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The Bar Association of the District of Columbia
Military Law Committee

Written Comments submitted 

March 13, 2001

to the:

COMMISSION ON THE 50TH ANNIVERSARY 
OF THE UNIFORM CODE OF MILITARY JUSTICE 
(The Cox Commission)

Specific Questions, Perspectives, and Matters for Consideration 

Relating to the Commission's Final List of Topics Published
February 5, 2001

(BADC's "General Comments and Recommendations" are submitted separately)

To: The Honorable Walter T. Cox, III, Senior Judge, United States Court of Appeals for the Armed Forces, Chair, and the Honorable Members, of the Commission on the Fiftieth Anniversary of the Uniform Code of Military Justice

The Bar Association of the District of Columbia (BADC), established in 1871, is the second oldest voluntary bar association in the United States. Throughout its history, the BADC has taken an active interest in developments of the law, and has conducted training programs and published numerous handbooks addressing various areas of the law. The BADC has frequently testified before Congress and various committees and commissions considering developments in the law. 

BADC has taken an active interest in military law, and twice within the past few years has sponsored Recommendations adopted by the American Bar Association addressing military law issues. BADC considers it a privilege and a duty to participate and provide a civilian bar association perspective to the Commission on the Fiftieth Anniversary of the Uniform Code of Military Justice, popularly known as the ACox Commission.@ It has been almost two decades since the Congress has held any hearings on the operation of the military justice system, and more than three decades since the Congress has held hearings that went beyond very limited aspects of this system. We do not believe that in the last three decades at least there has been any outside (non-governmental organization) effort to comprehensively examine the system as a whole, and to make recommendations to improve it to ensure it is operating as effectively and as fairly as is practicable. We view it as most appropriate that an effort to do that has now been undertaken under the sponsorship of the National Institute of Military Justice, and we hope that this will be the start of a process which will thoroughly examine and then make appropriate changes needed to modernize the Code and the military justice system.

In a separate document we have provided AGeneral Comments and Recommendations@ which The Bar Association of the District of Columbia believes will be helpful to guide the Commission in its deliberations. These arise from a broader philosophical perspective, and encompass specific recommendations for change. In the current document, BADC=s Military Law Committee provides questions, considerations, and perspectives on many of the topics the Commission has promulgated for comment. The BADC has taken no position on any of these issues beyond those set forth in the AGeneral Comments and Recommendations@ submitted to the Commission today. This document contains comments and suggestions, which are intended not so much to make recommendations or suggest Aanswers@ as to indicate lines of inquiry which we believe ought to be pursued by this and subsequent studies. 

BADC suggests that there are many persons and groups with varied perspectives which need to be considered by those seeking to change and improve the military justice system. At this point in the process, BADC believes it can best assist the Commission by simply suggesting lines of inquiry, and points to consider, as the Commission reviews the specific areas of potential changes which it has under consideration. Other studies will undoubtedly follow, hopefully to include congressional hearings, and hopefully leading to a comprehensive bill to modernize the military justice system. It is critically important that, wherever it is available, empirical data be assembled to inform the judgment of the Commissioners and other decision makers. BADC recognizes that it does not have access to much of the data which would assist in pointing to appropriate resolutions to the questions which are presented. 

For all these reasons, BADC does not, in this document, attempt to provide detailed Asolutions@ or to outline the precise nature of proposed changes. Rather we hope to further the debate and discussion by presenting background information and perspectives to be considered, relying on the open and public process to ensure that the end result is the best that is achievable. In many cases, where we have provided no specific comment on one of the Commission=s topics, other responses appropriately address the same subject matter.

We wish to emphasize that in our view many rights and options once available to persons accused within this system have been reduced or eliminated, particularly in the past two decades. We urge that further reductions in such rights or available options should be recommended or effected only when there is evidence clearly establishing that such reductions are manifestly necessary. 

Respectfully submitted,



Philip D. Cave 
Co-Chair 
Neil A. Kabatchnick
Co-Chair
Military Law Committee
The Bar Association of the 
District of Columbia 
James F. McKeown
President
The Bar Association of the 
District of Columbia 
Kevin J. Barry
Past Co-Chair 
Military Law Committee
The Bar Association of the 
District of Columbia



Topics for Consideration

I. NEED FOR CONGRESSIONAL REVIEW

A. Do societal and systemic changes in the demographics and organization of the Armed Forces since enactment of the Uniform Code of Military Justice justify a complete congressional overhaul of the system? 

It would seem that these factors, along with the passage of time, would justify a complete congressional review of the system.. The changes to be made should be based on as much information, including empirical data, as is available.

B. Do any or all of the following indicate a need for revisiting the Code? - 

Yes. Each of the listed factors is a changed circumstance - in some cases a drastic change - from the time of the last thorough review of the system..

1. Greater number of women in uniform

As but one example, fraternization, once often a question of officers gambling with the troops, has taken on an entirely different connotation. The incidence of relationship offenses between members of the same unit has increased, and there is a concomitant need to regulate and police relationships amongst those members.

2. Volunteer forces

When the draft was in place, the entirety of the population was subject to service, and there were societal pressures to ensure the system was fair. In the years since the draft, a substantial number of Aindicia@ of a fair system have been changed or removed. (1)It would seem that the voluntary nature of the force has lowered the demand for due process. Also, the reduced size of the force means that fewer citizens are exposed to the rights and wrongs of the system and their voices are not heard. This flaw is compounded as the manner in which the system is changed has become less transparent.

In an age of an Aall volunteer@ military, the expectations of the member, their parents, and the public about just dealings should be explored. It would seem that more and more expect that the military system will be compatible with what is constitutionally required in a civilian criminal justice system. 

It is interesting to note that a high visibility incident such as that involving the USS GREENVILLE has attracted some attention to the fairness of military justice. It is interesting because not until a senior officer of some professional and personal stature is about to be affected, has there been any serious interest in recent years. Many of us have anecdotal evidence of senior officers who have suddenly become concerned about the fairness of the system, once they are about to become an object of it. Sadly, so long as the persons affected were young, junior, and enlisted, the media and others have found little reason to be concerned.(2)

Several ideas seem worthy of review. Should the United States Constitution and the Amendments thereto apply to the UCMJ and to courts-martial, unless Congress states an exception? Should any such exceptions be narrowly tailored? Secondly, to the extent that Congress exempts the UCMJ from a constitutional requirement, should Congress narrowly tailor the exception and give a detailed rationale? Or, alternatively, when the military establishment proposes to vary its practice from that in civil court should the military be called upon to justify such a deviation. BADC notes that in Canada, Europe, South Africa, India, New Zealand, and Australia, the courts and/or the national government have called upon the military to justify a departure from relevant Aconstitutional rules.@ Should our system meet similar standards?

3. Modern war doctrine

The challenge in this area will be in the application of international legal concepts surrounding war and peacekeeping operations.

4. Joint service commands

The changed nature of the business we do and the way we do it seemingly makes necessary some changes to the discipline system, to address concerns of joint commanders in having disciplinary control over all units and personnel assigned to them regardless of Service affiliation. UCMJ art. 17, 10 U. S. Code ' 817, appears to set forth a basis for joint commanders taking disciplinary action over personnel assigned to their command according to any Presidential regulation. Therefore it is important to study whether or not Article 17 should be changed, or whether the President should continue to set out a scheme suitable for joint forces in the Manual for Courts-Martial. The President already has the power to decide who in a joint command may exercise disciplinary authority. Either the Article or RCM 201 should be reviewed to ensure that a joint commander has the appropriate authority to act to ensure good order and discipline within the command. As currently set forth, the division of disciplinary authority is subject to Presidential regulation and to the political decisions inherent in giving a commander authority over members from another service. A close review of Rule for Courts-Martial 201(e) is in order to ensure that a joint commander has the appropriate authority to discipline those who serve under his command. We invite the Commission=s attention to the Manual of the Judge Advocate General of the Navy. Section 0108, provides that units embarked in a vessel become subordinate to the commanding officer of that vessel for disciplinary matters.(3) The commanding officer then can adjust this relationship with embarked commands through a ship=s instruction. Perhaps some study can be made of the experiences in Canada.(4)

5. Multinational commands

If concepts of due process seen in allied units are inconsistent or incompatible with those embraced in our Code, our failure to modernize could be problematic. It is difficult to address a situation where U.S. units are serving in a combined command (NATO), a UN mission, or a multi-national force (OPERATIONS DESERT SHIELD/DESERT STORM). We suspect that each commander of such an operation would want to have the prime and ultimate disciplinary authority over her units and personnel. That is the essence of military command. The sheer number and diversity of such operations justifies a serious review, but this is an area where systems may need to be tailored to the circumstances. Flexibility and discretion appear to be warranted.

6. Many service members are married and have dependent children

The young, single male service-member living in a barracks has been replaced by a young married service-member living in family housing or on the economy. Once this was a system which worked to rehabilitate members, and restore them to duty, but that is a much rarer occurrence today. Certain punishments for minor offenses may be less appropriate (such as loss of pay or restriction which directly affect these family members). An expansion of sentencing options seems warranted.

A further point on the impact of sentences, taking into account the educational, age, and marital make-up of the Services. More and more families feel the impact of reductions in rank, forfeitures of pay, and punitive discharges. The maximum suspension of pay for a civilian employee is 30 days. For a service-member, a reduction in paygrade may well be equated to the forfeiture of two to four years of a portion of her pay.(5) High Year Tenure requirements may cause discharge making the reduction tantamount to a separation from service earlier than the retirement eligibility date. This of course has a lasting effect on the military family. Due to the long term impact of such punishments, provision for automatic remission to the prior paygrade might be an appropriate consideration which would be an incentive to rehabilitation

The permanent stigma of a punitive discharge is well known. See United States v. Rush, 54 M.J. 313 (2000).(6) Those in private practice know of the stigma because of the constant flow of clients wanting to change or upgrade their discharge because of the lasting impact of the punitive discharge (or UOTHC). Considering the number of military offenders who are first offenders. Congress, or the President, might consider a statutory provision that automatically commutes a punitive discharge after five or ten years of proven good behavior.

