The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No compensation can be paid for articles accepted and published.

Use of funds for printing this publication has been approved by the Director of the Bureau of the Budget, 10 September 1957.

REAR ADMIRAL WILLIAM C. MOTT, USN Judge Advocate General of the Navy

CAPTAIN ROBERT D. POWERS, JR., USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER FRANK J. FLYNN, USN

Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington 25, D.C. (Monthly). Price 15 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

The Manual rule is to the effect that all known offenses against an accused should be charged and tried at a single trial,' regardless of whether they are of similar character or related by having been committed as part of the same transaction. This practice is based upon the practical reasons of speed, efficiency and convenience in the functioning of judicial machinery, and has been common in military trials for many years. An exception to the rule is stated in the Manual, however, to the effect that minor derelictions should not ordinarily be joined with charges of serious offenses.' The apparent intent of this exception is not only to avoid unnecessary complication of trials for serious offenses but to bring the military rules somewhat closer to the Federal Rules of Criminal Procedure which require that offenses to be joined must be "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

Б

It is interesting to note that it was a settled rule at early common law that the indictment be confined to one distinct offense or restricted to offenses provable by evidence relating to a single transaction." The basis for 1. MCM, para. 30f.

2. See U.S. v. Jones, 2 USCMA 80, 6 CMR 80, U.S. v. Geib, 9 USCMA 392, 26 CMR 172; U.S. v. Taylor, 28 CMR 752, 756, and cases cited therein.

3. WINTHROP'S MILITARY LAW AND PRECEDENTS (2nd Ed, 1920 Reprint), at p. 152.

4. MCM, para. 26c.

5. LEGAL AND LEGISLATIVE BASIS, MCM, U.S., 1951, pp. 40-41. 6. Rule 8(a), 18 USC Rule 8(a).

7. Pointer v. U.S., 151 U.S. 396, 14 S. Ct. 410; McElroy v. U.S., 164 U.S. 76, 17 S. Ct. 31.

this common law rule was that joinder of unrelated offenses tended to confound the accused in his defense, to prejudice him as to his challenges, to hold him out to be habitually criminal and to distract the attention of the jury. Over the years, however, the restrictive common law rule evolved to that presently stated in the Federal Rules of Criminal Procedure, which is a compromise between the considerations of dispatch and the interests of the accused. Notwithstanding the present Federal rule, which has the force of a statute, or the Manual rule, there is little doubt, however, that if a number of offenses are such that their joinder in a single trial does violence to the concept of a fair trial, either in a Federal or military court, they may not be so joined.10

In view of requirements of the military community, together with the circumstances that "juries" in courtsmartial are generally highly intelligent and are subject to challenge for cause only on more direct bases than civilian juries, it may be said that the military rule of joinder approaches a fair balance between the conflicting interests of dispatch and the right of the accused to a fair trial without any substantial prejudice. Certainly the objections to joinder voiced by the common law that such action may tend to prejudice the accused as to his challenges or to distract the jury's attention are (Continued on page 80)

8. McElroy v. U.S., supra, citing numerous cases. 9. See Cataneo v. U.S., 167 F. 2nd 820.

10. Kuykendall v. Hunter, 187 F. 2nd 545. See also DeLuca v. US., 299 F. 471; Morris v. U.S., 12 F. 2nd 727, cert. diam. 296 U.S. 666, 57 S. Ct. 755.

TH

'HE PURPOSE OF this article is to outline sources of Naval Law. It is not intended to be an exhaustive bibliography, but rather a convenient guide to those materials most frequently used by, or most likely to be helpful to the naval officer.

Naval Law has been defined as the body of rules prescribed by competent authority for the government and regulation of the naval forces. In attempting to answer the question "where can the naval law be found?", one discovers that there is a great variety of materials that make up the repositories of naval law. These may be discussed in terms of the following generally accepted scheme of classification.

Navy law books fall into three major categories: (1) Primary authorities, or books containing the law; (2) Secondary authorities, or books about the law; and (3) Index books, or books useful in searching for the law. Primary authorities include the following: The Constitution of the United States, statutory enactments of Congress, Executive Orders of the President, Navy Regulations, General Orders, directives and manuals. In addition to these statutory or quasi-statutory materials, primary authorities also include Decisions of the Courts, the Secretary of the Navy, and the Opinions of the Attorney General and the Judge Advocate General.

There is also available a great deal of secondary authority that discusses, explains, and annotates military law. This may be in the form of treatises, pamphlets, theses, and articles. The third major type of law book appears in the form of Digests, Indexes, Tables and Citators. These are classified as "index" or "search" books.

