February 2012 the journal of the judge advocates association

Transcription

February 2012
the journal of the judge advocates association
the journal of the judge advocates association
February 2012
"Never doubt that a small group of thoughtful, committed
citizens can change the world."
- Margaret Mead
This edition of The Judge Advocate focuses on service: your service
to the country, your service to the JAG corps, your service to the
Association, and your service to each other.
We begin with the president‘s column and Admiral Joerg‘s vision
of how he and the Board of Directors intend to serve, but also his
call that you contribute your time and talents to serve your colleagues and your Association.
The Judge Advocates Association is a
Washington, D.C. chartered non-profit
organization dedicated to the advancement
of judge advocates and practitioners of military law
The Judge Advocates Association
RADM Norton Joerg, JAGC, USNR (ret.)
President
BG Malinda Dunn, USA (ret.)
President-Elect
Col Carol Hattrup, USAF (ret.)
Vice President
Col James Russell, USAF (ret.)
Secretary
Brig Gen Edward Rodriguez, Jr., USAFR (ret.)
Treasurer
COL Marc Warren, USA (ret.)
Immediate Past
President
MG John Altenburg, USA (ret.)
ABA Delegate
Lt Col Christopher Santoro, USAFR
Executive Director
Post Office Box 30380
Alexandria, VA 22310-8380
[email protected]
(202) 318-9122
www.jaa.org
Colonel Fred Borch‘s Judge Advocate History column highlights
Colonel William Butler Remey, a Marine who was the first uniformed lawyer to serve as Judge Advocate General of the Navy
and who, to date, is the only Marine to have held that position. A
reprint from the 1945 edition of The Judge Advocate Journal showcases perhaps a more well-known historical figure but one whom
many may not have realized was a judge advocate.
Service to one‘s profession and colleagues is the heart of the mission of the American Inns of Court. This edition, we feature remarks made by retired Brigadier General David P. Carey, USA, a
past Executive Director of the American Inns of Court. General
Carey‘s eloquent comments should spur all of us to consider how
we can best improve our own skills while mentoring those who
will follow us.
―Mustangs‖ – officers who began their service as enlisted members – have a breadth and wealth of experience. Yet, as Alan
Goldsmith shows us, their willingness to serve in the officer ranks
may actually be a detriment in certain situations. Attorney Wojciech Kornacki, himself a former Army judge advocate, provides
an overview of provisions in the 2012 National Defense Authorization Act that impact all who currently serve. Finally, the Second Army JAG Regimental Print reminds all of us that judge advocates throughout history have embodied the finest qualities of
service.
in this issue . . .
MARCH
Our Mission, Our Effort ..................................................... 4
7-8
CAAF Judicial Conference
21
JAA Inn of Court
First to Fight; First to Advise ............................................... 8
COL Fred Borch, USA (ret.)
“Buffalo Bill,” Judge Advocate .......................................... 10
APRIL
13-14 Duke LENS Conference
18
JAA Inn of Court
Judge Robert Rigsby ......................................................... 11
Zoe Tillman
Robert G. Fuller, Jr. .......................................................... 13
RADM Donald V. Boecker
MAY
15
JAA/JAF Awards Dinner
* please note date change
The Inns of Court .............................................................. 16
BG David P. Carey, USA (ret.)
Falling Between the Cracks .............................................. 23
Alan E. Goldsmith, Esq.
What’s New in 2012 ......................................................... 27
Wojciech Z. Kornacki, Esq.
Timeless Values ................................................................ 30
LTC Jack Ohlweiler, USA
Opinions contained herein do not necessarily reflect
the views of the author’s current or former military
service, the Department of Defense, or current
employer unless otherwise indicated.
All content is Copyright © the Judge
Advocates Association unless otherwise indicated.
For reprint requests, please
contact the JAA at [email protected].
FROM THE PRESIDENT
T
he year 2012 is already well under way. In
fact, it is breathtaking to contemplate just
how fast it is moving along. With this in
mind, I have a few thoughts -- points of
emphasis, really -- to share about what I see as most
important for our Association over the next few
months.
Strategic planning will take up a large portion of my
time. I will shortly begin meetings with the Board of
Directors' Strategic Planning Group. We will be focused on the following central issues, which I outlined
in my interview in the last issue of this magazine:
1. Member solicitation and member recruitment challenges.
2. An examination and improvement of our service
offerings and value proposition for members -- all
members, across lines of seniority, specialty or practice
area, and location.
3. How to better engage the energies, talents and
knowledge of our members and constituents, potential
and actual, to meet the mission and add value.
Please think about these central questions, and provide
your thoughts directly to me, to any Board member, or
to our Executive Director either via e-mail to
[email protected] or our online contact form. I am looking for both ideas and support. As we work through
these questions, weighing solutions and proposing
courses of action to implement them, I will report on
our progress and the state of our thinking via this col4 the judge advocate
umn, and will look for your input every time. In addition, as we move toward implementation of any idea on
any front, I will be asking for volunteers to support our
efforts.
One initiative in particular that came out of our strategic thinking process is now up and running: this magazine. This magazine is a perfect example of a strategic
effort that addresses the central issues that I list above.
It is also an effort that requires broad support from our
members, as well as the support of a few dedicated individuals who would enjoy helping us produce an issue
each month. We need writers of articles, suppliers of
ideas for future material or themes, and an editor or
two. The magazine represents an opportunity for virtually every member to contribute and an opportunity for
a few to have a direct impact on the Association's
growth and effectiveness. We are already seeing the
potential, raising our profile and voice for the benefit of
our members and mission. We want to be sure that our
early momentum continues, and need your help for that
potential to be realized.
If you are interested in assisting with the magazine in
any of these capacities, please let us know, and become
part of our resurgence and growth.
I look forward to keeping you posted on our progress
in this and with respect other initiatives that we will
pursue in the months ahead. Please return regularly for
my updates, and please step up as your time and interests allow, for there will be much good work to do. All
the best!
February 2012
FROM THE PRESIDENT
February 2012
the judge advocate 5
Spring Conference
April 13th and 14th, 2012
Theme: After Afghanistan: Where To From Here? Examining the state – and future – of
national security law-related issues in the era beyond active battlefields, yet one with persisting
threats of technology-empowered terrorists, and one with rising peer-competitors.
Friday, April 13, 2012
7:30 a.m.
Registration & Coffee
8:30 a.m.
Opening Remarks: Professor Charles Dunlap, LENS Executive Director
8:45 a.m.