7. Many military operations abroad without declaration of war

The Commission is aware that the Uniform Code was intended and designed to operate in war and in peace. The police action in Korea, military operations in Vietnam, DESERT SHIELD/STORM, and deployments in Europe, were not declared wars. However, the UCMJ and the Manual for Courts-Martial were the guiding documents for disciplinary and military justice action. The Commission should study very carefully how the criminal justice aspects of the Uniform Code operated in those environments. Certainly the Commission should be hesitant to recommend changes to the Uniform Code which withdraw protections for the accused absent clear documentation of the need. Not only should the need be documented, but care should be taken to determine whether the need is a profound problem or something merely inconvenient or transitory.

8. Civilians accompanying services abroad

Whether this problem has been solved by recent legislation is a question warranting this Commission=s review.(7) Congress has already shown an interest in the subject and has taken significant steps toward ensuring proper disposition of charges against civilians accompanying the services overseas.

9. International interest in human rights

A very important issue warranting Congress= attention. Further discussed below.

10. International changes in military codes of justice

Same as prior answer.

11. Impact of the International Criminal Court (ICC)

We encourage the Commission to consider that the U.S. military justice system should become, again, the model for military justice systems world-wide. However, we also wish to note that the basic fairness of any military justice system to the person accused is not necessarily relevant to the ICC. It is probable, but not assured, that the current system of military justice would satisfy the requirements of complementarity, as would military justice systems in many countries. The question for ICC jurisdiction is whether or not a system of justice exists that could (and would) be used to punish war crimes committed by military members. 

12. Evolving international human rights standards

Same as # 9 above.

13. Technological changes, e.g., as they apply to command and control issues

Practitioners do not appear to use technology to the degree it is used in other federal courts. The delays in processing records seem to increase year to year, even as technology advances. The availability of systems to allow electronic filings, virtually instantaneous creation of transcripts, etc., should be explored with a view to reducing the time required to conduct review of court-martial records, as well as other advantages. There does seem to be room to use technology such as video-conferencing to conduct some business of a court-martial, for example an arraignment. The use of new technologies can enhance the efficiency of military justice, improve access to justice, and perhaps reduce some costs. However, each of the Services has to commit to the up-to-date equipment and the trained personnel to operate and maintain the equipment. Electronic filing or motions and appellate briefs, video-conferencing to hold sessions of court (e.g. arraignment) are all areas to be explored. We would invite your attention to the discussion by the lower court and the Court of Appeals for the Armed Forces in United States v.Reynolds, 49 M.J. 260 (1998).

14. Information age changes, such as the access and shift to an Internet and electronic banking society

See above.

15. Increased long-term peacekeeping operations

This does not seem to be an issue warranting further consideration. The events in Korea and Vietnam were Along-term.@

16. Evolving standards of privacy/sexuality

The Congress should look at the need for a privacy regulation which prohibits the use at court-martial of medical information, FAP information, or other disclosures from a service-member. A full patient-physician privilege should be enacted which prohibits the use of such privileged information in any disciplinary proceeding. The commander has a legitimate interest in the health and welfare of her command. However, using information gained from mandated disclosures in a court-martial goes beyond the need to ensure the individual service-member is healthy or not a danger to others. Rather than hurt the commander=s interest in the welfare of her command, the knowledge that information can=t be used for disciplinary purposes may foster a more open and cooperative attitude from service-members. Protecting the health and welfare and prosecution are not synonymous. For the same reasons, some restriction on the medical exception to search and seizure and admissions rules should be considered.

17. Better educated force

C. Do the experiences in Vietnam, Southwest Asia, Bosnia, or other operations demonstrate a need for study of changes that would make the system work better in operational theaters in time of war?

The Code was designed to operate in wartime. Peacetime operation was appropriate to ensure trained personnel and processes were in place in wartime. It seems it would be inappropriate to reduce options or protections currently available to military personnel in any wartime environment absent some solid empirical evidence that it was necessary. This same Code, with many more protections, operated with apparent efficiency in Vietnam, and with substantially lessened protections, in Desert Storm. Any further reduction in the protections afforded accused members should be accompanied by clear evidence of necessity.

II. JURISDICTION (IN PERSONAM AND SUBJECT MATTER) 

Active duty military personnel have always been subject to a separate code of law and justice. At first, there were the Articles of War adopted from the British Articles of War -- which evolved into the Uniform Code of Military Justice. During the Vietnam War, however, the military justice system gained a poor reputation for justice. The 1969 Supreme Court decision in O'Callahan v. Parker, 395 U.S. 258 (1969), seemed to be an outgrowth of that reputation and military jurisdiction was limited. The limitation was further explained in Relford v. Commandant, 401 U.S. 355 (1971). The court established the "Relford Factors" to assist in showing a "service connection" to a crime, before the military could assume jurisdiction.(8) Subsequently, after additional changes to the UCMJ and the Manual for Courts-Martial, the Supreme Court overruled Relford and O'Callahan. In Solorio v. United States, 483 U.S. 435 (1987), the court held: "The jurisdiction of a court-martial depends solely on the accused's status as a member of the Armed Forces, and not on the 'service connection' of the offense charged." The BADC believes that the issue of military jurisdiction is one of the more important topics to be considered. There should be serious consideration given to limiting military jurisdiction to offenses that occur on base, or overseas, or in a military vessel/aircraft; and where the victim is either another service-member or military property or funds.

A. Should civilians ever be subject to court-martial jurisdiction?

In view of Congressional action in not adopting the recommendations for court-martial jurisdiction over certain civilians when it enacted legislation in 2000 (The Military Extraterritorial Jurisdiction Act), and the history of this subject, it seems inappropriate to consider extending court-martial jurisdiction to civilians. However, there is some doubt whether that statute has in fact solved the problem. See, Schmitt, supra note 7. In addition, we understand that the military now cannot deploy without civilian contractors, and that these civilians are now a necessary part of the military effort. If this is the case, perhaps some very limited court-martial jurisdiction over a special category of such Asine-qua-non@ civilian contractors would be a proper subject for review.

B. Should there be exclusive jurisdiction over military members for all crimes, state, federal and military?

It seems inappropriate to deprive civilian jurisdictions of the right to prosecute civilian type crimes which happen to be committed by service-members. In the absence of any data indicating a problem with the current opportunity for the local jurisdictions to prosecute those crimes they choose to, it is doubtful that an effort to deprive the states of jurisdiction for any crimes would be either favorably received or justified.

C. Should jurisdiction over military members in peacetime be restricted to service-connected offenses?

Initially it would seem that some limitation on jurisdiction is appropriate. In the case of United States v. Hutchinson, 49 M.J. 6 (1998), a service-member who committed civilian type crimes in South Carolina was prosecuted by the local jurisdiction, but was allowed to enter a pretrial diversion program in which the state promised to defer prosecution in exchange for appellant's satisfaction of numerous state-imposed conditions, such as paying restitution, entering the diversion program, performing community service, etc. Since he had not actually been tried by the state, the Air Force elected to try him under the military justice system. Because of his military conviction and incarceration, he was unable to complete all of the conditions of the state program, and a warrant was issued for his arrest upon release from military confinement. The CAAF found this to be a legal result, but it is one which is hard to understand from a policy or fairness perspective. Had the state actually tried him, the military would have not been able to try him under applicable instructions. Because the state chose to defer the actual trial and to treat him in a diversion program as an alternative to trial, the military was able to prosecute. Arguably as a matter of policy, such cases with no apparent military connection should be left to the local jurisdiction to handle as they see fit. Here instead of a rehabilitated person with no convictions, the member likely ends up the day with two convictions, one from each jurisdiction, a highly questionable result.

D. Should jurisdiction over peacetime death penalty cases be limited to service-connected offenses?

BADC notes with concern the fact that the military justice system is one in which capital cases are tried with defense counsel who are not required to meet the guidelines adopted by the ABA establishing minimum qualifications for counsel. When this fact is coupled with the questions raised in virtually every military capital case regarding the low experience level and minimal qualifications of the trial defense counsel, and the questions which have been repeatedly raised regarding the Arevolving door@ of appellate defense counsel during the course of lengthy appellate proceedings, a question of fundamental fairness is raised. Notwithstanding that this system has been upheld in various cases where these challenges have been raised, the question must be asked whether as a matter of conscience and policy such a system ought to be continued. The death penalty has come under increasing challenge in a variety of jurisdictions, this one included, for a number of concerns, including race. Whether the military justice system has sufficient integrity and reliability to overcome these issues is in doubt. These are issues which fully warrant implementing a moratorium until such time as it is clearly demonstrated that these ABA standards of fairness and justice are being met. These are also issues which should lead to recommendations to limit the occasions for charging or referring cases as capital. This Commission should consider such issues, keeping in mind the first case in this system in which a death warrant may be signed, and the scrutiny with which the system will be viewed at that time.

E. Should jurisdiction over retirees or those on the Temporary Disability Retired List (TDRL) be limited?

Whether the issue is viewed as one of jurisdiction, or as one of the application of certain of the Military Rules of Evidence, the questions raised by the recent case of United States v. Stevenson, 53 M.J. 257 (2000) warrant consideration by this Commission from the perspective of policy and future amendments to the UCMJ and/or the Manual for Courts-Martial.

F. Should Article 17 be revised in recognition of the fact that joint commands are now common?

See paragraph 4., Need for Congressional Review, above.

G. Do Articles 1 and 2 of the Uniform Code of Military Justice need to be reevaluated in light of increased command authority?