One final source of naval law must be mentioned though it doesn't fit the foregoing classi

"Mr. Richard C. Dahl is the Chief Librarian and Head of the Publications Branch, Office of the Judge Advocate General. He holds the B.A. and the Bachelor of Library Science degrees from the University of California, and the LL.B. from Catholic University. A member of the bar of the District of Columbia and the American Bar Association, Mr. Dahl was formerly an Assistant Professor at the Law School of the University of Nebraska. He is a member of the American Association of Law Libraries.

fication scheme and will not be treated in this article. This is the law that is developed by customs and usages of the service. Such a custom, to have the force and effect of law, must be long continued, certain and uniform, consistent, general, well known, and not in opposition to a statute or lawful regulation.

THE BASIC AUTHORITY for the existence of military law lies in the Constitution. From it flows the authority of Congress and the President. Article I, Section 8, empowers congress to make rules for the regulation of the land and naval forces. Article II, Section 2, designates the President as Commander-in-Chief of the Armed Forces of the United States.

Under the authority so given it, Congress laid down rules for the armed forces in the statute entitled "The Uniform Code of Military Justice." This code delegates certain authority to the President and allows him to subdelegate portions of it. Under this authority, and his own as Commander-in-Chief, the President has promulgated in the form of Executive Order 10214, THE MANUAL FOR COURTS-MARTIAL, 1951.

This Manual and the Code granted to the Secretary of the Navy the authority to promulgate and direct compliance with THE 1955 NAVAL SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL (MCM). Congress and the President have, in various statutes and Executive Orders, given the Secretary of the Navy authority to issue Navy Regulations, General Orders, and various other directives. The Secretary of Defense has also been given authority to issue directives. Often these directives are implemented by Navy directives just as SECNAV directives are at times implemented by directives issuing from subordinate naval commands.

In brief, this is the picture of the chain of authority behind the executive and legislative law-making that is one of the primary sources of Naval Military Law. Some of the most important links in this chain of authority are the statutes drafted by Congress to regulate different aspects of the organization and operation of the armed forces. Principal ones may be found

in the U.S. CODE: such as Title 5, Executive Departments and Government Officers and Employees; Title 10, Armed Forces; and Title 50, War and National Defense.

THE UNIFORM CODE of Military Justice (UCMJ), codified in Title 10, U.S. CODE, is the principal statutory basis for military criminal law. It has been described by one writer as the "sole mandatory force now backing up discipline in the armed forces of the United States." It was established in May of 1950, but has since been revised. Thus the latest revised text with amendments should be used rather than the text appearing in Appendix 2, MCM.

A current text of the UCMJ was distributed in the fall of 1956 to be inserted as a prefix to the U.S. Navy Regulations. Up-to-date texts of the UCMJ may be found in the U.S. Code, the U.S. Code Annotated, and the Federal Code Annotated. The latter two works are particularly useful as they provide notes and annotations and are kept current with pocket supplements.

The INDEX AND LEGISLATIVE HISTORY—UNIFORM CODE OF MILITARY JUSTICE (Washington, Government Printing Office, 1950) contains all the committee hearings and the Senate and House reports. When used with a smaller work published by the Navy, CONGRESSIONAL FLOOR DEBATE ON THE UNIFORM CODE OF MILITARY JUSTICE, a lawyer can construct a plausible argument as to the meaning Congress intended to give the words of the Code.

The Uniform Code of Military Justice was implemented by the MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951. In the form of Executive Order 10214, it is printed in the February 10, 1951, issue of the FEDERAL REGISTER. Printed in book form by the Government Printing Office it includes the Constitution, the UCMJ, a trial guide, forms, rules of evidence, and a table of maximum punishments. Its provisions have the same legal effect as the provisions of the UCMJ (U.S. v. Lucas, 1 CMR 19, 22).

Executive Orders and case decisions have brought about a number of changes in the MCM. These changes were the subject of several articles, now out of print, appearing in the JAG JOURNAL. They also appear in the UNITED STATES ARMY 1959 CUMULATIVE POCKET PART TO THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951. A short history of the preparation of the MCM, together with a brief discussion of the legal and legislative consideration involved in drafting the new manual may

be found in a 1951 Government Printing Office publication entitled LEGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS-MARTIAL.

The Navy has published a companion volume to the MCM whose purpose is to provide those regulations necessary to supplement it. The NAVAL SUPPLEMENT does not attempt to explain or annotate the Manual. Instead, it deals with such questions as who may convene general courts-martial, administrative procedures for review of courts-martial, certification to perform duties of law officer, effective period of a sentence of confinement, etc. Before using it one should be sure that all changes (6 to date) have been made.