Panel 1: International Human Rights Law: Lessons Learned and
Challenges for the Future
Moderator: Professor Joseph Blocher, Duke Law School
Professor Madeline Morris, Duke Law School
Mr. Andrew Woods, Harvard Law School
Professor Saira Mohamed, UC Berkeley Law School
10:15 a.m.
Break
10:30 a.m.
Panel 2: Countering Violent Homegrown Extremism: Lessons Learned and
Moderator: Professor David Schanzer, Duke University
Professor Margaret Hu, Duke Law School
Professor Deborah Ramirez, Northeastern Law School
Professor Sahar F. Aziz, Texas Wesleyan School of Law
12:00 p.m.
Break (pick up box lunches)
12:30 p.m.
Luncheon presentation
Host: Professor Charles Dunlap, LENS Executive Director
Speaker: Dr. Mac Owens, Professor of National Security Affairs,
Naval War College
1:15 p.m.
Break
1:30 p.m.
Panel 3: National Security Judicial Deference: Lessons Learned and
Moderator: Dean David Levi, Duke Law School
Professor Neil Siegel, Duke Law School
Professor Nathan Sales, George Mason Law School
Professor Deborah Pearlstein, Cardozo Law School
3:00 p.m.
Break
Conference information: http://www.law.duke.edu/lens/conferences/2012/program
3:15 p.m.
Panel 4: International Military Operations: Lessons Learned and
Moderator: Professor Charles Dunlap, LENS Executive Director
Col (S) Rob Preston, USAF, Seymour Johnson AFB, NC
Maj Steve Strickey, Canadian Forces
Sqn Ldr Joanne Swainston, Royal Air Force
CDR Hugh Cameron, Australian Navy
4:45 p.m.
Break
6:15 p.m.
Reception
7:00 p.m.
Dinner
Host: Professor Charles Dunlap
Speaker: General Michael V. Hayden, USAF (Ret.), former director of the CIA
Saturday, April 14, 2012
8:00 a.m.
Registration & Coffee
8:30 a.m.
Panel 1: International Law of Armed Conflict: Lessons Learned and
Moderator: Professor Bill Banks, Syracuse Law School
VADM James W. Houck, USN, JAGC
Mr. Dick Jackson, Department of the Army
Professor Laurie Blank, Emory Law School
10:00 a.m.
Break
10:15 a.m.
Panel 2: The Intersection of National Security Law Issues and International
Business Enterprises: Lessons Learned and Challenges for the Future
Moderator: Professor Julie Maupin, Duke Law School
Mr. Craig Silliman, Verizon
Mr. Phil Carter, Caerus Associates LLC
Mr. Ted Kassinger, O’Melveny & Myers
11:45 a.m.
Break (pick up box lunches)
12:15 p.m.
Luncheon presentation
Host: Professor Scott Silliman, LENS Director Emeritus
Speaker: Mr. Will Gunn, General Counsel, Department of Veterans Affairs
1:00 p.m.
Break
1:15 p.m.
Ethical Issues of the Practice of National Security Law
Professor Charles Dunlap, LENS Executive Director
2:15 – 2:30 p.m.
Closing Remarks
Conference information: http://www.law.duke.edu/lens/conferences/2012/program
JUDGE ADVOCATE HISTORY
COL Fred L. Borch, USA (ret.)
Marine colonel was first Judge Advocate General of the Navy
A
Fred L. Borch III
(Colonel, USA, retired) is the Regimental Historian
and Archivist for the
U.S. Army’s Judge
Advocate General
Corps.
s strange as it may seem, the first
uniformed Judge Advocate General of the Navy was a Marine
colonel.
When Congress authorized a ―Judge Advocate General‖ (JAG) for the Army in July
1862, it provided that this position would
have the rank and pay of a colonel. But, when
Congress created the office of ―Solicitor and
Naval Judge Advocate General‖ in 1865, the
job was filled by a civilian lawyer who earned
a yearly salary of $3,500. Ultimately, this position disappeared in 1870, when Congress
abolished it.
In July 1878, Secretary of the Navy Richard
W. Thompson ―administratively created‖ the
position of ―acting Judge Advocate.‖ As Jay
M. Siegel explains in his authoritative Origins
of the United States Navy Judge Advocate General’s
Corps, Thompson‘s idea was to appoint a uniformed lawyer as acting Judge Advocate and
task that individual with providing legal advice on ―all matters submitted to the Secretary of the Navy involving questions of law
or regulations.‖ This acting Judge Advocate
was also made responsible for reviewing records of summary and general courts-martial,
and making recommendations on their disposition to the Secretary of the Navy.
To fill this new position of acting Judge Ad-
8 the judge advocate
vocate, Secretary Thompson selected 36-year
old William Butler Remey, a captain in the
U.S. Marine Corps. This was a logical choice,
in that Marine Corps officers in the Navy of
the 1870s ―handled the lion‘s share of courtmartial prosecutorial duties‖ and consequently were far more experienced than their
naval counterparts in court-martial procedure.
Born in 1842, Remey was commissioned as a
second lieutenant in 1861 at the age of 19. He
almost certainly tried enlisted sailors and Marines at courts-martial during the Civil War
and, after hostilities ended, prosecuted courts
-martial at California‘s Mare Island Naval
Shipyard and at the Washington Navy Yard.
Lieutenant Remey so impressed his superiors
he was appointed acting Judge Advocate of
the Marine Corps in 1870 and, after a tour of
duty in the USS Colorado, was made Judge
Advocate of the Marine Corps in 1875.
After assuming duties as the Navy‘s acting
Judge Advocate in 1878, Captain Remey focused exclusively on disciplinary questions.
He reviewed the records of courts of inquiry
and courts-martial for evidentiary, jurisdictional, and procedural errors. (Other legal
issues—involving contracts, claims, personnel, real estate, admiralty—were handled by
the U.S. Attorney General.)
(Continued on page 9)
February 2012
(Continued from page 8)
Remey worked hard in his new duty assignment and
apparently made valuable political and social connections in the Washington, D.C. establishment. According
to his nephew, ―Uncle Will … was very popular socially
… He drove a snappy one horse high trap in the late
afternoons and was quite a figure about town.‖ This
social prominence no doubt helped when Remey lobbied for his temporary position to be made permanent,
on the theory that naval law was so now so complex
that it required a uniformed officer—familiar with sea
service customs and culture—to oversee naval discipline. Congress agreed with Remey (and the Secretary
of the Navy) and, on June 8, 1880, enacted legislation
authorizing the president ―to appoint, for the term of
four years … from the officers of the Navy or the Marine Corps, a judge-advocate-general of the Navy, with
the rank, pay and allowances of a captain in the Navy or
colonel in the Marine Corps, as the case may be.‖
The next day, on June 9, President Rutherford B. Hayes
appointed Remey to be the first uniformed Judge Advocate General of the Navy and, after the Senate confirmed this appointment, now Colonel Remey (he exchanged his captain‘s bars for colonel‘s eagles) began
what would be a twelve year assignment.