III. ORGANIZATION OF THE MILITARY JUSTICE SYSTEM 

A. CONVENING AUTHORITY

Should the role of the Convening Authority be changed in the following ways? -

As a general proposition, BADC has followed General Hodson=s recommendation that the Commander=s Role in the court-martial process should be reduced to two basic decisions: should a service-member be referred for criminal prosecution and should a convicted service-member be granted clemency? Contemporary commanders already make that first decision about rehabilitation and retention or consignment to the court-martial system. It appears today, that if the decision is for court-martial, the commander=s focus quickly shifts to timeliness and cost. Accordingly a transfer out of the command for prosecution may be the expedient route. The commander is then relieved of the management and financial burden of the offender=s presence in the unit. If a decision later is made not to prosecute, for evidentiary reasons perhaps, the person is reassigned to another unit, where hopefully the person can get a fresh start. If the person is prosecuted there will be little change in what is now current practice. Therefore, allowing the commander to decide to >save= or >consign,= and then be removed from the process, fits with the current reality and will likely not have a negative impact on good order and discipline.

1. Should court members be randomly selected by a jury commission or by a random computer selection process?

a. This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration. BADC has favorably endorsed this as one of General Hodson=s 1972 proposals.

Rationale: This is perhaps the most glaring deficiency of military justice. The perception, if not the reality, of unfairness is overwhelming when the same individual who sends a case to trial handpicks the jury. There is simply no valid reason, in this day and age of computers, why an adjutant can not have a list of 25 available members at any given time and, when a trial is convened, tell the next 12 or 15 that their time is up. If a member requests excusal, after referral, we can take a page from the civilian courts, and the request goes straight to the military judge. If the judge feels we need more members, he tells the trial counsel, who calls the adjutant who sends over more members. This would completely eliminate the perception that panels simply "give the old man what he wants."

b. In addition a number of other points should be considered. The commander=s selection of court-martial members is one of the most frequently criticized aspects of the military justice system. Rather than being chosen on a random basis, court-martial members are hand-picked by the same officer who has decided to send a particular case to a court-martial. A recent internal study completed by the Department of Defense into the methods of selecting court-martial members does not recommend change to the current practice. See DoD Joint Service Committee on Military Justice, Report on the Method of Selection of Members of the Armed Forces to Serve on Courts-Martial, 19 August 1999. The underlying themes of the study focus on the need for commanders to control the court-martial selection process because the military is different; junior personnel cannot be trusted to exercise judgement in a criminal case; and because the military mission must take priority over doing justice. The most frequently posited example is of the small deployed unit that must, under a different selection system, look outside the unit for court-martial members. The assumption is that the unit already has sufficient Abest qualified@ members available and that they will be made available. However, that may not in fact be the case. Take for example a ship in a battle group. That ship has a finite number of officers available to select members from. The commanding officer and executive officer are likely disqualified for various reasons. If the unit is mobile, a certain number of officers are required to operate the unit. Therefore, the court-martial members are likely the officers not performing mission critical functions or who are not on watch. Accordingly the junior officers are most likely to be the court-martial members.(9)

The European Court of Human Rights concluded that the British military justice system's similar practice of allowing the "convening officer" to hand-pick court-martial members violates the European Convention on Human Rights' requirement for "independent and impartial" criminal tribunals. Findlay v. United Kingdom, 1997 I Eur. Ct. H.R. 263. ("In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court-martial which decided Mr.Findlay's case were subordinate in rank to the convening officer and fell within his chain of command, Mr. Findlay's doubts about the tribunal's independence and impartiality could be objectively justified.").(10) Parliament has since adopted a substantial revision of the British court-martial system which gives a neutral "court administration officer" the power to select court-martial members. Armed Forces Act, 1996, ch.46 (Eng.). Minister of Defence Nicholas Soames explained: The main features of the changes are as follows: there will be changes in the formal part played in court martial proceedings by the military chain of command. Its functions, such as settling charges, responsibility for the prosecution and appointing court martial members, will remain in the services but generally be independent of the chain of command; . . . 268 PARL. DEB., H.C. (6th ser.) w344-45 (1995). Defence Minister Soames added, "The court martial system has served the services very well over the years. See also J. W. Rant, The British Court-Martial System: It Ain=t Broke, But It Needs Fixing, 152 MIL. L. REV.179 (1996) (commentary by the Judge Advocate General of the Armed Forces of the United Kingdom on the European Commission of Human Rights report on Findlay v. United Kingdom and the resulting changes in the British court-martial system).

The decisions invalidating the procedures for selecting British Army and Royal Navy court-martial members are particularly significant. John Adams, principal author of the 1775 Rules for the Regulation of the Navy of the United Colonies of North America and the 1776 Articles of War for the Continental Army, patterned both after their British counterparts. See 5 J. Cont. Cong. 670-71 n.2 (1776); 3 Papers of John Adams 147-56 (Robert J. Taylor ed., 1979). The Uniform Code of Military Justice thus shares a common ancestry with the British systems found insufficiently independent in Findlay and Lane. The Canadian system invalidated in Généreux shares that common ancestor as well. See Eugene R. Fidell, A World-Wide Perspective on Change in Military Justice, 48 A.F. L. Rev. 195, 206 (2000)(noting that common law democracies trace their military justice systems to the British Articles of War).

2. Should Congress create an independent Court-Martial Command and provide that decisions to prosecute be made by a legal officer serving as the equivalent of a "district attorney?"

In our introductory remarks to this part we noted the desire to remove the commander from the court-martial process once that referral decision is made. The creation of a Court-Martial Command, or similar entity, and also an independent Clerk of Court or Court Administrator, would enhance the actual and perceived fairness of the administration of justice. The Commission should consider the creation of a Prosecuting Authority similar to that now established in the United Kingdom or of a Court-Martial Command. The Authority or the Command would prosecute and act as the Adistrict attorney,@ once the commander is removed from the process. While the lack of experience is a criticism directed toward defense counsel, the Commission should not ignore the likelihood that similarly inexperienced counsel are often also assigned to prosecute cases. The prosecutor does have more resources available and certainly the command is more likely to be cooperative with the prosecutor; however, there are many aspects of the prosecution function which would benefit from the input and work of experienced counsel. The BADC recommends that the process in the United Kingdom and Canada be studied.

To relieve the commander of the administrative burdens attendant to a court-martial and to enhance the appearance of fairness, a Court Clerk or Court Administrator System should be considered. The Clerk would act in a similar fashion to the clerk of court in any federal district court. The Clerk=s office would manage all aspects of the docket, financial matters, and the forming of a jury pool. The Acare and feeding@ of the court-martial members would be the responsibility of the court clerk and bailiff. Removing the trial counsel=s involvement in the managing of the court-martial members during the course of a trial would enhance the appearance of fairness and relieve the trial counsel of a burden so that she may concentrate on the prosecution of the case. The current practice of regular contact between the trial counsel and members during the course of a trial would not be tolerated in a civilian court. For example, the simple matter of the trial counsel entering the deliberation room to brief the members in advance of trial gives the appearance of partiality.

3. Should this "district attorney" make pre-trial agreements?

This idea seems to have merit, although there should be some mechanism to get the input of the commander(s).

4. Should funding for courts-martial, including expenses for experts, witnesses, etc., be centralized in each service rather than treated as a budget item for convening authorities?

a. This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration. 

Rationale: All funding for witnesses, expert witnesses, investigators, forensic examinations, should be approved at the Secretarial level. There should be one fund for trial and one for defense. The funds could be delegated down to the Chief trial and Chief defense counsel of each service to administer as any other budget. This is good not just for the defense but for the entire system, including the government. Unit funds would not have to be expended therefore taking away the disincentive to prosecute appropriate cases and the opportunity for "greymail." Also, the defense would have greater and more equal access to funding in a confidential manner. It would also resolve the current dilemma facing the defense, when seeking witnesses, be they fact, character, or expert, to first go to the prosecutor and seek to obtain Apermission@ and funding to bring these witnesses, and must disclose in substantial detail the testimony anticipated from each, while the prosecutor has carte blanche to seek and call any witnesses desired without seeking any authorization form the defense. 


b. In addition a number of other points should be considered. The funding of courts-martials (or lack of funding) can have an adverse effect for both good order and discipline generally, and on the defense counsel, in a specific case. Accordingly we suggest that funding of courts-martials be a separate budget item that is approved at the Secretarial level. We also suggest that a separate prosecution and a separate defense fund be established. This is not to suggest that the service Secretary has to approve each request, but that she establishes a central funding mechanism that is effected through a Chief Prosecutor and Chief Defense Counsel.

Removing funding decisions from the commander and the unit involved may well enhance the ability of the unit to seek a court-martial in the appropriate case. With central funding the commander does not need to worry about the impact of a court-martial on his or her budget. Thus, cases that should go to court-martial will, all else being equal. The possibility of Agrey-mail@ being used against a command=s limited budget is also lessened.

Separate funding for defense counsel would enhance the actual and perceived access to justice and to resources necessary, for this system that seeks to command respect. Defense counsel in individual cases will be able to secure witnesses and resources in a privileged manner. Neither the commander nor the trial counsel need be involved in selecting which witnesses and resources a defense counsel may have, regardless of need. The current interest of the commander is in saving money. The time-worn argument that the commander must approve these expenditures, for financial expediency, should no longer exist. The issue of the witness being made available is a question to be resolved separate from the question of the availability of travel funds. Where issues are raised, the issues should be decided by the military judge, not by the trial counsel and convening authority.

5. Should the convening authority retain clemency powers, both with respect to findings and sentence, or should his powers be limited?

B. ARTICLE 32 INVESTIGATIONS

Should the Article 32 investigation be changed in the following ways? -

1. Should the requirement for an Article 32 investigation be repealed and a preliminary hearing substituted for it?

The investigation under UCMJ art. 32, 10 U.S. Code ' 832, should probably remain unchanged, in the absence of some compelling argument otherwise. Commentators and courts frequently compare the Article 32 investigation to the federal preliminary examination and the federal grand jury. Although the Article 32 investigation is not exactly equivalent to either federal proceeding, it has elements of both and serves as the member's best opportunity in guaranteeing that the accused will not be tried on baseless charges.(11)

Currently, the convening authority cannot refer a specification to a general court-martial if the staff judge advocate concludes in the pretrial advice that the specification is not warranted by the evidence indicated in the Article 32 report of investigation. UCMJ art. 34(a)(2).