THE MILITARY DEPARTMENTS of the ex

ecutive branch of the Government have the authority to promulgate rules and regulations not inconsistent with the Constitution or with laws enacted by Congress. The Navy publications that are directive in nature are binding and conclusive upon its members so long as they do not conflict with existing statutes or regulations of a higher authority.

These regulatory publications take many forms. UNITED STATES NAVY REGULATIONS, NAVY DEPARTMENT GENERAL ORDERS, Bureau Manuals, and the Navy Directive System are the most important of these. Varied and complex, they are best understood when one has the opportunity to use them. Nevertheless, they are mentioned briefly because they are a practical source of naval law.

In 1948, the UNITED STATES NAVY REGULATIONS were issued in accordance with the provisions of section 1547 of the Revised Statutes of the United States (the substance of this statute is found in section 6011 of Title 10 of the United States Code). This publication is concerned with "Principles for the guidance of the Department of the Navy as to the duty, responsibility, authority, distinctions, and relations of the various bureaus, officials, and individuals each to the other." Among other things it sets forth a number of articles dealing with the rights, duties and restrictions of individuals. Like most Navy regulatory publications, it is kept up-to-date with changes which should be checked carefully when it is used.

NAVY DEPARTMENT GENERAL ORDERS series of 1948, is a collection of orders, decisions and policies of the Secretary of the Navy. These are of interest to the entire Department of the Navy. Many of the General Orders of the earlier 1935 series which were

not cancelled or revised were incorporated into the Navy Regulations or various manuals.

HE BUREAUS AND OFFICES have issued manuals and other publications containing orders, instructions, and procedures pertaining to matters under their control. Just as with orders and instructions issued by bureau heads in the execution of their assigned duties, these may be considered as emanating from the Secretary of the Navy and shall have full force and effect as such.

The Navy defines "directives" as "written communications or issuances which (1) prescribe or establish policy, organization, methods, or procedures; (2) require action or contain information essential to the effective administration or operation of activities concerned." With a few exceptions (such as manuals and other instructional book-type publications) all directives are issued in the NAVY DIRECTIVES SYSTEM which provides a uniform plan for issuing, filing and maintaining them. This plan is explained in detail in SECNAVINST P-5215.1A, CH-2, 15 Sept 1958.

Included in the directive system but often filed elsewhere are the following series of general messages: ALNAV, ALNAVSTA, ALSTACON, ALSTAOUT, NAVACT, and NAVOP. An annual consolidated check list of all effective instructions is ussued by the Administrative Office, Navy Department. Quarterly supplements to this list are also distributed as well as an annual consolidated subject index.

The Office of the Judge Advocate General has distributed an INDEX TO NAVY LEGAL AND QUASI-LEGAL DIRECTIVES (NAVEXOS P-1901, July, 1960). The purpose of this publication is to provide a listing of current instructions of particular interest to naval personnel concerned with legal and quasi-legal questions arising in the military service. The instructions are indexed and also listed numerically for easy checking.

THE SECOND MAJOR SOURCE of primary authority in the field of military law is found in reports of judicial and administrative interpretations. When a court, for example, applies or interprets a statute in the process of trying a case, such an interpretation becomes an authoritative guide and, in effect, a source of law. When a question has been once decided by a court, its reasoning and decision is utilized in later similar cases.

Since May 31, 1951, the decisions of the U.S. Court of Military Appeals (COMA) and selected

decisions of the Boards of Review have been published in the COURT MARTIAL REPORTS. This set replaces the COURT MARTIAL ORDERS of the Navy, the BOARDS OF REVIEW AND JUDICIAL COUNSEL OF THE ARMY, and COURT-MARTIAL REPORTS OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE.

The CMRS have such usual aids to research as tables of cases, indexes, numbered headnotes, and tables of orders, regulations and laws cited. At present this set consists of 28 bound volumes. The publisher does not issue "advance sheets" for this set. The Air Force publishes a JAG REPORTER that carries digests of the recent COMA and Air Force Board of Review Decisions. The Army does the same with its JUDGE ADVOCATE LEGAL SERVICE.

The Lawyers Co-operative Publishing Company publishes The Decisions of the Court of Military Appeals in a separate edition as well as in the Court Martial Reports. The Decisions of the Court of Military Appeals consisting of 10 volumes to date, gives the cases in chronological order. The cases are headnoted and indexed in each volume. The headnotes are classified according to the same scheme as is used in the DIGEST OF OPINIONS. Occasionally citations to standard commercial publications are made. Volume One contains the Rules of Practice and Procedure for this Court. A very useful method of locating COMA cases by subject is to use TEDROW'S DIGEST, a work to be discussed later in this article. A means of keeping up with the new cases is with the advance sheets for this set. About 30 of these pamphlets are published each year.