Between 1880 and 1892, when Colonel Remey retired
from active duty, he received and examined all records
involving courts-martial, courts of inquiry, and ―boards
for the examination of officers for retirement and promotion in the naval service.‖ He also investigated complaints by his fellow officers of alleged violations of
naval regulations; these complaints were typically accompanied by a request from the complainer that the
Secretary of the Navy convene a general court-martial
to try the offender. Colonel Remey also reviewed pay
and promotion questions, retirement and other personnel matters. He examined claims from civilians who
wanted to be paid for work or travel they had done for
the Navy, or who wanted to be reimbursed for damage
to their property caused by the Navy. For example, a
Navy lieutenant commander filed a claim asking to be
reimbursed for his clothing and bedding, both of which
had been destroyed to prevent the spread of yellow feFebruary 2012
ver; Remey recommended that the
Navy pay the
claim.
Remey offered
legal advice on a
breach of contract
question and also
provided
legal
analysis on a patent infringement
claim. It seems
that he was will- Colonel William Butler Remey was the first
ing—and able—to Judge Advocate General of the Navy. He
served from 1880 to 1892. (U.S. Marine
answer even those Corps photo.)
inquiries that more
properly should go to the U.S. Attorney General. When
the commanding officer of the naval station located at
Beaufort, South Carolina, asked the Secretary of the
Navy if state civil authorities had the legal authority to
board a naval vessel and arrest and take from the ship a
sailor wanted for a crime, Remey drafted the telegram
that replied: ―In the case cited in your letter … they
have. See Statutes South Carolina.‖
But not all of Remey‘s legal issues were mighty: the
Secretary tasked Remey with determining whether a
midshipman third rate was entitled to his choice of
bunks on the starboard side of starboard steerage quarters because of his seniority.
In early 1891, Remey fell ill. His doctors prescribed rest,
and so Remey left Washington and spent the summer in
the mountains of Maryland. He returned to work in the
fall but, in early 1892, began showing signs of mental
illness. He subsequently had a complete physical and
mental breakdown. Not surprisingly, when his third
four-year term as Navy Judge Advocate General ended
in June 1892, Remey voluntarily retired from active
duty. He died of pneumonia less than three years later,
in January 1895, in a sanatorium in Massachusetts.
Colonel Remey‘s place in naval legal history remains
unique: the first uniformed lawyer to serve as Navy
Judge Advocate General and also—at least to date—the
only Marine to serve as the top uniformed lawyer in the
Navy.
“Buffalo Bill,” Judge Advocate
Reprinted from The Judge Advocate Journal, Vol II, No 1 (March 1945)
February 2012
MEMBERS IN THE NEWS
Zoe Tillman
Call of duty: Robert Rigsby’s service stretches from
Iraq to D.C.’s toughest wards
Excerpts of this
article are reprinted
with permission
from the February
27, 2012 edition of
The National Law
Journal, © 2012
ALM Properties, Inc.
All rights reserved.Further
duplication without
permission is prohibited.
H
e may have been smiling, but
District of Columbia Superior
Court Judge Robert Rigsby
barked his commands like a
drill sergeant at a group of
high school-age students.
Rigsby leads the unit at a time of transition
for the military as a whole. It's unclear what
the drawdown of troops in Iraq and Afghanistan might mean for the military's trial judiciary, he said, but it will be up to him to make
sure his team adapts.
Fix that tie. Take care of that belt. Stand up
and speak out. His voice grew louder as the students, in his courtroom earlier this month
for a law camp, repeated the program's credo
after him: "Manhood. Womanhood. Scholarship. Uplift. Perseverance."
Juggling what are essentially two full-time
jobs isn't easy, Rigsby said. Outside of his
duties as a presiding judge in Superior Court's
juvenile division, Rigsby spends many nights
and weekends at the unit's headquarters in
Alexandria, Va., or visiting other military
bases. Before he took command, he served a
six-month deployment overseas in 2009, presiding over courts-martial in Iraq, Afghanistan and Kuwait.
After 30-plus years in military service, the line
between Rigsby's civilian and military lives is
often fluid. High school students aren't the
only ones to see it; attorneys and former colleagues describe his "commanding" presence
and his desire for discipline.
Rigsby holds a unique place among D.C.
judges. This year marks his 10th anniversary
as both a Superior Court judge and his ninth
as a military judge in the U.S. Army Reserve's
150th Legal Support Organization Judge Advocate General Detachment. Since September 2010, Rigsby has served as his unit's commander, managing more than two dozen
Army Reserve military judges who preside
over courts-martial and investigations around
the world.
Getting started
Rigsby's legal career began with an arrest: He
and his brother were caught stealing candy
bars when he was 9 years old. He said his first
brush with the law sparked an interest in the
justice system, but there were no black lawyers to look up to in his hometown of
Vallejo, Calif.
Within three weeks of arriving at Fort Campbell in Kentucky, as a newly minted Army
JAG Corps officer in 1987, Rigsby said he
was trying his first case. He started his career
February 2012
MEMBERS IN THE NEWS
prosecuting low-level misdemeanors — shoplifting and
speeding tickets — but his work later included advising
combat commanders overseas and prosecuting serious
felonies.
Rigsby settled in Washington in 1991 after meeting his
wife, District of Columbia Court of Appeals Judge
Anna Blackburne-Rigsby, then an attorney at Hogan &
Hartson (now Hogan Lovells). He left active duty in
1992, but joined the Army Reserve as a senior lawyer
for a military police brigade in Gaithersburg, Md.
That same year, he joined the Office of Corporation
Counsel for the District of Columbia, now the Office
of the Attorney General. He served as the city's corporation counsel from 2000 until 2002, when he was
nominated to the Superior Court bench.
'No nonsense'
After joining Superior Court in 2002, Rigsby shifted his
Army Reserve service to the other side of the courtroom, becoming a military judge with the 150th detachment.
