A Supplemest to the Survey of Military Justice

• Author: By Lieutenant Colonel George 0. Taylor, Jr. ** Captain Michael F. Bairett, Jr.
• Pages: 03

1. ISTRODUCTIOS

   This supplement corers the cases decided by the United States Court of Xlihtar>- Appeals during the October 1961 term, 2 October 1964 through 27 August 196j1 The purpose of the annual supplement is to present a concise statement of the subatantire and pracedural issues of importance which the Court has considered during the term.

   11. JURISDICTION

   l m t e d States 5 . Winton' w.i the only case decided during this term which Involied a j:mts(i,ctional issue, and it did not establish

   any sipmficant iegnl precedents in this area as the decision rested on facts peculiar to the ease. The jurisdictional question related to a charge of forger) in violation of article 123 of the Cntjom Code of .Md,ta?-y Justiee.j Honerer, there wre other offenses Involved and the decision also deals with the sufficiency of one of these specifications which is discussed later, inha IIIAS. The forgers offense involved making the false signature of a co-maker of a note which accompanied a loan application and was payable to the United States Air Force Securitb- Service Federal Credit Knion. San Antonio, Texas. At the trial defense moved to dismiss the charge for lack of jurisdiction on the ground that the requirements of article 3(a) of the Code had not been met. It was shown that the enlistment during which the alleged offense was committed had expired, that the accused !vas honorably discharged as a result, and rhat he !\as out of the service for several months before the charge mas preferred. It had not been preferred until after his reenlistment and return to Korea Trhere the note had previously been executed. Since forgery is punishable by eonfinement for five yeam,' the defense contention wi.as based an an argument that the offense could be tried in a United States district court. Section 1006 of Title 18 of the Cn;ted States Code mas cited in support of this argument The cited statute proiides in pei'tnent part for the trial of certain offenses in a United States district court when committed br ii person connected in any capacity 1~1tha credit association acting under the laws of the United States, whether the offense is committed within or outside the limits of the United States. The Court held that the motion was properly denied because, considering the evidence in the light mast favorable to the accused, it appeared that he had no connection with the credit union p~ior to his application for a loan and could not have become a member until the loan was approved. Since the forgers occuried prior to this time. seetion 1006 did not apply. Therefore, as the offense \vas committed in Korea, no federal, state, or territorial court had jurisdiction af the offense

   111. PRETRIAL AND TRIAL PROCEDCRES A. CHARGES ASD SPECIFICATZOSS 1. Dela~in D8spoaition.

   The decision in Cmtd Statis 1. Tihbs ' IS significant in that it

   8 Hereafter referred to as the Cade and cited BE UCMJ art. -~..

   i See MAXUAL FOR COIRN-M*RTIII. CSIIED STWES, 1961, pa1a 12ir

   $ A [hereafter referred to as the Manual and cited as MCDI, 1961. para .... I.

   3 15 U S.C \%.A 360, 36 C >I R. 322 (1965)

   ico bi61B

   SURVEY OF XILITARY JUSTICE

   tends to amplify the position taken by the Court in the previous term on pretrial delays.& The accused in Tibbs pleaded guilty to charges of housebreaking and attempted larceny on two separate occasions. A stipulation between the parties indicated that he had been caught in the act on each occasion. After a hearing an the voluntariness of the guilty pleas, the trial defense counsel moved to dismiss the charges for denial of due process in violation of articles 10 and 33 ai the Code. The record indicated that after the pretrial confinement of the accused, fifteen days elapsed before he was advised of the mvom charges and fifty-five days elapsed before he was brought to trial. Prior to denying the motion, the law officer expressed his intention to do so unless the defense could show that the failure to comply with article 33 had prejudiced the accused's case. In finding no violation of the Code by the Government, the Court found that even if the law officer based his decision upon an improper rule of law, there was adequate evidence in the record to permit determination by the Court on the merits of the case. From the evidence it was concluded that the notification purpose of article 10 was satisfied since the accused was caught in the acts and there could be no question in his mind as to the reason he was confined; that the various periods of time elapsing between each stape of the pretrial processing of the case was not unreasonable, the test being reasonable diligence rather than constant motion in bringing the charges to trial; and that article 33 was not ground for reversing an otherwise valid canviction since the record showed it \vas impracticable to fonvard the charges and allied papers to the general court-martial authority within eight days of the accused's confinement.'

