Unplanned bur Imperative: The Origins of the Judge Advocate General's Civil Authority

• Author: Captain Michael Hoffman
• Pages: 04

In this short article on a topic of legal history, Captain Hoffman discusses the growth of the authority of The Judge Advocate General to provide legal advice in area8 other than military justtee. He iemei~~soffmal COTW

spondenee and other documents from 2852 to 1880.

The article zs intended to hi1 a gap mentioned tn the bzbliographze notes to the offteial history of the Army's Judge Advocate General's Corps.mmm

I. INTRODUCTION

The Judge Advocate General emerged as War Department chief counsel through a subtle process. Though there were no formal boundaries, his early span of authority was limited to issues of criminal law The pouers of his office grew without official guidance or definition. Being gradual, these changes largely escaped public notice and remained obscure in the generation8 that folloived.

11. THE PROCESS BEGINS

When Major John Lee became Judge Advocate of the Army in1849 he nas the first to serve by legislative Bat in nearly 30 years.

'The opinions and ~ ~ i i c l u ~ l ~ n s ebpressed in this amcle are those of the author and

do not neeessarlh represent the >levi of The Judge Advocate Generaps School, :he Department of the lrmg, or an\ other eovernmenral aeene,

S Dep't ai Amy. The Army Lauyer h Hiataly of the Jvdee hdrocate General's

Corps, liib1976. at 261 (1976).

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In 1621 the laat statutory provision for judge advocates had been removed from the books,' and in the interim officers had oceasmnaly been detailed to handle questions of criminal Iaa. Since Lee's appointment. the United States has aliuays had lawyers in uniform. and it UPS during his tenure that their jurisdiction expanded to civil matters.

The legislation of 1849 did not specify the responsibilities of the Judge Advocate.2 nor nas it accompanied by any committee reports which might have clarified the Statute. Declaring only that a judge advocate should be appointed for the Army, the law iias followed by General Order No. 18. which announced the establishment of that office aith an unembellished reprint of the Major Lee. however, had his onn, very narrou interpretation of his authority. In 1851 he was asked to untangle and explain the statutory provi-sions for enlistment. While he replied that rt gare him "great plea-sure in sending . . . unofficially such information as I have." he also felt obliged to note. "officially the Judge Advocate knona no matter of law or fact, except what relater to the penal code. and the pilr or non-guilt of dome officer or This is the first recorded instance of the Judge Advocate rendering an opinion on a subject other than military justice.

In early 1853 he received the second request for such advice from the Commissioner of Pensions. who wanted his opinion on queations arising "under the Land Bounty laws as affected by military usage.'' Could a soldier nith tiio terms of service, one of iihiih had ended mdishonorable discharge for desertion, total his honorable serb-ice time uith a portion of the dishonorable enlistment period in order to qualify for a land bounty? If not. and the honorable enlistment a a e

I. Lee IO ColaW H Br

19791 AUTHORITY OF TJAG of sufficient length to qualify the soldier, would a record of desertion in any other enlistment disqualify him15

The shortfall could not be made up uith time from a dishonorable period of...