Until recently, Rigsby presided over the East of the
River Community Court, a program that assigned most
misdemeanor crimes from the historically high-crime
wards 7 and 8 to a single judge. Rollins said he and
Rigsby didn't always agree — Rigsby took a tougher
tack on treatment options for drug users than Rollins
wanted, for instance — but Rollins said he respected
his approach. "I think he got respect from the community…because he connected with people," Rollins said.
"He came from very humble beginnings and he tells
you of those humble beginnings."
Rigsby said he recognizes that his military background
can shape his approach to Superior Court cases. Enforcing discipline is especially important in the juvenile
division, he said, because "if I don't do that…then
we've lost them." He added later, "Is it militaristic?
Maybe. I don't run from that."
In 2009, Rigsby became the first sitting judge to take an
active duty, permanent deployment to a theater of war.
He lived in Kuwait for six months, traveling between
his home base and Iraq and Afghanistan to preside over
cases. Shortly after he came home from his 2009 deployment, Rigsby was suddenly struck with transverse
myelitis, a neurological disorder that left him paralyzed
for a month and a half. The cause is unknown, although
he said there was speculation that he may have contracted it overseas. He kept working as he went through
painful physical therapy. "Even walking to my courtroom took time," he said. "By the time I got there, I
was exhausted."
Drawdown concerns
Rigsby said he still struggles with residual pain, but was
back in fighting form by the time he took command of
his unit in September 2010.
Rigsby is unabashedly patriotic, often mentioning how
proud he is "of all our kids in uniform," but said he
does not treat soldiers on trial any differently from civilian defendants. He said his approach is the same in
both courts: "You treat everybody with dignity and respect."
As troops leave Iraq and Afghanistan, Rigsby said he's
not sure whether the drawdown will affect his unit, but
he expects there will be greater need for legal support
on the civil side, as new veterans try to understand their
rights and benefits. "A whole lot of lawyers need to get
up to speed," he said.
Maj. Gen. Clyde "Butch" Tate II, the deputy judge advocate general of the Army, agreed that there's no way
to predict what the drawdown might mean for the trial
judiciary in terms of caseload or deployment needs.
"We're all going to be faced with managing the change
the Army will be going through in the next four or five
years," he said.
"We're expecting all of the leaders to…get comfortable
with change," Tate said. "I don't worry about [Rigsby]
figuring it out. Otherwise, we wouldn't have put him in
the job."
February 2012
MEMBERS IN THE NEWS
Interviewed by RADM Donald V. Boecker
Retired Navy judge advocate authors
Unnatural Deaths, a crime novel set in Maine
Donald V. Boecker
(Rear Admiral, USN,
retired), a former
naval aviator,
served as a test
pilot, weapons
system project
officer, instructor
pilot, executive
officer, commanding officer of a VA85 attack squadron,
and commanding
officer of the USS
Concord (AFS 5). As
a flag officer, he
served as the Director, Navy Space
Systems Division,
Commander of the
Naval Air Test Center, and Vice Commander of Naval Air
Systems Command.
Bob Fuller, a retired JAGC captain, is the author of
Unnatural Deaths, a police procedure novel set in
Maine where Fuller practiced for over thirty-five years.
His fictional state police detective Martin Counihan is
a former master-at-arms who served aboard the USS
Forrestal (CV-59), a now-decommissioned aircraft
carrier once based at Mayport, Florida. Retired
RADM Donald Boecker interviewed CAPT Fuller
for The Judge Advocate.
What inspired you to write "Unnatural
Deaths"?
After leaving my law practice I found I had
time to write. Crime novels have always been
a particular passion. You've probably picked
up a crime novel to read on an airplane, as
have I. I thought I could write one as least as
good as some of those I've consumed. I also
wanted to draw on my experiences as a JAG
officer to include some Navy references.
Was the book based on any particular
Maine crime, or on any combination of
crimes that have occurred in the state in
the past?
No. The events and characters depicted in
Unnatural Deaths are wholly the product of my
imagination.
February 2012
I was intrigued to read about the cultural,
economic, and demographic observations
(i.e., the population loss in rural Maine
and loss of industrial jobs) included
within the story. Was that derived from
Maine's current situation?
To some extent. The loss of Maine's manufacturing base has been an ongoing economic
problem for some years.
As to the cultural perspective, Maine authors
have largely neglected to include FrancoAmerican characters and culture in their
works. This has been a source of mystery to
me as well as annoyance. Franco-Americans
make up over fifteen percent of Maine's
population. Their rise from a somewhat despised minority to full participation at the
highest level in Maine's businesses and professions is a little-told success story. Moreover, they have done so without abandoning
their language and culture. Maine's FrancoAmericans deserve as much attention by
Maine's writers as lobstermen and game wardens. I intended to make that happen in my
novel. The police chief and a trial lawyer are
featured Franco-American characters.
MEMBERS IN THE NEWS
What were some of the resources that proved most
helpful to you in your research?
Like Blanche DuBois in Tennessee Williams' play ―A
Streetcar Named Desire,‖ I was dependent on the kindness of strangers. Readers will readily recognize that
the members of law enforcement agencies, including
the Maine State Police and the FBI, were helpful. Some
of my more exotic helpmates included the President of
the Flint, Michigan Chamber of Commerce (Flint being
the twin city of Togliatti, the Russian automobile manufacturing city where some of my Russian characters
lived) and Vinny (last name omitted to protect the
guilty), a former inmate of the Bergen County (NJ) Jail.
"If you like the Godfather, Sopranos or any other organized
crime family story, you need
to read Unnatural Deaths.
Fuller has craftily woven several stories into one with pure
brilliance of creativity and his
knowledge of law."
Are you planning to write another book?
You can expect Maine State Police detective Martin
Counihan to re-appear in a year or so. I have a plot
outlined in my mind and once again I just have to find
the time to write. This time the story will be more of a
mystery than a police procedure novel and will take
place wholly within Maine. One of the reasons it took
so long to write Unnatural Deaths was the number of
international characters and locales. Making these authentic required an unbelievable amount of research.
Thank you, Google.
I found your Russian characters and their unusual
names somewhat hard to follow. I was constantly
flipping back and forth to keep them all straight in
my mind.
Understandable. I can only plead that Russian gangsters are today's emerging major criminal class, displacing the old Mafia types. Crime novel readers need to
hear more about them and their methods of operation.
They are computer-savvy, imaginative and utterly ruthless. Slavic villains and their names will soon become as
familiar to readers as they are now to urban police
forces.