Consideration should be made for putting the probable cause decision with the Investigating Officer. The Investigating Officer is the one who sees the evidence, sees the witnesses, and can assess the merits of the case. Further, consideration should be given to mandating that either a military judge or military magistrate conduct the Article 32 investigation.

The Article 32 has had an unusual beneficial effect for the accused, which if care is not exercised will be lost to the accused through efforts of convening authorities and trial counsel to restrict the discovery process. That benefit has been engrafted primarily through court decisions. Whether or not the Article 32 investigation was meant to be a defense discovery procedure is a subject of debate. There is some support in the legislative history for both sides of the issue and in the case law.(12) Compare testimony, Mr. Larkin before the House Committee on Armed Services, Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 997 (1949) with the absence of language in the statute about defense discovery. Appellate courts have recognized a legitimate defense discovery purpose. And so have the drafters of the Manual for Courts-Martial. However, the BADC is concerned that overly aggressive prosecutors have and will make efforts to restrict the discovery function. Therefore, BADC believes the appropriate course now is to consider taking steps to make defense discovery at an Article 32 investigation a matter of right.(13)

2. Should all Article 32 proceedings be recorded and a partial or complete verbatim transcript be prepared at the request of either the government or the defense?

The preservation of Article 32 testimony is an important consideration to both sides. An accused should be entitled to some method of preserving witness testimony in order to effectively prepare and present a case at trial. We are aware of cases where the accused at an Article 32 has been denied even the option of making a tape recording of the testimony received. This seems an abuse, and the Commission should consider a remedy.

3. If an Article 32 investigating officer returns a finding of "no probable cause," should that finding bar subsequent prosecution?

It seems this should be the rule, unless the prosecutor later brings forward additional evidence to establish probable cause. Compare Rule 5.1(b), Fed. R. Crim. Pro. And see UCMJ art. 36, 10 U. S. Code ' 836.

4. What avenue of appeal should be available to the government in the event of a finding of "no probable cause?"

There are at least two options that could be reviewed: the prosecution should be allowed to present additional evidence at a reopened Article 32, or the prosecutor could be allowed to apply to a military judge for a review de novo of the Article 32 record. The second option is not found in the federal courts because it is a federal magistrate judge, a judicial officer, who is conducting the hearing. Likewise, in the Commonwealth of Virginia courts a General District Court judge conducts the probable cause hearing and then the case is set for trial in the Circuit Court (absent a guilty plea under certain circumstances).
We have addressed elsewhere the recommendation that there should be a military magistrate judge who would sit and act on various pretrial issues. Amongst those judicial duties would include presiding at an Article 32 investigation. The Article 32 is already considered a judicial proceeding, therefore having a military magistrate judge preside seems consistent with the Article 32's place in the pretrial process. Cf. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App. 1996) (pretrial investigation of charges under Article 32, UCMJ, although not a court-martial, is a judicial proceeding)(citations omitted).

C. JURISDICTION OF COURTS-MARTIAL 

1. Should courts-martial be standing courts, along the lines of the Federal District Courts, having continuing jurisdiction over service members within a "court-martial district"?

This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration.

Rationale. Until court-martial charges are REFERRED, there is no military judge who has cognizance of the case. All pretrial decisions are made by the convening authority (frequently with little or no understanding of military justice), on the advice of the staff judge advocate. Serious decisions in complex cases are made early, without the ability for the defense to provide meaningful, effective input. In such cases it is often difficult to recover once a judge is available.

The convening authority is the official who exercises prosecutorial discretion, and the SJA is the principal legal advisor (and thus effectively the chief prosecutor). It is contrary to due process for the prosecutor to be able to control a case with no defense recourse to any official but the convening authority, who exercises prosecutorial discretion on the advice of that same prosecutor. Attempts to obtain adequate relief through extraordinary writs have been tried and are completely ineffectual. There is need for a permanently available trial judiciary to which ongoing issues can be brought, to the same degree that federal district courts are now available to address those issues in federal court cases. See e.g., United States v. King, 2000 CAAF Lexis 482.

Alterative approach: Instead of REFERRAL being the operative act to involve the judiciary - make PREFERRAL the operative act for a military judge to take cognizance. There will have to be some corresponding changes to the MCM to change the rules now highly in the governments favor. If either side wants something (and it usually will be the defense) they go to the military judge. Not a complete fix, but better than what we have.

2. Should military judges have the power to rule on all requests for release from pre-trial confinement, search warrants, requests for witnesses, or expert witnesses?

The BADC has elsewhere recommended that consideration be given to the appointment of a standing judiciary. If there was a standing judiciary, a military judge or a military magistrate judge could reasonably be tasked with such pretrial issues. The federal magistrate judge program, authority, and responsibilities should be studied in this regard. Again, in the Commonwealth of Virginia, a General District Court judge performs these tasks.

3. Should military judges oversee the jury commission in the selection of court members rather than leaving administration of the process to the staff judge advocate and convening authority?

An independent Clerk of Court or Court Administrator should oversee the selection and assembly of the members.

4. Should an enlisted military accused continue to have the right to be tried by a court composed of at least one-third enlisted members from a unit other than his own under Article 25(c), or is the right to be tried by a military judge alone sufficient to protect the enlisted accused's interests?

This is an important right that should be continued.

5. Should the minimum size of courts-martial be increased, e.g., to six for special courts-martial and to nine for general courts-martial?

A 12 person jury is not required in State courts, but a jury of 12 is required in federal court.(14) In Ballew v. Georgia, 435 U.S. 223 (1978) the Supreme Court has declared that a jury of five or less violates the Sixth and Fourteenth Amendments.(15) Because this is a constitutionally guaranteed right, there should be an affirmative showing on the part of the Department of Defense that they cannot provide juries of six or more. Not only should there be consideration of a jury of at least six members, but the requirement for a unanimous verdict on findings should be closely examined. At present a service-member can be convicted on the vote of two out of three members at a special court-martial, and on a vote of four out of five at a general court-martial. While there might be some argument in favor of a lower jury size in a combat zone, the voting ratio cannot be justified on any basis.(16) (We do note that the Supreme Court has approved a non-unanimous vote where the vote required seven of nine.)(17) An additional nuance of this question is that of challenges and their effect on the size of the panel. 

6. Should courts-martial be required to have 12 members for capital cases?

This is worthy of serious study. Note that the military is the only jurisdiction that permits imposition of the death penalty with a jury of less than 12. Otherwise we defer to and incorporate the comments of Dwight H. Sullivan, representing the American Civil Liberties Union, on all aspects of military capital cases, except as to the need for abolition. We have stated our opinion elsewhere in regard to a moratorium on the military death penalty.

D. MILITARY JUDGES, TRIAL AND DEFENSE COUNSEL 

1. How and by whom should military judges be selected?

This is one of the most significant issues to be addressed that has clear due process implications. We recommend starting with the Lederer-Hundley article on judicial independence(18) and using that as the benchmark to evaluate various alternative proposals. We also note that the U. S. Department of State, through the U.S. Information Agency, advocates judicial independence and tenure as a cornerstone of a fair judiciary in a democracy. Stephen G. Breyer, Rule of Law: Judicial Independence in the U.S. (This document is published on the Department of State, United States Information Agency website. The website and the Agency is an, AAuthoritative resource for foreign audiences seeking information about American society, political processes, official U.S. policies and culture.)(19) Justice Breyer sets out the basic principles of judicial independence in the United States. A primary issue is tenure.(20) As Judge Cox has recently said, "I look at tenure and judicial independence like the Wizard in the Land of Oz. If you want to give the lion courage, give him a medal, and if you want to give the straw man brains, give him a degree. If you want to give judges independence, give them tenure.@ ARTICLE Two Senior Judges Look Back and Look Ahead: An Interview with Senior Judge Robinson O. Everett and Senior Judge Walter T. Cox, III, 165 Mil. L. Rev. 42 (September, 2000). Justice Scalia addressed the historical anomaly of this system not requiring tenure in his concurrence in Weiss.(21)

2. Should civilians be permitted to serve as military judges?

This idea seems worthy of study. There seems no reason why a civilian should not be selected to serve as a military judge. And there seems no reason why they could not deploy in the same manner as any other civilian who is required to accompany the force overseas and into combat situations. Such service could be open to retired officers as well as others. UCMJ art. 26, 10 U. S. Code ' 826, would need amending to parallel UCMJ art. 66, 10 U. S. Code ' 866. Chief Judge Baum is an excellent example of a Acivilian@ performing as a military appellate judge. Military appellate judges may be civilians, including retired officers. UCMJ art. 66, 10 U. S. Code ' 866.

3. Should military judges serve for a fixed term and be subject to a separate pay and allowance scale not fixed by military rank or grade?

There seems to be a strong argument for such a structure. See Lederer/Hundley. On the specific issue of tenure, the Services have argued against traditional forms of judicial tenure citing the need for flexibility in military assignments. That argument seems to be accepted without question. This is one of the areas where it would be helpful to have some empirical evidence. A series of questions regarding recent operations might be quite revealing on the issue.(22)

4. How should military judges be disciplined or removed from office?

The Court of Appeals for the Armed Forces has suggested that a judicial commission is the proper vehicle.(23) Currently, the matter probably rests with the appointing officer, the Judge Advocate General. Having judicial officers answer to executive officials is extremely problematic.

5. Should civilians be allowed to serve as trial counsel (e.g., Assistant United States Attorneys, Department of Justice attorneys, etc.)?

