substitute for the Grand Jury indictment in the Article 32 Investigation.

A serviceman accused of committing a criminal offense also is entitled to specific rights which his civilian counterpart may not enjoy. These additional rights include the following:

1. Right to counsel at no expense to the accused.

2. Total defense discovery at the pretrial Article 32 Investigation. 3. A pretrial advice in cases referred to general court-martial.

4. Expert defense witnesses at no expense to the accused.

5. Compulsory attendance of all military witnesses.

6. A free transcript in all court-martial cases.

7. Right to appellate defense counsel at no expense to the accused. 8. Mandatory appellate review in all cases involving a punitive discharge or confinement for a year or more.

Congress provided these additional rights to persons charged with military offenses because of the likelihood that the serviceman will be away from his home, family, friends, and sources of money. In short, the serviceman charged with an offense under the Uniform Code of Military Justice is afforded the rights often provided to indigent defendants in civilian judicial systems.

All of these safeguards and protections are included in the provisions of the Uniform Code of Military Justice. In the landmark case of Miranda v. Arizona, 384 U.S. 436, 489 (1966), which held that a citizen is entitled to be advised that he has a right to an attorney when interrogated, Chief Justice Earl Warren used the UCMJ and the military justice system to illustrate the application of the rule announced in Miranda:

Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him. Denial of the right to counsel during interrogation has also been proscribed by military tribunals.

In enacting the Uniform Code of Military Justice, Congress created not only a system which accords service members virtually all the procedural protections they would be afforded in civilian courts but also a system which guarantees to servicemen many additional protections not enjoyed by persons accused of criminal offenses in the civilian community.

Criticism of the System

The military judicial system is not without its critics. Some critics claim it does not go far enough in protecting accused persons while others argue that the system is now unworkable because of the protections given the accused.

Critics of the military justice system voice concern over the possibility of abuse where the convening authority, a commander, appoints the military judge, trial counsel, defense counsel, jury, and also conducts the initial review of the trial after it has been completed. While com

mand influence is illegal and cannot be used to influence the outcome of a court-martial, critics argue that the structure of the system permits the commander to control the proceedings through the exercise of his legal powers.

One area, it is submitted, in which the commander can exercise his legal powers adversely to the accused is in the selection of jury members. There is no random selection of jury members in the military justice system. All jury members are picked by commanders. Military juries are made up of officers except where the accused requests that the court consist of at least one-third enlisted men. Critics argue that jurors hand picked by the commanders denies the serviceman his right to a trial by a jury of his peers chosen at random.

Another criticism of the military justice system concerns the "general articles," Articles 133 and 134 of the UCMJ, which rather than providing specifically defined crimes, make criminal such offenses as "conduct unbecoming an officer" and "conduct of a nature to bring discredit upon the armed forces." Critics contend that these crimes are unconstitutionally vague, and that they allow commanders to decide for themselves what conduct is, or is not, criminal. The Supreme Court of the United States in the recent decision of Parker v. Levy, 417 U.S. 733 (1974) dismissed these criticisms and ruled that Articles 133 and 134 were constitutional.

A further criticism of the military justice system is directed to the role of the Staff Judge Advocate as an advisor to the commander and a reviewer of defense requests. As an advisor to commanders on legal matters, the Staff Judge Advocate must review the evidence in a case and make a recommendation to the commander as to whether the accused should be tried by court-martial. But the Staff Judge Advocate must advise the commander on defense requests for appropriate relief and on post trial matters such as clemency and suspension of sentences. In effect, critics argue that the Staff Judge Advocate is a prosecutor, defense counsel and judge, and that it is unfair to the accused to have all of these responsibilities vested in one person. The United States Court of Military Appeals discussed the conflicting obligations of the Staff Judge Advocate in an opinion written by Judge Latimer in United States v. Albright, 9 U.S.C.M.A. 628, 634, 26 C.M. R. 408, 414 (1958). In his opinion Judge Latimer stated:

I believe the Court errs grievously when it fails to give due consideration to the varied duties and responsibilities of a staff judge advocate and his capacity to perform what on the surface appear to be conflicting obligations. By law and by regulation, he is cast in a role which requires military, judicial, and administrative functions and to hold the performance of one type of work bars him from performing another is to destroy the effectiveness of the office. In connection with his military duties, he is advisor to his commanding officer on legal matters, including those dealing with military justice. Article 6(b) of the Uniform Code of Military Justice directs that convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in mat

ters relating to the administration of military justice. Conversely, a staff judge advocate has only the authority to act for or on behalf of the commander, and he must consult with him and obtain his approval before any action can be taken on those duties belonging to the commander which cannot be delegated. In this sphere of activity, there is a relationship between the two which requires some degree of partisanship for, whether we like it or not, in this capacity the lawyer cannot sit on the fence. He must take a position on one side of the question. As to his administrative functions he is chief spokesman for the commanding officer on all legal matters, and it is his duty to supervise the administration of justice within the command. When he wears that hat, he must see that military justice is properly and expeditiously rendered and that it is not miscarried against either the accused or the Government. He must make certain that both trial and defense counsel performs their duties in an appropriate manner and advise and consult with them on particular cases. There are many procedural and substantive law questions which he may be required to discuss with them before seeking a decision from his superior. He must keep informed of the status of cases, and he must proceed on his own initiative to institute reforms that will improve the administration of justice within the command. Finally, he is the legal conduit between the commander and other officers and men of the organization.