— The Rumford Falls (Maine) Times
Did you ever get "writer's block" at any point,
where you just couldn't think of what to write?
Not very often. When I was constructing the ending, I
had some anxious moments in putting it all together.
My main problems were working out my time lines and
the flashbacks.
Unnatural Deaths is available at amazon.com
and other on-line book stores as well as at
local independent book stores.
February 2012
February 2012
PROFESSIONALISM
BG David P. Carey, USA (ret.)
From the UK to the USA: The American Inns of Court,
Professionalism, and the Rule of Law
David P. Carey
(Brigadier General,
USA, retired) served
as Executive Director of the American
Inns of Court from
2005-2010.
The following remarks were made by Brigadier General David P. Carey, then-Executive Director of the
American Inns of Court, to the Judge John M.
Manos AIC on October 19, 2009. For more information on the JAA Inn of Court please see the sidebar within this article.
J
ustice Sandra Day O‘Connor once observed, ―Professionalism entails obligations: obligations toward other attorneys,
obligations toward legal institutions, and
obligations to the members of the public
whose interests we serve.‖ Nevertheless, as
Justice O‘Connor continued, ―All too often,
lawyers seem today to believe that there is no
room for those who believe that practicing
law carries with it such responsibilities.‖ She
concluded that the American Inns of Court
―has a crucial role to play in eradicating such
views.‖
For nearly 29 years now, the American Inns
of Court has played a steadily evolving role in
reversing the decline of professionalism
within the bench and bar in the United States.
Together with other organizations that focus
on professionalism, the American Inns of
Court has made a difference, if for no other
reason than because it has generated much
needed discussion and debate on the subjects
of fostering civility, promoting professionalism, and improving legal skills. In fact, the
singular, nonpartisan mission of the American Inns of Court is to foster excellence in
professionalism, ethics, civility, and legal
skills. This article describes how the American Inns of Court operates, how it has grown
so quickly in number and popularity, and how
it might continue to improve the quality of
the legal practice throughout the United
States and, thus, shore up our notion of the
Rule of Law.
The Concept
The American Inns of Court is an association
of lawyers, judges and other legal professionals from all levels and backgrounds who share
a passion for professional excellence. It is not
a fraternal order, a social club, a course in
continuing legal education, a lecture series, an
apprenticeship system, or an adjunct of a law
school‘s program. While many of these concepts may be present to some degree, the
American Inns of Court is quite different in
aim, scope, and effect.
To help lawyers and judges rise to higher levels of excellence, professionalism, and ethical
awareness, the American Inns of Court
adopted the traditional English model of legal
apprenticeship and modified it to fit the particular needs of the American legal system.
Through the time-honored English tradition
February 2012
PROFESSIONALISM
and practice of ―pupillage‖—the sharing of wisdom, insight and experience
of seasoned judges and lawyers with
newer practitioners, American Inns of
Court helps lawyers to become more
effective advocates and counselors with
a keener ethical awareness. Of course,
while many Inns have adopted the
―pupilage‖ system, many Inns, such as
Judge John M. Manos Inn, have developed their own successful practice for
transmitting the values of the American
Inns of Court. Whatever the practice,
the Inns of Court has gained a national
and international reputation as an organization that bridges the gap between
formal law school education and legal
practice by offering career-long continuing education in the Common Law
tradition.
Membership is normally composed of
the following categories: Masters of the Bench—judges,
experienced lawyers, and law professors; Barristers—
lawyers with some experience who do not meet the
minimum requirements for Masters; Associates—
lawyers who do not meet the minimum requirement for
Barristers; and Pupils—law students. For some Inns,
such strict categorization does not work. Some Inns
have large ―Master‖ and ―Barrister‖ populations and
small ―associate‖ or even no ―pupil‖ members. The
basic building block of an American Inn of Court is the
―pupillage team,‖ consisting of a few members from
each membership category. Each pupillage team conducts one program for the Inn each year. Pupillage
team members may also meet informally outside of
monthly Inn meetings. Other Inns that do not follow
the pupilage system conduct meetings centered around
speakers, seminars, or other events that foster the free
exchange of information about ethics and legal skills.
Through regular meetings, members build and
strengthen professional relationships; discuss fundamental concerns about professionalism and pressing
February 2012
legal issues of the day; share experiences and advice;
exhort the utmost passion and dedication for the law;
provide mentoring opportunities; and advance the highest levels of integrity, ethics and civility. In this collegial
environment, outside the courtroom and pressure of
daily practice, members discuss legal practice, principles
and methods. Academicians, specialized practitioners
and complementing generalists provide a mix of skill,
theory, experience and passion. This fluid, side-by-side
approach allows seasoned judges and attorneys to help
shape students and newer lawyers with practical guidance in how to best serve the law and seek justice.
This grass roots movement has blossomed into a structure of more than 350 affiliated, yet autonomous Inns.
A large number of Inns concentrate on issues surrounding civil and criminal litigation practice, and include
attorneys from a number of specialties. However, there
are several Inns that specialize in criminal practice, federal litigation, tax law, administrative law, white-collar
crime, bankruptcy, intellectual property, family law, em(Continued on page 18)
PROFESSIONALISM
ployment and labor law, and even transactional law.
History of the American Inns of Court
In the 1960s, years before his appointment to the Supreme Court, Warren Burger envisioned an American
organization that would help lawyers improve their advocacy skills while emphasizing the importance of professional demeanor, integrity and ethics. He was no
stranger to the history, goals, operation and impact of
the English Inns of Court, and saw enormous benefits
to be realized by a similar close, ongoing linkage between members of the American judiciary, practitioners
and law students.
In 1977, now Chief Justice Warren Burger and other
American lawyers and judges spent two weeks in England as part the Anglo-American Exchange. The members of the program were particularly impressed with
the collegial approach of the English Inns of Court and
with the way in which they passed on to new lawyers
the decorum, civility, skills and professional standards
necessary for a cooperatively functioning bench and
bar.
Soon after his return to the United States, the Chief
Justice initiated a pilot program, an adaptation of the
English Inns system, but geared to the realities of law
practice in the United States. Working with Chief Justice Burger, former Solicitor General Rex Lee, and U.S.
District Judge A. Sherman Christensen founded the
first American Inn of Court in 1980. The Inn was affiliated with the J. Reuben Clark School of Law at Brigham Young University in Provo, Utah and consisted of
44 member judges, lawyers, professors and law students. Word of the new training model spread across
the country, and soon new Inns began to appear, and
the grassroots ―Inns of Court movement‖ began to
grow.