For the same reasons that consideration should be given to allowing civilians to be able to sit as trial or appellate judges, the issue of civilians being able to serve as trial or defense counsel should be examined. This might be accomplished in ways similar to that in any number of jurisdictions which have panel attorneys or attorneys on a roster of those willing to take court appointed cases. Certainly there would need to be a form of screening for those permitted on the roster. Such screening could be accomplished through the application process. Civilians so employed might be employed on contract for a particular service or by the case at the federal EAJA rate. In Australia, military reservists are called to active duty to represent the accused in a court-martial. This is done to ensure that the accused has competent and experienced counsel to represent him/her. Some method of access to experienced counsel would go a long way to addressing concerns about the experience level of counsel in serious cases.

6. Should there be minimum standards for defense counsel in capital cases?

BADC endorses the ABA Recommendation calling for a moratorium on capital punishment until certain conditions are met. Minimum standards for counsel is one of those conditions. See also the comments of Dwight H. Sullivan for the American Civil Liberties Union.

7. Should the practice of permitting supervisors to rate military trial judges be terminated?

There should be consideration of a judicial ethics panel that would regulate the judicial conduct of military trial and appellate judges. The concept of rating military judges against each other does not seem to favor judicial independence.

8. Should military judges have explicit power to hold counsel in contempt for abusing process during any phase of military proceedings?

To the same extent permitted in a federal district court. However, great care should be taken to ensure such a power would be applied equally to witnesses, jurors, and both counsel. Compare Rule 42, Fed. R. Crim. Pro.

9. Should there be a separate trial defense service required by statute for each service?

There seems no good reason for this. A thorough review of the way in which defense counsel services are provided, in particular the independence of such counsel should be studied. The concept of a joint defense organization appears to have merit, especially if this could result in the more efficient and balanced provision of resources to the defense. Certainly the federal public defender system could be looked to as a model. 

IV. CRIMES AND OFFENSES 

A. Should Articles 133 and 134 be repealed and new, particularized punitive articles enacted to address General Article offenses that have previously been acknowledged by case law or enumerated by the President in the Manual for Courts-Martial?

The Articles in their present form do present a viable alternative when there is no specific article in the code already. However, it does appear that many Article 134 provisions could be assimilated into the various codal provisions. This would be especially helpful if there were a sexual offenses statute similar to the Model Penal Code. As to Article 133 there is some objection to it, not so much as to its existence, but that it seems to be used as a means of piling up an additional charge(s) when perfectly valid charges are available and have been charged. An example is the practice of charging adultery twice.

B. Should there be a distinction in degree and maximum punishment for the offenses of being raped by an acquaintance and being raped by a stranger?

There does not appear to be any compelling reason to make such a distinction. Such distinctions seem better left to the fact-finder at the time of sentencing. 

C. Should Congress enact a modern criminal sexual misconduct statute similar to the Model Penal Code and repeal the current statutes on rape and sodomy?

See answers above.

D. Should Congress enact a specific punitive article to proscribe relationships between and among officers and enlisted personnel, e.g., fraternization, undue familiarity, adultery? 

This issue is worthy of study to ensure that there is uniformity amongst the Services.

E. Should Congress repeal Article 88, which prohibits officers from uttering contemptuous words regarding certain public officials, or at least limit it to active-duty personnel?

The purpose for the Article appears to be the prevention of calls for disorder and disobedience and to preserve the fundamental principle of civilian control over the military. A study should examine whether or not the Article should be limited to those actually serving on active duty. For those not serving on active duty, either retired or reserve, the Article might not need to be applicable, except for situations where they identify themselves as a military officer - Awrap themselves in their rank@ or military status.

F. Should Congress modify Article 46 to authorize contempt procedures for civilian and military witnesses and participants in courts-martial?

Compare Rule 49, Fed. R. Crim. Pro.

G. Should offenses based upon a simple negligence element be deleted from the Code?

Perhaps the consideration here should be to removing simple negligence offenses that are unrelated to military duties. It might well be that a different standard or degree of guilt is proper in regard to a dereliction charge, or to a charge dealing with an orders violation, or to a charge dealing with some military duty. However, to the extent that the charge relates to a typical common law offense, consideration should be given to removing simple negligence as a standard of guilt.

H. Should Congress enact a punitive article prohibiting child neglect and abuse?

The question here relates not to the ability to prosecute a case of child neglect and/or abuse, but to the question of jurisdiction. The BADC has suggested, earlier in this submission, that military jurisdiction might appropriately be limited. To the extent that it is necessary to have a punitive article for offenses against children, occurring on base, or overseas, then such a provision is appropriate. Otherwise, offenses against children might best continue to be left to the local authorities where the offense does not occur on military property.

I. Should Article 124, Dueling, be repealed?

The BADC notes that since 1840, dueling as method of solving personal differences between officers has declined.(24) Accordingly, repeal of UCMJ art. 114, 10 U.S. Code ' 914, seems timely.

J. Should the definition of grievous bodily harm under Article 128 be revised? 

K. Should consensual sodomy be decriminalized?

Private acts between consenting adults, that do not otherwise have a direct impact on good order and discipline should likely not be subject to criminal prosecution. 

L. Should adultery be eliminated as an offense, or in the alternative, should it be codified so that it is only a crime under circumstances that directly affect "good order and discipline"?

Adultery should not be proscribed except to the extent that there is a direct provable effect on good order and discipline. The cases of former Air Force lieutenant Kelly Flinn and of, MGen Hale seem appropriate for proscription because of the direct connection to good order and discipline. However, cases like that of Gen. Ralston might not be proscribed.

V. SENTENCING AND PUNISHMENTS 

More flexible ways to sentence a person without lasting stigma must be studied. In United States v. Rush, 55 M. J. 313 (2000), the Court of Appeals for the Armed Forces reminded everyone about the lasting stigma of certain punishments. In particular, ways should be considered to reduce the long term financial impact of sentences that include reductions in grade or reductions in pay. This recommendation should be considered regardless of the marital/family status of an accused, although as a practical matter there is likely a more adverse effect on families. But, it should be considered that in this day and age many service-members have established significant financial obligations -- purchase of a home, car, etc. Such ramifications should be considered and studied. Thus, the long-term impact of a reduction should be considered B long-term loss of pay, stagnation in paygrade leading to high-year-tenure issues, or inability to compete for additional promotions, or the inability to regain the previous rank. Consideration should be given to the automatic commutation or remission of punitive discharges after passage of a defined number of years in the civilian community. For example, it might be appropriate to remit a bad conduct discharge after the applicant affirmatively shows five or ten years of good behavior. In addition, acts of good citizenship might warrant earlier remission. The person need not be issued an honorable discharge (only an under honorable conditions discharge) and could be prohibited from receiving certain benefits.

A. Should capital punishment be eliminated for peacetime offenses?

While the BADC takes no position on the abolition of the military death penalty, the issue seems worthy of study. We would draw your attention to the BADC support of the ABA moratorium on the death penalty for the reasons stated by the ABA.

B. Should the accused have the option of being tried by a court-martial of members on the guilt or innocence but sentenced by a military judge in the event of a conviction?

The various procedural methods of reaching a sentence are worthy of study. It does seem that judge sentencing following members findings of guilt ought to be considered as an option. The UCMJ was intended to operate in war. The UCMJ existed and survived Korea, Vietnam, Desert Shield/Storm, and lesser deployments. There should be great concern about any change which actually or by perception lessens the rights and protections available to a service-member at court-martial.

C. Should member sentencing be abolished?

This would eliminate an option now available, and should not be considered except upon clear evidence of manifest necessity. See above.

D. Should sentencing guidelines be adopted in order to eliminate the need for a contested sentencing proceeding?

See C. above.

E. Should pre-trial agreements be binding on both parties thus eliminating the need for a sentencing hearing?

See C. above.

F. Should sentencing in time of war always be by judge alone, except in capital cases?

See C. above.

G. Should the requirement to produce witnesses for sentencing proceedings in time of war be abolished?

See C. above.

H. Should new sentencing considerations be authorized, such as community service, suspension of eligibility for promotion or pay increases, required counseling for violent or sex offenders, or other measures that would return a convicted accused to duty rather than incarceration, discharge, or dismissal from service?

The life-long damning and damaging effects of military punishments should be reviewed and more flexible punishment alternatives developed.

I. Should a military judge have the right to suspend a sentence and adjudge a probationary sentence?

BADC supports an independent judiciary with full judicial powers. This idea is worthy of serious consideration. In addition, it appears sensible to consider a bar to administrative discharge processing after a case has been disposed of at court-martial. A service-member, not infrequently, is able to persuade the trier of fact that he or she should not be punitively discharged as a result of the trial. At that point, again not infrequently, the command will then process that person for an administrative discharge Under Other Than Honorable Conditions. Some consideration ought to be given to restricting such a practice. There may well be circumstances which justify separating a person who has been convicted, but not punitively discharged. However, as a general rule there ought to be a demonstrated need to do this, and it should be limited to separation under honorable conditions. The prosecution already has a substantial opportunity to introduce all of the aggravating evidence available both as to the offense and as to the accused=s character. Therefore, it seems appropriate under that circumstance to accept the judgement of the sentencing authority. The members are the best qualified "board of officers," and accordingly are able to make fine judgements about rehabilitative potential, amongst other judgements. 

J. Should the military judge or his successor in office retain jurisdiction over the accused until the sentence has been served?

Such a change seems appropriate. As part of an integrated post-trial process the military judge should retain jurisdiction over the accused and the case until it is docketed at the Court of Criminal Appeals for cases to be considered under UCMJ art. 66, 10 U. S. Code ' 866. Further, power of a trial judge (and of the Courts of Criminal Appeal) to issue orders under the All Writs power should be spelled out explicitly in a statute. 

K. Should a sentence ordering separation from the service without loss of either retirement or other service-connected benefits be authorized?

This is worthy of serious study. In addition the power to award or direct such a separation might also be given to the military judge, the military appellate judges, the Service Clemency & Parole Boards, and the Service Discharge Review Boards.

L. Should the Code be reevaluated in light of the fact that most accused members have families, and thus existing punishments may not be the most effective in meeting discipline goals?

