish a framework whereby offenders are appropriately and promptly punished by means of an enlightened procedure fully in accord with the basic principles of American justice; (2) while at the same time, not only not impeding, but on the contrary, aiding the military commander in accomplishing his assigned mission.12

Traditionally, but mistakenly, the scheme of military justice was said to rest primarily upon the second of these purposes, being defined as a system for the maintenance and enforcement of good order and discipline in the armed forces, or as simply "an instrumentality of the executive power, provided by Congress for the President as Commander-in-Chief, to aid him in properly commanding the Army and Navy and enforcing discipline therein."13

The new Code clearly re-affirmed the congressional and military intent of long standing that American military justice must rest equally upon both bases.14 The Court of Military Appeals in an early case announced that "we believe Congress intended, insofar as reasonably po

sible, to place military justice on the same plane as civilian justice, and to free those accused by the military from certain vices which infested the old system."15 Although it may sound as if the Code thereby established a very fundamental change in the philosophy behind military justice, the foregoing language of the Court of Military Appeals is hardly different from that expressed over half a century ago by Colonel Winthrop, one of the leading authorities on military law, when he wrote that a court-martial is "so far as it is a court at all, and within its field of action, as fully a court of law and justice as is any civil tribunal . . . it is bound, like any court, by the fundamental principles of law."16

Nevertheless, regardless of the rationale, the Code made certain drastic changes in the procedures of military justice. It established a more or less uniform system for all of the armed forces, designed to function in both peace and war; created a sort of civilian "supreme military court" to place the seal of judicial sanction on interpretation of the law; engrafted many civilian legal practices to the military; and made the part of lawyers more prominent in every phase of the system. Space is not here available for a detailed study of the provisions of the Code.17 Suffice it to say that almost without exception the changes tended to complicate a simple system beyond reason and, while purporting to increase the safeguards afforded an accused, permitted the escape of the guilty through a multiplication of legal loopholes that reflected the ascendancy of form over substance. The Code met with almost universal approval, although a few observers felt that it did not go far enough to eliminate command influence.18 Only a few voices were heard to express doubts that the system would work.19

Now, from the vantage point of three years of the Code's operation, tested in some measure by the Korean police action, we are in a fair pos

tion to make some observations about the Code and just how it works in practice.

Anyone evaluating the Code must consider that a primary purpose of the framers of the Code was to create a system that would be regarded with favor by the public, which would earn and hold the public's confidence. In this respect all indications are that the Code is performing well. For example, examination of law review articles over the past few years clearly reveals a trend away from the blanket and ill-considered condemnations of "drumhead justice" and toward scholarly examinations of the legal problems dealt with by Boards of Review and the Court of Military Appeals. Many law schools teach courses in military law today, and various reporting systems carry leading opinions of the Court of Military Appeals. The judges of the Court of Military Appeals reported in 1954:

Experience has shown that as the members of the State and Federal bars and the public generally have become familiar with the scope and effect of the Code, and its beneficent provisions, they have lost many erroneous concepts concerning the abuses supposedly present in military justice. Many lawyers now realize that procedures under the Code afford protection to an accused that compares favorably with that found in civilian courts.20

Another effect of the Code has been the increased participation of military lawyers in the military justice system. There is no doubt that trials by general courts-martial are now conducted in a more professional manner than prior to the Code-with three lawyers serving in the various capacities of law officer and counsel for the accused and for the government, this result was inevitable.

The techniques of practice of this highly specialized form of law, military justice, closely parallel those of the civilian criminal law practitioner. The individual judge advocate officer, assigned to military justice duties, may be expected to present cases, prepare briefs, argue appeals, submit motions, and draft instructions for the court in a manner familiar to civilian lawyers. If assigned as a law officer or member of a Board of Review he

functions as a judge, with all of the responsibilities of that important position.

The scholarly debates of questions of law by members of the corps engage the attention of a large segment of the civilian population, as well as the military, through professional and institutional publications. As the civilian gradually realizes that the military practitioner truly represents the highest traditions of the bar, or, perhaps more realistically, as the civilian sees the military practitioner use...