In 1985 the American Inns of Court Foundation was
chartered in Washington, D.C., as a non-profit, tax18 the judge advocate
exempt corporation. The Foundation would serve as
the hub for communications among the Inns, answer
inquiries from the growing number of judges, lawyers
and law professors, and provide the Inns with support,
services and programs that as small, local groups would
be beyond their individual reach.
The first Board of Trustees of the American Inns of
Court was comprised mainly of the progenitors of the
local Inns. That group gave great care to the growth
and direction of the Inns. High on the list of priorities
was adherence to the English Inns‘ successful model of
mentoring by experienced senior members, a focus on
training and development of practice skills for newer
lawyers, and of course, the amicable association among
all members, regardless of rank. This was the chord that
was destined to resonate throughout the American legal
community.
“American Inns of Court helps
lawyers to become more effective advocates and counselors with a keener ethical
awareness.”
As other legal associations concentrated on studying the
perceived problem and developing rules in an attempt
to combat the maladies of waning professional practice
standards, the American Inns of Court drew upon the
wisdom and experience of seasoned practitioners to
mentor, educate and inspire in its members the aspiration to a more craftsman-like application of the art and
practice of law in America. Keeping this focus, the
American Inns of Court soon earned a reputation as a
truly unique organization.
Recent History
As early as 1983, the American Inns of Court concept
was gaining widespread attention from many of the
nation‘s prominent legal institutions. An ad hoc com(Continued on page 19)
February 2012
PROFESSIONALISM
mittee, established by the Judicial Conference of the
United States to study the goals and methods of American Inns, concluded that ―the American Inns of Court
have demonstrated the potential for supplying a significant new dimension to legal training‖, and that ―the
official duties of judges are consistent with participation
in an American Inn of Court.‖ It was to be the first
formal recognition of the potential of the Inns of Court
movement.
In subsequent years, similar endorsements were passed
by such respected groups as the Conference of Chief
Justices, the Seventh Circuit‘s Committee on Civility
and the American Bar Association‘s Judicial Administration Division. In 1988, the American Inns of Court
received the ABA‘s prestigious E. Smythe Gambrell
Professionalism Award ―in recognition of outstanding
achievement in the design and implementation of a
model professionalism program.‖
Later that year, Chief Justice Burger and The Right
Honourable The Lord Bridge of Harwich signed a Declaration of Friendship, a historic document on both
sides of the Atlantic, fraternally linking the English and
American Inns of Court. This linkage was to be of considerable benefit to the American Inns of Court and its
members, by providing entrée for American Inn members visiting the London Inns, and helping to lay the
groundwork for the Pegasus Scholarships and the Temple Bar Scholarships. These educational programs allow
selected American lawyers to participate in valuable
work-study programs in the courts, chambers and Inns
of London, and allow English barristers to enjoy the
same benefits in the United States.
By 1990, 124 chapters were in operation nationwide,
actively involving some 8,000 judges, lawyers, professors and students of law in improving the professional
skills of the bench and bar through mentoring, discussion and educational programs. The unprecedented
growth evidenced not only the recognized need to raise
the standards of advocacy, but also the willingness of
the nation‘s professionals to participate in the process.
Holding true to its commitment to provide training for
aspiring lawyers, the American Inns of Court launched
the Law School Project in 1994 to add mentoring and
practical training of the Inns to the formal education
provided by the nation‘s law schools. When the Law
School Project ended on June 30, 1997, 114 law schools
had become affiliated with the American Inns of Court
program.
Beyond impressive numerical growth through the ‗90s
and into the next century, the American Inns of Court
experienced an increase in stature as a national organization. Highlighted by an increase in its international
exchange programs as well as programs and cooperative
projects with other local, regional and national organizations, the American Inns of Court secured its role as
a vital force in shaping a culture of excellence in the
practice of law.
The JAA Inn of Court
The Judge Advocates Association—through your
membership dues and support—sponsors the Judge
Advocates Association Inn of Court.
The Inn meets monthly from fall through spring in the
Washington, DC area. For over 18 years the JAA Inn
of Court has fulfilled the Inn’s mission statement to
promote legal excellence, civility, professionalism, and
ethics among members of the military and national
security law bar and bench.
This season’s remaining sessions will occur on 21
March and 18 April. Please mark your calendars and
plan to join us!
For more information or to be included on the JAA Inn
of Court mailing list, please contact the Inn president,
LTC James Guelcher, at
[email protected] or visit the Inn’s web
site at http://www.innsofcourt.org/Inns/jaainn/
And if you’re not in the National Capital Region, you
too will soon benefit from your Inn! We are exploring
ways to make the 2012-2013 season and beyond
available to our membership in a secure area of the
JAA web site. Stay tuned for more information!
February 2012
PROFESSIONALISM
Today
Today, with more than 350 active Inns and more than
100,000 active and alumni members nationwide, the
American Inns of Court is exploring exciting new and
innovative ways to improve the civility, ethics, skills and
professional dignity of the nation‘s bench and bar. Fueled by the passion and dedicated efforts of newer
members and tempered by the wisdom and experience
of its elders, the American Inns of Court continue to
provide a collegial forum for study, discussion, inspiration and training for a growing number of legal professionals.
Continuing to pursue a more active involvement with
the entire legal profession, the American Inns of Court
has greatly increased its cooperative involvement with
other legal organizations. Through local, regional and
national participation in various bar associations‘ meetings and events, valuable alliances have been forged to
the mutual benefit of the groups involved. Inns across
the nation have traditionally put forth special efforts
during the Law Day celebration spearheaded by the
American Bar Association.
In keeping with its mission to foster professional excellence through mentoring, a key component is recognizing those judges and lawyers whose professional lives
evidence civility, competence and ethical attitudes worthy of emulation. In addition to the prestigious A.
Sherman Christensen Award and Lewis F. Powell, Jr.
Award, and the Sandra Day O‘Connor Award presented annually at the Foundation‘s Celebration of Excellence at the United States Supreme Court, the American Inns of Court has been honored since 1996 to present Professionalism
Awards in each participating federal circuit as a part of
their annual judicial conferences. Also, the Warren E.
Burger Prize is presented annually to the winner of a
legal writing competition, designed to promote outstanding scholarship on the practical application of professionalism in the American legal community.