The Code and Manual should be reevaluated. See above.

M. Should enhanced punishments for certain offenses committed in time of war (e.g., desertion) be reevaluated in recognition of the frequent deployment of forces to hostile areas not technically qualifying as war?

The current charging and sentencing options available already contemplate the ability of the prosecution to introduce evidence in aggravation. Therefore missing ship=s movement for a training exercise might be treated differently than missing a deployment to conduct a NEO operation.

N. Should a provision to allow consideration for expungement of a conviction after a specified number of years be enacted?

Some consideration should be given to a combination of discretionary and mandatory expungement after a period of time. The focus here should be toward lessening the long term impact and stigma of the punitive discharge, rather than the fact of conviction itself.

O. Would adoption of any sentencing guidelines be fruitless in light of the reality that most accuseds do not become repeat offenders due to separation proceedings?

P. Should sentencing be made more equitable by permitting reduction in rank or loss of numbers for all officers?

VI. EVIDENCE 

A. Should evidence of good military character be barred at the findings phase of courts-martial?

The rules of evidence permit certain bad acts or bad military character to be used as evidence to convict someone at court-martial. There seems no justification for prohibiting a service-member from showing good military character or law-abidingness.

B. Should exculpatory defense polygraph evidence be allowed?

There should be a reconsideration of the absolute ban on polygraph evidence. The rule in question was effected under a rulemaking process which the ABA has challenged, and which did not allow for serious or public consideration of options.(25) 

C. Should pleas without admissions of guilt be permitted at courts-martial as they are in most jurisdictions?

Such a plea is appropriate in other systems, and would be in this also. Compare Rule 11(b)(c), Fed. R. Crim. Pro. See also UCMJ art. 36, 10 U. S. Code ' 836.

D. Should conscientious objection be a permissible affirmative defense?

It is worthy of study, as for example where the accused shows that a request for CO status was properly and timely submitted and that the government was dilatory in acting on the request or acted upon it in bad faith.

VII. TRIAL PROCESS 

A. Should the military judge, rather than trial counsel, administer the oath to witnesses?

We are aware of no strong arguments in favor of such a change. The BADC supports a complete review of the interactions that the trial counsel has with the members of a court-martial. As noted elsewhere, the BADC believes that the trial counsel should be relieved of all duties in connection with the calling, selection, management, and administration of members. Such functions should be transferred to the Clerk of Court or Court Administrator as is done in all civilian courts. The BADC believes that only in the military is it not considered professional misconduct for the prosecutor to be involved with the members in the current fashion. The BADC believes that a prosecutor in civilian court who tried to have the same or similar access to a jury would be severely critiqued by the judge and might well be subject to professional discipline action. The trial counsel involvement with the members should be limited to the interactions had in open court on the record.

B. Should voir dire of court members by counsel be a matter of right?

There should be serious study of this matter. Practice in the federal and state courts is not consistent. However, the accused has the right to a trial by members who it is believed will be fair and impartial. A military members trial should be constitutionally sound. There is a difference of opinion within the civilian bars about how effective, for Sixth Amendment purposes, a counsel can be who cannot/does not personally voir dire prospective jurors. In addition, it is a matter of debate whether or not denying counsel voir dire deprives the accused of a jury fully consistent and qualified within the U.S. Constitution. In Virginia for example, counsel and the Court may voir dire.(26)

C. Should more peremptory challenges be authorized to an accused and the government?

Consideration should be given to allowing the defense more peremptory challenges than they have now, and possibly more than the prosecution. As has been noted elsewhere, under the current system, the prosecution already has an unlimited number of challenges by virtue of the court-martial member selection process. In federal district court, where the prosecutor had no involvement, there is a ratio of six prosecution to ten defense peremptory challenges (20 each in a death penalty case). See Rule 24(b), Fed. R. Crim. Pro. And see UCMJ art. 36, 10 U. S. Code ' 836. One other important difference is that an excused potential juror is replaced with another potential juror until there are twelve jurors (and occasionally alternates).

D. Should Racial Justice Act instructions be required in capital courts-martial?

This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration.

Rationale: Of all the death penalty jurisdictions in the country, the military has the highest percentages of minorities on death row. The military justice system lacks a vital protection to minimize the risk that race will play a factor in determining who is sentenced to death. In civilian capital cases, Congress has required that the judge Ainstruct the jury that in its consideration of whether the sentence of death is justified it shall not consider the race . . . of the defendant or the victim.@ 21 U.S.C. ' 848(o) (1994). Congress further required the judge to instruct the jury that it may not Arecommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race . . . of the defendant, or the victim, may be.@ Id. Finally, Congress required each juror to sign a certificate stating that he or she did not consider prohibited factors, including race, and that his or her sentencing decision would have been the same regardless of the defendant=s and victim=s race. Id. See also 18 U.S.C. ' 3593(f) (1994). Together, these are called the Racial Justice Act instructions. No statute or Rule for Courts-Martial requires such instructions in capital courts-martial. The military justice system should go to any length to ensure that racial discrimination does not affect cases= outcomes. The instructions that Congress requires in Article III capital cases are no less appropriate, or necessary, in the military justice system. See Uniform Code of Military Justice art. 36, 10 U.S.C. ' 836 (1994). 

E. Should a jury of 12 be required in order to sentence an accused to death?

This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration.

Rationale: Every death penalty jurisdiction in the country with the exception of the military justice system provides for 12-member juries in capital cases. Even though a five-member jury cannot try any case that could result in confinement for more than six months, in the military a court-martial panel with as few as five members can impose a death sentence. Military capital cases are sufficiently rare that requiring 12-member panels would not prove burdensome to the services. Accordingly, no military necessity justifies departure from the universal practice of 12-member panels. Additionally, the lack of a fixed number of members threatens the fairness of capital courts-martial. Convening authorities have no guidance concerning how many members to detail to capital cases, thus resulting in enormous disparity in the number of members in such cases. The size of the court-martial panel is an arbitrary factor that could well influence who is sentenced to death and who is not. Additionally, because death sentences must be unanimous, the prosecution has an incentive to challenge members from the panel while the defense has an incentive to try to keep all of the members on the panel. See United States v. Simoy, 46 M.J. 592, 625-27 (A.F. Ct. Crim. App. 1996) (Morgan, J., concurring), rev=d on other grounds, 50 M.J. 1 (1998). With just one side engaging in vigorous voir dire and challenges, a court-martial panel skewed toward the prosecution is the almost inevitable result of the current system. Thus, the size of capital court-martial panels must be fixed. In keeping with Congress=s general preference for military justice procedures that mirror those used in Article III Courts, see Uniform Code of Military Justice art. 36, 10 U.S.C. ' 836 (1994), the capital court-martial panel size should be fixed at twelve.

VIII. APPEALS 

A. Should the government have the right to appeal to the United States Court of Appeals for the Armed Forces and should the power of the Judge Advocate General to certify cases be repealed?

This proposal has merit, and it is now appropriate to review the need for or appropriateness of the certification power. Caution should be exercised to prohibit review of a decision of the Court of Criminal Appeals when that decision is based on an insufficiency of the evidence or which results in a reduction of the sentence for reasons of disparity or inappropriate severity.(27)

B. Should the Courts of Criminal Appeals be eliminated or their function reduced to reviewing the record for sentence appropriateness?

The Courts of Criminal Appeals have their place in the hierarchy of military appeals. An intermediate appellate court is appropriate especially where they have the actual attributes of an independent judiciary. However, the stature and independence of these courts should be enhanced as we have recommended elsewhere.

C. By whom should military Courts of Criminal Appeals judges be selected, and should their service be for a fixed term of office?

BADC supports appointing all military judges at the Presidential level, as proposed by General Hodson. One would assume that the President would have the recommendations of a panel; and that the military judge should have tenure and other indicia of independence, as for example was proposed by Prof. Lederer and LT Hundley. The panel should might appropriately consist of judges, at least one law professor, and at least one judge of the Court of Appeals for the Armed Forces. 

D. Should Senior Judges of the United States Court of Appeals for the Armed Forces and retired military judges be allowed to serve on the Courts of Criminal Appeals without being recalled to active duty?

The example of Chief Judge Baum of the U.S. Coast Guard Court of Criminal Appeals shows both the advisability and efficacy of proposal that a retired military judge (civilian) so serve. Presumably a senior judge on CAAF could also serve, but this seems a more problematic suggestion.

E. Should an accused have to file a Notice of Appeal in order to have his case considered by a Court of Criminal Appeals?

There should be consideration for such a proposal. However, if that is to be the case, some consideration should be made to the experience, knowledge, training, and expertise of today=s trial defense counsel, and to making mandatory the filing of a brief pursuant to Article 38(c), UCMJ. If an appellant is required to Apetition@ for an appeal, such requirement might be limited to guilty plea cases and only with the guidance of an appellate defense counsel. We assume, however, that filing a notice of appeal would not allow for a discretionary review, but would invoke the current mandatory appellate review provision.

F. Should there be threshold requirements before an appeal is automatic to the Court of Criminal Appeals, such as a sentence of five or more years' confinement?

The current threshold appears appropriate.

G. Should there be an automatic right of appeal to the Court of Criminal Appeals in a guilty plea case, or should an accused be required to file a Notice of Intent to Appeal?

Some consideration should be given to this proposal. However, such a procedure should require that the service-member have access to the advice and assistance of an appellate defense counsel in giving such a notice. The concern should be the ability or inability of the trial defense counsel from recognizing appellate issues. Further, what impact if any, would such a procedure have on the requirements set out in United States v. Grostefon, 12 M.J. 431 (1982).

H. Should a decision of a Court of Criminal Appeals ever be rendered by fewer than three judges?

This question goes to the very heart of compliance with UCMJ art. 66, 10 U. S. Code ' 866.

I. Should every judge who sits on an appeal at a Court of Criminal Appeals certify that he or she has read the entire record of trial at the time a decision is rendered?