   United Starer V. Sehaiek, 14 U.S.C.Y.A. 311, 34 C.I.R. 161 (19641, the amused was confined far nmety-six days wthout being charged. The Cavrt heid that on the posture of the record of the ease, which contained no explanation of the delay, the mue could be raised for the first time before the board of review. However. it was aim held that the board of review was in error in ~vmmarily dimming the charger becavse the 1s8w was not raised at trial and the Government xias never accorded a hearing on the 4"estim

   7 Jvdge Fergvaon dissented, stating that he would require a rehearing far the limlted purpose of determining if there was an appropriate explanation for the delays. He commented that the delays could be found to be reasonable and not oppressive only by the use of speculation which he would not Sub. stltvte for a reasoned mqury. It was also his opimon that affirmance by the majorlty resulted ~n the setting aside, If only on an d hoc bans, the earlier decisions in United States Y. Schalck, a p ~ a note 6, and United States

5. Bra-, 10 U.SC.MA. 498, 28 C.M.R. 64 (1959).*GO (LlbB 83

   2. lrimdmrnt.

   The Court refused to appls- u a i w ~n Vnitcd Stntrs b. Emt-re the defense did not ohject to the amendment, after, of an aheent nithout leave specification which increased the mahimum punishment authorized and to which the accused subsequently pleaded guiltr. Although a specification can be amended at

   3. Sli@ei?nrii.

   In addition to the jurisdictional issue, Vnited States 1.. Wmtone also presented a question of the sufficiency of a specification. After his reenlistment as preiiousis- discussed, supra 11. the accused made another loan application. As a result, he was convicted of Ialbely and wthuut authoiization, with intent to deceiie, making the sipnature of another to a recommendation on the loan form

   c o t d to anyone. The Court, in upholding the sum-

   municatinp obscene language oves the telephone m violation of article 131 of the Code. A board of review modified the findings and reduced the sentence on the piound that the specifications

   670. 6:4. 33 c I

   R 202, 206 (1063) 404 35 CMR 376 11965)

   84 *GO esim

   SURVEY OF MILITARY JUSTICE

   alleged no more rhan communicating ohscene language in violation of the same ai+icle.!? On certification b? The Judge .idrocate General of the biniy. the Cocrt declded that the board w.a correct in holding that the specifications did not set out the offenses of indecent liberties. The decision indicated that although the offense does not requre phrsml cnntact, the conduct of the accused must be in the presenie of the victim.

   l'nztid Stiitrs t,, DrAiigr10 involved the suffic~enc>-of two

   specifications alleging the submission of false official reports which xiol~tion of article 107 of the Code. The hether the specifications wre rendered failed to specifs an intent to deceive.

   The Court found that the failure to allege the intent to deceive ir-as of no importance because rhe specifications were sufficientto allege a falsification of a material matter within the jurisdiction of the United States in violation of the I'mtcil States Code '+

   which may be prosecuted as a noneapital offense under article 134 with the maxunum punishment being the same as for an article 1 O i violation. In reaching this conclusion. the Court stated that the designation of the article of the Code mentioned in the charge is of no consequence when the accused IS fairly apprised by the facts pleaded of the nature of the offense he is charged with committine and is not misled in his defense.

   In Cnded Siirirs z . G,o,dano," a question of auffieienc) ivas raised as to one of the se\-ei.dl specifications of which the accused were convicted. The specification in question alleped that the PIC-cused conducted themselves in a manner unbecoming officers and gentlemen bk- eonapiring xrith a named enlisted man and among themselves to commit the offense of failure to obey a lawful!.egulatlon in \idatinn of aiticle 133 of the Code. The Court found the specification insufficient to allege either the offense of conspii'acs under article 81 or a i i o l a t m of article 133 of the Code,

   1 The baaid deemon. CM 412118, Knathe victim nn one speeifieafion UBI a femalespemheatm \la% B male child. The Soaidthe female child YSB punichable by rhefar communicating ob3cer.e language toagainst the male child punishable b) the lesser punishment piuvldedfor B mmple disorder The eertxfied question did not ask the Court Io rule on whether the boaid was eoriect in so diitinguirhlng the spec.hcai~onJ, and df,

   110 comment was Fade on :his aspect of the board decnan 16 U.8 C.41 A 423, 36 C . I R. 395 (1966).

   c S.C 5 1001 11964)

   U S.C M A. 163, 31 C I R 136 (19641

   *GO 8idEB 85

   1 The baaid deemon. CM 412118, Knathe victim nn one speeifieafion UBI a femalespemheatm \la% B male child. The Soaidthe female child YSB punichable by rhefar communicating ob3cer.e language toagainst the male child punishable b) the lesser punishment piuvldedfor B mmple disorder The eertxfied question did not ask the...