The Future
A nexus clearly exists between lawyer behavior and the
promotion and protection of the Rule of Law. Ethical
breaches, incivility, discourteous treatment, disrespect
toward judges, and failure to show concern for legal
institutions undermine our system of laws. When lawyers forget their obligations to make the system work,
the loser is the Rule of Law. Because of the relationship
between professionalism and the American system of
the Rule of Law, efforts of organizations like the
American Inns of Court take on a special urgency.
The American Inns of Court is committed to raise the
bar of professionalism in the United States because of a
strong belief that the Rule of Law depends upon an
honorable legal profession to guarantee respect for our
vital legal institutions. Professionalism, mentoring, and
ethical behavior are essential to maintaining the Rule of
Law because it is only through adherence to these high
ideals that the American public will rightly believe in the
importance of our commitment to justice. Society‘s
need for a credible system of justice and reliance upon
the Rule of Law are too important to neglect the need
to nurture professionalism among members of the profession charged with its protection and preservation.
While the reach of the American Inns of Court has expanded, the number of lawyers in the United States has
likewise expanded to nearly one million. Leaders of the
American Inns of Court movement firmly believe the
more lawyers are connected to the Inns movement, the
more effectively its mission and values will spread to
positively influence all members of the profession. The
resurgence of professionalism must be a nationwide
phenomenon. It is not enough that there are ―pockets
of professionalism‖ scattered throughout our national
legal landscape.
Growth of professionalism movements like the American Inns of Court is vital to the future of the legal profession. Restored professionalism must precede and
strengthen the practice of law. We reclaim our noble
profession with small, meaningful steps. If enough motivated lawyers band together to elevate the level of
professionalism in this country, those steps might well
beget giant strides. The Rule of Law itself may well depend upon our progress.
February 2012
2012 JUDICIAL CONFERENCE AND CONTINUING LEGAL EDUCATION PROGRAM
U.S. Court of Appeals for the Armed Forces
SCHEDULE OF EVENTS
Wednesday, March 7, 2012
7:30 a.m.
Registration
7:55 a.m.
Welcoming Remarks
Honorable James E. Baker
Chief Judge, U.S. Court of Appeals for the Armed Forces
8:00 a.m.
Bruce C. Swartz, Deputy Assistant Attorney General, Criminal Division,
U.S. Department of Justice
9:00 a.m.
Break
9:15 a.m.
Practical Experience in an Ad Hoc International Criminal Tribunal
Stephen M. Sayers, Partner, Hunton & Williams
10:15 a.m.
Break
10:30 a.m.
Inventing Democratic Courts
Professor Judith Resnik, Arthur Liman Professor of Law, Yale Law
School; and Professor Dennis E. Curtis, Clinical Professor Emeritus of
Law and Professorial Lecturer in Law, Yale Law School, co-authors of
Representing Justice: Invention, Controversy, and Rights in City-States
and Democratic Courtrooms (2011)
11:30 a.m.
Lunch
12:30 p.m.
Sentencing Issues and Elderly Prisoners
James Tierney, Director of the National State Attorneys General Program,
and Lecturer-in-Law, Columbia Law School
1:30 p.m.
Break
1:45 p.m.
The Stolen Valor Act - An Intellectual Property Analysis to Protect
Symbols of Gallantry
Professor Keith M. Harrison, University of New Hampshire, School of Law
2:45 p.m.
Break
3:00 p.m.
History on Trial: My Day in Court with a Holocaust Denier
Professor Deborah E. Lipstadt, Emory University Department of Religion,
Dorot Professor of Modern Jewish History and Holocaust Studies, author
of The Eichmann Trial, (2011)
4:30 p.m.
Adjourn/Evaluations
2012 JUDICIAL CONFERENCE AND CONTINUING LEGAL EDUCATION PROGRAM
U.S. Court of Appeals for the Armed Forces
Thursday, March 8, 2012
8:00 a.m.
Operation Tomodachi-Japan Tsunami Relief Operations
Captain Michael B. Shaw, JAGC, USNR
9:00 a.m.
Break
9:15 a.m.
Operation Tomodachi-Japan Tsunami Relief Operations (continued)
Captain Shaw
10:15 a.m.
Break
10:30 a.m.
Proportionality Review and the Military Death Penalty
Professor Catherine Grosso, Associate Professor of Law, Michigan State
University College of Law, co-author of Racial Discrimination in the
Administration of the Death Penalty: The Experience of the United States
Armed Forces (1984-2005), David C. Baldus, George Woodworth,
Catherine M. Grosso & Richard Newell. 101 J. Crim. L. & Criminology
(forthcoming Winter 2012)
12:00 p.m.
Lunch
1:00 p.m.
Ethics, Investigations and Accountability in a Combat Setting
Brigadier General Thomas Ayres, US Army, JAGC, Commander and
Commandant of The Judge Advocate General’s Legal Center and School
2:00 p.m.
Break
2:15 p.m.
Ethics (Continued)
Brigadier General Ayres
3:15 p.m.
Evaluations
3:30 p.m.
Adjourn
For additional information, contact Barbara Burley, Conference Administrator at (202)
761-5207;
FAX: (202) 761-7009 or e-mail: [email protected].
ADMINISTRATIVE LAW
Alan E. Goldsmith, Esq.
Officers with prior enlisted service and eligibility
for a board of inquiry
Alan E. Goldsmith
received his BA in
1973 from Kenyon
College and his JD in
1976 from Catholic
University Law
School. He served
on active duty as an
Air Force judge
advocate from 1979
to 1982, and from
1982 to 2007 was
Head of the Discharge Review
Section at the Board
for Correction of
Naval Records. He is
currently on the JAA
Board of Directors.
C
ertain officers and warrant officers1 in both the regular and reserve components facing administrative separation for cause
have the right to appear before a board of
inquiry (BOI).2 Although not every officer
and warrant officer is so entitled, some of the
individuals who are not eligible should be
afforded the opportunity for a BOI. These
individuals have relatively short periods of
service as officers or warrant officers, but
lengthy prior enlisted service. It would seem
that these individuals have fallen through the
cracks of the current system.