The unique power of the Courts of Criminal Appeal seems to require that each judge who sits in a case must personally affirm that the sentence is appropriate, and in a not guilty case, that the evidence was legally sufficient.(28) And as we know, if they do not agree, then they have the power to substitute their judgement.(29) We fail to see how each judge voting on a case can abide by such a standard if they have not personally read the record in its entirety. The recent litigation in United States v. Lee, 54 M.J. 285 (2000), addressed the issue of a quorum of a Court of Criminal Appeals panel. A panel of three judges is necessary for a proper review. The dissonance between the mandate of UCMJ art. 66, 10 U. S. Code ' 866, and the quorum rule was evident. If nothing else, the Congress should examine the need to overrule the decision in United States v. Petroff-Tachomakoff, 19 C.M.R. 120 (C.M.A. 1955) 

J. Should confinement be deferred if an appellate issue could result in an acquittal or if a new trial could be ordered, as is allowed by the bail process in many jurisdictions?

Release from confinement pending appeal should be studied, and seemingly should be permitted if it appears a new trial may be ordered, or the findings of guilty vacated on appeal. In addition, consideration should be given to a required release from confinement should the record of trial has not been prepared and forwarded to the military judge for authentication within a specified time. If, as proposed a military judge retains jurisdiction of a case until docketing at the Court of Criminal Appeals, then the military judge should be permitted to hold a post-trial 39(a) session to direct release of a confinee. Alternatively, there might be some provision, similar to Allen credit for post-trial delay. As noted elsewhere, there is currently no incentive for speedy submission of the record of trial. This is particularly distressing because the transcription is under the direction and control of the prosecutor. Anecdotally, we note that the U.S. Air Force does not seem to have difficulty in the timely forwarding of records of trial. Additionally, each record is accompanied by a detailed chronology (by the hour) of the transcription process.

K. Should the United States Court of Appeals for the Armed Forces dismiss a petition if no issues are assigned for review?

The issue is worthy of consideration. There is a need to study the long-standing debate about specified issues. See, Eugene R. Fidell and Linda Greenhouse, A Roving Commission: Specified Issues And The Function of The United States Court of Military Appeals,122 Mil. L. Rev. 117 (Fall, 1988); Robinson O. Everett, Specified Issues in The United States Court of Military Appeals: A Rationale, 123 Mil. L. Rev. 1 (Winter, 1989). Also, to what extent then would a AAnders@ brief be required from trial or appellate counsel? 


L. Should the United States Court of Appeals for the Armed Forces be required to hear any appeal from a case in which the sentence includes five or more years' confinement?

The present requirement of one year or a punitive discharge seems sufficient for the low end of their jurisdiction. The discretionary nature of their jurisdiction is occasionally troubling, and a requirement to hear an appeal in any case in which a "notice of appeal" is filed is worth considering.

M. Should there be a right to oral argument before the appellate courts upon request by the accused or the government?

It would seem that it should be a rare case in which an appellant would be denied a requested oral argument.

N. Should the United States Court of Appeals for the Armed Forces be permitted to sit in panels of three, like other federal courts of appeals?

We understand one of the purposes of expanding the Court to five judges was to encourage the settlement of thorny legal questions. Would sitting in panels enhance or detract from that goal?

O. Should membership on the Courts of Criminal Appeals be limited to retired judge advocates who are voluntarily recalled to active duty for a term of years?

The idea of retired judge advocates recalled for a set period should be considered along with any recommendation on how military judges are selected and what tenure, if any, they should have. Certainly the appointment of Magistrate Judges in the federal district courts could be studied. However, the question should not be restricted to appellate judges but should also include trial judges.

P. Should the practice of supervisors rating military appellate judges be abolished?

This is worthy of serious study . . . for the same reasons stated as to the rating of trial judges. See above.

IX. ARTICLE 15 PUNISHMENT 

A. Should Article 15, Nonjudicial Punishment, be repealed or amended? 

This was an item which BADC submitted as a potential topic, with the following two discussions. BADC now submits these for the Record and for the Commission=s consideration.

a. Amend Article 15 so that when a service member declines to accept an action under UCMJ art. 15, and a decision is made to refer charges to trial by Court-Martial, the charge for which the accused refused Article 15, any offense not known to the command at the time of offering Article 15 (or which could not have been known to the command at the time with reasonable diligence), and any subsequent misconduct, are the only charges for which he or she can be tried. This would help to eliminate the practice, routine in some commands, of allowing trial counsel to charge the member with matters that had previously been dealt with administratively as a means to load up the charge sheet. It would not be unusual for a person to be acquitted at court-martial on the charge initially considered for Article 15 punishment, but be convicted on something previously dealt with administratively. The purpose on such a rule would be to ensure the accused is not punished for exercising a right. As an additional matter, consideration should be given to limiting the maximum sentence available in an Article 15 refusal case. 

b. Further amend Article 15 to provide that when an individual has previously been punished at Article 15, that misconduct may not later be made the subject of a court-martial; unless the prosecution demonstrates by clear and convincing evidence that prior disposition at Article 15 was procured by fraud, or through a failure of the commander to fully appreciate the nature and seriousness of the offense disposed of at Article 15. 

Rationale: Both these current practices have the clear appearance of Apiling on@ and the first has a chilling effect on the exercise of statutory rights. They detract from the respect that the system needs to operate effectively.

1. To abolish the right of the member to refuse punishment for minor infractions with serious limitations upon available punishments.

There may be some consideration given to this point for units forward deployed in a combat zone under very limited circumstances. The ability of the Army and Air Force to operate in a combat zone and in contingency operations with the Arefusal@ right should be studied. Also, the current manner and availability of legal resources to deployed naval units should be studied. The current "vessel exception" was initially considered and specifically rejected by the other services, and it appears that the right to refuse has not hindered the effective administration of the system in these services.

2. To abolish the right of appeal for minor infractions but allow an Article 138 complaint or IG complaint if the member feels aggrieved. 

The present system seems adequate. An Article 138 complaint presumably travels the same path as Article 15 appeal. Appeal of a punishment does not seem the appropriate work for an inspector general. 

3. To forbid a record of nonjudicial punishment for minor infractions from becoming a part of a member's service record and making the results inadmissible in other judicial or administrative proceedings including bar to reenlistment, promotion boards, etc.

4. To create a military magistrate by statute with the power to adjudicate more serious but albeit minor allegations of misconduct referred to the magistrate by an accused's commander with the power to order punishment under circumstances similar to existing non judicial punishment with the corresponding right to refuse such punishment and demand a trial. The results of the proceedings would become part of the member's record. Also, adjudication by the magistrate would bar further prosecution under double jeopardy rules. 

B. Should the vessel exception to the right to demand trial by court-martial be repealed?

Rather than repeal the exception efforts should be taken to limit the exception to its intended, or perceived intended purpose. In the days of sail and infrequent communications with land, the refusal right could have had a severe impact on naval operations. However, deployment schedules, technology, and other changes have seemingly reduced the need for the exception. See Sullivan, Overhauling the Vessel Exception, 43 Nav. L. Rev.57 (1996).

C. Should be vessel exception to the right to demand trial by court-martial be extended to personnel of unified commands whose units may be deployed under analogous circumstances?

Before doing this, some empirical data should be gathered. It is believed that some data might exist within the Marine Corps, about the impact of the refusal right in Desert Shield/Storm.

D. Should the punishment of bread and water be abolished? 


X. SUMMARY COURTS-MARTIAL 

A. Should Article 20 be amended to (a) permit punishment of officers and (b) extend the scope of enlisted punishment? 

No change should be made in the absence of empirical evidence of some problem to be solved.

B. Should the summary court-martial be abolished?

Same.

XI. POST-CONVICTION REMEDIES 

A. Should the Code be amended to provide a comprehensive statutory scheme for collateral attacks on courts-martial similar to the one found in Title 28, U.S. Code, for habeas corpus in Federal District Courts and in state post-conviction relief acts?

Under current law, federal habeas review does not provide a meaningful assessment of whether constitutional error tainted a court-martial conviction. Two factors combine to rob federal habeas review of its importance: a lack of counsel for the petitioners and an extremely narrow scope of review. In addition several other factors compound the issue of post-trial relief: the lack of a standing judiciary where the military judge retains jurisdiction of a case until the case is received by the appellate court, and the lack of a hearing mechanism. The current statutory authority for habeas corpus relief for military accused is 28 U.S.C. '' 2241. In Burns v. Wilson, 346 U.S. 137 (1953), a majority of the court adopted the position that civil courts on habeas corpus could review claims of denials of due process rights to which the military had not given full and fair consideration. Most habeas corpus cases have arisen in the Tenth Circuit because that is the federal jurisdiction over the U. S. Disciplinary Barracks. Until new data comes in, we should assume that the restrictive standard of review in the Tenth Circuit for military cases is the guidepost. In Lips v. Commandant, U.S. Disciplinary Barracks,(30) 997 F.2d 808 (10th Cir. 1993), cert. denied, 114 S. Ct. 920 (1994), the initial scope of review was limited to determining whether the claims Lips raised in his federal habeas corpus petition were given full and fair consideration by the military courts. If they were given full and fair consideration, the district court should have denied the petition. In the Tenth Circuit, an issue that is raised before a military court is deemed "fully and fairly considered" even if the military court rejects the claim without explanation. On the other hand, if a claim has not been presented before a military tribunal, absent "cause excusing the procedural default and prejudice resulting from the error," the claim has been waived for federal habeas purposes. Accordingly, a claim not raised before the military courts will not be reviewed, but a claim that was raised before the military courts cannot be the basis for relief. The only escape from this "Catch-22" is if the military courts expressly refused to consider an issue. As part of any further study, the Commission should consider the Military Habeas Corpus Reform Act proposed by Dwight H. Sullivan.(31)

B. Should United States v. DuBay and its progeny be codified to provide jurisdiction and authority for military judges to entertain collateral attacks on courts-martial?