The

THE BOARDS OF REVIEW are the first appellate courts in the system of Military Justice. The Boards hear, decide, and write opinions. Certain of these opinions are selected for publication in the Court Martial Reports. others, filed in the library of the Office of the Judge Advocate General, are not indexed and therefore are of limited value as a source of military law. Although Board of Review cases, as precedents, do not have as great a weight as those of the Court of Military Appeals, they should be used whenever available, especially in those areas where the court has not spoken.

Civilian Federal Courts may in limited circumstances have authority to review decisions of courts-martial. These are usually in the form of collateral attacks dealing with the question of jurisdiction. Such decisions as may result from these cases are binding on the military. Federal Court Cases are also useful at times for opinions concerning evidence

where there are no applicable cases in the CMRS or the point is not covered in the Manual. These cases will be found in the U.S. REPORTS, the FEDERAL REPORTER and the FEDERAL SUPPLEMENT.

The President and the Secretary of the Navy may be called upon to make decisions as to the applications of certain laws. The Attorney

General or the Judge Advocate General are frequently asked to render opinions as to the legality of various actions. These decisions and opinions normally have the force and effect of law.

OPINIONS OF THE Judge Advocate General of the Navy constitute legal advice from an attorney to his client and as such, at times, are treated as confidential in nature. Some opinions are prepared, in part, for the guidance or information of the public and when available form part of our naval law. A ruling of the JAG is the law until overturned by higher legal authority. In certain areas, however, the ruling of the JAG is final.

Some of the Navy JAG opinions, prior to 1951, were reported in the COURT-MARTIAL ORDERS. A carbon of most of the opinions rendered between 1912 and 1952, are shelved in the library of the Office of the Judge Advocate General. A card file index of these is maintained in the library. Since 1951, selected opinions of the JAG have been published in the CMRS and THE DIGEST OF OPINION-THE JUDGE ADVOCATES (DIGOPS).

GENERAL OF THE ARMED FORCES

The DIGOPS Contain digests of selected opinions of the Judge Advocates General of the three services and of the Chief Counsel of the Coast Guard; selected decisions of the Boards of Review; U.S. Court of Military Appeals decisions; and miscellaneous opinions and decisions of government agencies and courts.

Classified according to a scheme developed by the publisher, material is compiled under alphabetically arranged topics which are broken down into sections and subdivisions. Thus, like material is brought together and may be found by using a topic approach. There is also, in each volume, a Word Index and a Table of Cases and Opinions Digested as well as a Table of Orders, Law and Regulations cited. These provide other methods of finding the desired information.

Four quarterly issues are published each year. They are cumulated yearly and published as a bound volume. To date, there are 9 volumes in this set. There is yet no cummulative index so

that each volume must be searched separately. Like all digests its strength and weakness lies in the brevity of its paragraphs. They must be used with care or might prove misleading.

MATERIALS CLASSIFIED AS secondary authority should not be depended upon as conclusive in their statement of the law. They are, however, useful aids in the search for primary authority, furnishing guides to cases and statutes. They also fulfill the useful function of explaining, expounding and summarizing the law.

One secondary authority in the field of military law has successfully survived the test of time and may be classified as persuasive authority. This is the standard text on military law, Winthrop's MILITARY LAW AND PRECEDENTS (second edition, 1920 reprint, G.P.O., Washington, D.C.). This work has been called the "Blackstone of Military Law." Invaluable for general background in military jurisprudence, it is a necessity for anyone doing serious research in military justice. As it has not been edited since 1896, it can only be a starting point that must be checked against current authorities.

A number of helpful books have been written on the subject of military law since the adoption of the Uniform Code of Military Justice. None, as yet, have gained the statute of Wintrop's classic treatise. Nevertheless these additional volumes are very useful and should be included in military law libraries of any size. Space doesn't permit an adequate discussion of these works but some of them should be noted.

ALFRED AVIN'S BOOK, THE

LAW OF

AWOL (New York, Oceana, 1957), is a comprehensive analysis of the substantive law of AWOL and related offenses. It provides a valuable collection of authorities. William Aycock and Seymour Wurfel's practical treatise, MILITARY LAW UNDER THE CODE OF MILITARY

JUSTICE (Chapel Hill, U. of North Carolina Press, 1955), contains two particularly helpful chapters on jurisdiction and "military due process." Two useful chapters on investigations and insanity under military law are found in Robinson Everett's text, MILITARY JUSTICE IN THE ARMED FORCES OF THE UNITED STATES, (Harrisburg, Military Service Publishing Co., 1956).

A detailed account of court-martial and appellate procedure is found in Benjamin Feld's (Continued on page 77)