A staff judge advocate wears his judicial robes when he reviews charges before trial by general court-martial, reviews records of general courts-martial after trial, reviews records of special courts-martial involving bad-conduct discharges, and examines records of trial by special and summary courtsmartial.

The court makes clear that Staff Judge Advocates do have to assume a number of roles in the trial of court-martial cases.

An additional criticism of the military justice system concerns the role of the military judge. While military judges were given great control over court proceedings as a result of the 1968 Military Justice Act, some observers believe the powers of military judges should be expanded to include the right to punish for contempt and to exercise sentencing powers in all cases including the right to suspend sentences.

In contrast to these criticisms, others argue that commanders are losing control over the administration of military justice and that the loss of control is having an adverse effect on discipline. It is submitted that the increase in safeguards protecting the rights of accuseds have slowed the system down to such an extent that is is no longer possible to punish misconduct soon after it occurs.

It is true that the system has been changing continually in the direction of less command control, and greater procedural safeguards for those accused of committing military offenses. While there are still many ways in which a commander can make his influence felt within the military justice system, commanding officers are expected to act with propriety and good judgment in disposing of cases in accordance with the law. The failure of commanders to act in a proper manner and to exercise good judgment in the administration of military justice not only denies an accused his right to a fair and impartial trial, but also subjects the military justice system to civilian criticism and inspires calls for further reform and civilianization of the military justice system.

The criticisms noted above suggest that there are still disadvantages and weaknesses in the administration of military justice. During the course of this text, the student should keep in mind the areas of criticism of the military justice system, so that he can decide for himself which, if any, are valid.

The Officer's Role in the System

The obligation of a commander to take corrective action personally for incidents of misconduct brought to his attention is a concept unique to the military justice system. Because the armed forces are made up of citizen soldiers, the legislature has placed some limitations and restrictions on the commander's power to take corrective action. While the legislature has provided commanders with tools to handle minor offenses, it has structured a system for handling more serious offenses which cannot be controlled by a single person.

Under the Uniform Code of Military Justice, the commander is responsible for disposing of minor offenses and administering and executing the military justice system. However, his control over the outcome of judicial proceedings is limited severely. Nonetheless, the commander finds himself in a position of potential control over the proceedings which is unlike any held by an officer in the civilian judicial system.

The Uniform Code of Military Justice provides by law more safeguards and greater security to an accused than any other judicial system in the world. It will do so, however, only if it is administered in accordance with the requirements of the law. Administration of the system is not solely the responsibility of military lawyers; it is the responsibility of all officers.

The newly commissioned officer must be able to use the military judicial system efficiently and perform his role as a leader effectively. There is no substitute for good leadership: an officer must gain the respect of the enlisted man and guide him in his duties by setting a good example, by giving him clear instructions and sound advice, and by showing understanding of his problems. An effective leader instills discipline through his own actions; he does not create discipline by using the military judicial system.

When problems do arise, such a leader knows that military justice is but one of the options available to him. An officer must rely upon all of his creative powers to motivate soldiers entrusted to his command, and only if these powers fail, should he resort to trial by court-martial.

If a court-martial is deemed necessary, the decision to proceed should be one based upon all the facts available. Most often the staff judge advocate assigned to the command can be of assistance in making this decision. While possible public reaction should never deter a commander from deciding to proceed with a court-martial, commanders do have an obligation to consider whether their decision to use the military justice system is appropriate in view of the facts and circumstances presented and the difficulties to be overcome.

CONCLUSION

The new officer must understand the fundamental concepts of military law and should be aware of the advantages and disadvantages of the military justice system. He should recognize that the procedural safeguards guaranteed accused persons are no more than the codification of concepts of fundamental fairness. This concept should be applied not only to judicial proceedings, but to all forms of command action. The commander who exercises fairness in making all of his decisions will be respected by the men serving under him and will have fewer discipline problems. The role of effective leadership is most important in preventing serious problems from occurring.

DISCUSSION PROBLEMS-CHAPTER 2

1. Based upon your knowledge and experience, what is your view as to the role and function of a civilian district attorney, state's attorney, or other governmental legal officers. How does this compare with the function of the Staff Judge Advocate?

2. In the military, the commander plays a definite role in the administration of the judicial system. Should the commander be removed completely from the judicial system leaving it entirely to the lawyers as is done in a civilian community, or, is the military right in having the commander in the judicial process?

3. Do you believe that the military needs a separate system of justice or law for its soldiers? Should soldiers be tried before civilian courts? Is your answer the same in time of war in oversea areas?