Should the concept of a standing trial judiciary be instituted with full authority over a case from beginning to docketing at the CCA, United States v. DuBay need not be codified. A post-trial 39(a) session could accomplish the same types of inquiries as in DuBay.

C. Should judge advocates be authorized by statute to represent military defendants in Federal District Courts and the geographical Courts of Appeals?

We believe this is fraught with problems. Federal district and appellate court practice is vastly different to that of the military courts. For example, a federal judge is unlikely to tolerate frequent changes of counsel, regardless of the reasons. How will the counsel be admitted to practice.

D. If a comprehensive post conviction relief scheme is adopted in the UCMJ, should that be the exclusive remedy for a military defendant or should habeas corpus in a Federal District Court be available thereafter?


XII. MISCELLANEOUS 

A. Should the Code Committee be abolished?

Rather than continue the Code Committee, consideration should be given to establishing a military Judicial Conference, as proposed by General Hodson, which would have the UCMJ review and rulemaking responsibility. Also, serious consideration should be given to the establishment of a formal military bar which is regulated by the Judicial Conference. We commend you to Stephen G. Breyer, Judicial Independence in the U.S. Judicial power over rulemaking is considered a prime attribute of a fair and independent judiciary.

B. Should retired regular officers be eligible for appointment to the United States Court of Appeals for the Armed Forces?

The CAAF is intended to be a civilian court. Note the comment of Judge James Baker, on 1 March 2001 at the retirement of Thomas F. Granahan, Clerk of the Court, regarding the surrender of his reserve officer commission.

C. Should the political balance test for appointees to the United States Court of Appeals for the Armed Forces be repealed? 

If the political balance test is an appropriate mechanism to ensure the full independence of the Court, then its continuation is appropriate. However, whether the premise is supported is in doubt.

D. Should there be certification requirements by the Courts of Criminal Appeals and the United States Court of Appeals for the Armed Forces for appellate counsel?

There is no such requirement in the federal appellate courts or the courts of most states. Further, such a question should not be considered separate from the question of a Bar of the Court of Appeals for the Armed Forces. See below.

E. Should all military judges and military lawyers be required to maintain active status in good standing as a member of a state bar or the District of Columbia Bar?

No other courts in the country permit a lawyer to practice in the court unless they are in active status, are in good standing, and have been admitted. In addition the Equal Opportunity Commission, the Merit Systems Protection Board, and many other Commissions and Boards require a lawyer/judge to be an active member of the bar.

F. Should the Code Committee or the United States Court of Appeals for the Armed Forces be given the additional responsibility of administering a single military bar with uniform standards of professional responsibility, thereby replacing the requirement that military members be admitted to a state bar?

Such a system requires substantial study, including a look at the need for a statutory revision. It seems unlikely that military lawyers would want to give up their active licence in a state jurisdiction. For the young lawyer who may leave active duty early they would probably want to retain their state licence. For the long term judge advocate, the considerations may well become reciprocity and readmission considerations. Whoever is charged with the professional responsibility function, it should be with the Courts, not The Judge Advocates General. In addition such a practice might add to the transparency the public expects of a profession. While not all of the disciplinary activities of the state and federal regulating arms are public, there is sufficient transparency in the process that members of the public, those affected, can properly evaluate the professional credibility of the bar. On balance, it seems doubtful that there is substantial benefit to replacing the requirement that military members be admitted in a state.

G. Should the rulemaking contemplated by Article 36 be conducted by a broad-based advisory committee with civilian as well as military membership?

This was an item which BADC submitted as a potential topic, with the following rationale. BADC now submits the rationale for the Record and for the Commission=s consideration. BADC has favorably endorsed this as one of General Hodson=s 1972 proposals.

Rationale: The federal civilian court rulemaking process has used a judicial conference with advisory committees for years, with the result that the rules are proposed and adopted in a pubic on- the- record process which Aenables the adoption of carefully considered rules in a process designed not only to result in the most appropriate rules being adopted, but to enhance the prestige of the courts and the public=s confidence both in the courts and in their rulemaking process.@ ABA, Report accompanying Recommendation 100 (adopted Feb. 1997) at 7. The ABA, which proposed an advisory committee and an open and public process for military rulemaking believed that the same benefits would carry over to the military system, as succinctly stated in its conclusion: ABoth the quality of the resulting military court rules, and the public=s confidence in the military justice system, will be enhanced. The military court rulemaking process will then be deserving of the same respect and public confidence presently afforded rules for civilian Federal courts.@ Id. at 12. See Kevin J. Barry, Modernizing The Manual For Courts-Martial Rule-Making Process: A Work in Progress, 165 Mil. L. Rev. 237 (2000).

H. Joint Trial and Defense offices

The BADC recommends serious consideration be given to a joint trial and appellate prosecution and defense office. While the argument can be made that nuances in practice between the services make it harder, practice may not in fact prove that out.

a. The Court of Appeals for the Armed Forces has not had any apparent difficulty in applying the Uniform Code of Military Justice, the Manual for Courts-Martial, Service regulations, or federal law to the decision in a particular case regardless of service. 

b. Based on their own experiences and the experiences of others reported to them, the Military Law Committee of The BADC, believes that many cases today have multiservice counsel and accuseds. Cases have been heard in Panama, Bosnia, Azores, Italy, and Japan. 

I. Should the arrangements for independent investigative support for military defense counsel be made statutory?

There appears to be no good reason why the defense is deprived of adequate resources, to include investigative resources, especially resources afforded them in all civilian jurisdictions. Compare 18 U. S. Code ' 3006A.(32) Only in the military does the prosecutor have the ability to control the manner in which the defense investigates and prepares for trial. Only in the military does the prosecutor and convening authority (read U.S. Attorney or Attorney General) have absolute power to grant or deny access to resources prior to referral of charges, and a significant influence over access after referral. Only in the military does the prosecutor have the power to deny witnesses, or at the very least force the defense to justify calling a witness. The military risks creating two types of military accused=s. Those who have money and those who don=t. (Note: those with the personal resources are more likely to be officers.) Research should be conducted on how many accused=s now routinely hire their own investigator, expert, or transcriber, because the prosecutor denies such access.

J. Should JAG officers or Law Specialists be required to serve at least one year as trial counsel who litigate a minimum number of contested cases before being assigned as defense counsel, in order to provide more effective assistance to enlisted personnel, who usually cannot afford civilian representation?

Whether myth or reality, there has always been a perception that the new and inexperienced counsel go to defense, while the experienced go to the prosecution. It was so for Senior Judge Everett in the 1950's. See Hon. Robinson O. Everett, The First 50 Years of the Uniform Code of Military Justice: A Personal Perspective, [2000] Federal Lawyer 28 (Nov.-Dec. 2000). What is clear is that being a prosecutor can make you a better defense counsel and vice versa. This is not just a defense counsel issue. But if someone has to lose because of inexperience, it should be the sovereign and not the accused!

K. Should decisions of the Boards for Correction of Military and Naval Records be reviewable by the United States Court of Appeals for the Armed Forces?

There has been much discussion regarding the subject of changing the availability and scope of judicial review of military administrative personnel decisions. The BADC has twice in the past three years sponsored Recommendations which were adopted by the ABA calling for a moratorium on any changes to judicial review of such military personnel decisions until such time as Congress had an opportunity to hold hearings on the entire area, including the current structure and operation of the Boards for Correction of Military and Naval Records. Clearly there is need for an extensive study of these areas.

As pointed out by BADC in the two reports accompanying the ABA Recommendations, two studies were commissioned by the Congress in the 1996 DOD Authorization Act, and accomplished by the Department of Defense. One addressed the Correction Boards, and found them operating acceptably—in some substantial measure because there was a right to seek judicial review. The other addressed the right to judicial review, and recommended substantial limitations on that right—in some substantial measure because the Correction Boards were viewed as operating properly. These two studies were, in a real sense, like the proverbial "two ships passing in the night." Neither study was well grounded, and each reached its conclusions based on invalid assumptions regarding the subject of the other study.

BADC believes that prior to any change to—particularly any limitation or curtailment of—judicial review of military administrative personnel decisions, a serious and well grounded study, conducted by an adequately diverse body, is needed. That study should not, absent compelling reasons fully set forth and justified, recommend any limitation or curtailment on the right currently available to servicemembers and veterans to judicial review in the Court of Federal Claims or in federal district court. Military personnel are the ones who commit themselves to go in harms way to defend fundamental freedoms for the rest of us. There is simply no justification to deny to those military members and veterans the very rights they defend for the rest of us.

Additional Items Suggested for Consideration by BADC but not included in Final List of Topics

Each of the following were items which BADC received from members or advisors and submitted to the Commission as a potential topic, with a rationale. BADC now lists these topics and their rationales for the Record and for the Commission=s consideration.

1. Change the current practice which has been interpreted to allow a convening authority to convert a punitive discharge to a period of confinement unless the accused requests or concurs in such an action.

Rationale: The MCM has always authorized an action in Aclemency@ to mitigate a harsher penalty to a lesser one. In recent cases, this authority has been used to attempt to convert a BCD or DD to a period of confinement of a year or two years. In some cases, both the accused and the sentencing body (members) clearly believed that any period of confinement was a distinctly harsher penalty than the BCD with no confinement which was awarded. See, e.g., United States v. Frazier, 51 M.J. 501 (1999). A Manual change will eliminate the appearance of vindictiveness in such cases which now taints the appearance of fairness in the operation of the system. In addition, the job market - and society=s views of the military has changed so the imposition of a BCD is no longer a significant impediment to civilian employment, and most service members would rather get a BCD than go to jail. Plain and simple

2. Motion for Judgement of Acquittal.

After a finding of guilty on any charge or specification announced by the members, a military judge may enter a judgement of acquittal on one or more of the charges and specifications, in the same manner as a federal district court judge acting under Rule 29, Fed. R. Crim. Pro. And see UCMJ art. 36, 10 U. S. Code ' 836.