The right to a BOI is set forth in federal law3
and reflects congressional intent that some
officers and warrant officers subject to administrative separation receive a ―fair and
impartial hearing.‖4
The rights afforded to these BOI-eligible individuals are significant and include 30 days
prior notice of the allegations against them, a
reasonable time to prepare for the BOI, representation by appointed military counsel
and/or retained counsel, and full access to
relevant records. At the BOI, they may personally appear, present evidence, crossexamine witnesses and request the appearance of supporting witnesses.5 A BOI determination that a respondent should be retained is binding on the service, and such
February 2012
action closes the case.6 On the other hand, a
recommendation for separation is just that–
only a recommendation, which must be approved by the service secretary or a designee
before the officer is separated.7 An individual
discharged pursuant to the recommendation
of a BOI may receive an honorable, general,
or under other than honorable conditions
discharge. The service secretary or designee
may not, however, direct a characterization
worse than that recommended by the BOI.8
So, who is eligible for a BOI? Such eligibility
is triggered by one of two factors, the characterization of service that may be imposed, or
the individual‘s tenure as an officer or warrant officer. Every officer facing separation
with a discharge under other than honorable
conditions, the worst form of administrative
separation, is entitled to a BOI.9 Otherwise,
BOI eligibility depends on whether the officer is deemed to be probationary or nonprobationary. Congress has essentially stated
that a BOI is not required for regular warrant
officers with less than three years of service
as warrant officers, active duty list officers
with less than six years of active duty commissioned service, and reserve officers and
warrant officers with less than six years of
active status commissioned service or service
as warrant officers.10 Concerning the latter
two groups, although the Department of De(Continued on page 24)
ADMINISTRATIVE LAW
fense guidance hews to the six-year threshold for officers11, the individual services sometimes invoke more
liberal standards for determining whether both officers
and reserve warrant officers are non-probationary and
therefore BOI-eligible.12
Probationary officers and warrant officers, those who
fail to meet the tenure requirements of their respective
services, receive far fewer procedural protections than
the individuals entitled to a BOI. The rights of probationary officers extend only to written notice of the allegations, submission of a written rebuttal statement and
consultation with appointed military counsel or retained
counsel.13 The service secretary or designee may direct
retention or separation.14 If an officer or warrant officer
is discharged under this truncated procedure, characterization of service is limited to an honorable or general discharge.15
On the surface, the foregoing statutory and regulatory
scheme may seem basically fair. Those officers and
warrant officers with more lengthy service have more at
stake and are entitled to more procedural protection
before being separated. The services also have more at
stake since such experienced officers are more difficult
What about those service
members who undertake a
non-traditional path to the
officer ranks?
to replace and should not be discharged until the facts
and circumstances prompting the separation action are
thoroughly examined. This model works fine in the
case of an officer who takes what might be called a traditional path to obtaining his or her commission–
graduation from high school followed by completion of
a college education followed by commissioning. In the
first few years of service, unless the officer is facing
discharge under other than honorable conditions, such
an individual arguably has an insufficient stake in a military career to warrant the substantial procedural protections of a BOI.
But what about those service members who undertake a
somewhat non-traditional path to the officer ranks?
Such individuals, after graduating from high school, do
not immediately move on to college but instead enlist in
one of the services and complete at least one enlistment. They then leave the service to attend college or,
in some cases, complete their undergraduate degree
requirements while continuing their enlisted service.
After graduating from college, the individual is commissioned. A variation on this theme is virtually always
applicable for those individuals who become warrant
officers, since most of them come directly from the
enlisted ranks.16 The Navy‘s Limited Duty Officer program also fills its ranks with prior enlisted personnel.17
These officers and warrant officers with prior enlisted
service may be denied a BOI if recommended for separation because that service does not count towards the
tenure required for a BOI. As previously noted, such
seniority may only be attained by accumulating service
as an officer or warrant officer–enlisted service does
not count. But doesn‘t their enlisted service give them
more of a stake in continued service than the probationary officer with no such prior service? In this regard, it seems significant that during their enlisted
status, many of these individuals attain sufficient service
to meet the six-year tenure requirement for an administrative board, the enlisted equivalent of a BOI.18 Surely,
such individuals should not lose their ―board rights‖
simply because their exemplary enlisted service merits
selection as officers or warrant officers.
A relatively simple solution to this dilemma would be to
change the pertinent statutory provisions to state that
the threshold for BOI eligibility is determined by total
service and not just service as officers or warrant officers. Such a statutory modification would recognize the
value of prior enlisted service both to these individuals
and to the armed services. The change would make it
somewhat more difficult to separate those individuals
with prior enlisted service, but this inconvenience
would be more than outweighed by the enhanced degree of fairness in the system such a change would en(Continued on page 25)
February 2012
ADMINISTRATIVE LAW
separated for cause under other than honorable conditions under
the approved findings of a board of officers or if the reservist
waives such a board); DoDI 1332.30, encl. 3, ¶ 2b(4), encl. 6, ¶ 1b.
sure. In other words, no officer or warrant officer
would fall through the cracks with such a modification.
10. 10 U.S.C. § 1165 (2006) (regular warrant officers); 10 U.S.C. §
630(1)(A) (2006 & Supp. II 2008) (active duty list officers); 10
U.S.C. § 14503(a)(1) (2006 & Supp. II 2008)) (active status reserve
Endnotes
officers and warrant officers). But see 10 U.S.C. § 12683 (2006)
(with certain limited exceptions, reserve officer or warrant officer
1. The Army, Navy and Marine Corps utilize warrant officers, but
with more than five years of commissioned service is not subject to
the Air Force does not.
involuntary administrative separation without an approved recommendation from a board of officers).
2. Some statutes and regulations refer to a board of officers or administrative discharge board rather than a BOI, but there appear to
11. DoDI 1332.30, Glossary (―non-probationary commissioned
be no substantive differences in these terms. In this article, the term
officer,‖ ―probationary commissioned officer‖).
BOI refers to all three boards.
12. Army Regulation (AR) 600-8-24, ―Officer Transfers and Dis3. 10 U.S.C. § 1182 ( (2006) regular officers); 10 U.S.C. § 1166
charges,‖ Glossary, § 2 (―nonprobationary officer,‖ ―probationary
(2006) (regular warrant officers); 10 U.S.C . § 14903 (2006) (active
officer‖ (Apr. 12, 2006) (Rapid Action Revision [RAR] Sep. 13,
status reserve officers and warrant officers).
2011) (five years for active duty officers); AR 135-175, ―Separation
of Officers,‖ ¶¶ 2-3a, c(2), (3), 2-11n, 2-12 (Feb. 28, 1987) (RAR
Aug. 4, 2011) (all Army National Guard and reserve officers and
4. §§ 1182(b), 14903(b).
warrant officers are BOI-eligible unless they are processed under
5. 10 U.S.C. § 1185 (2006) (regular officers); 10 U.S.C. § 14904
two narrow exceptions with a three-year threshold); Secretary of the
(2006) (active status reserve officers and warrant officers); See also,
Navy Instruction (SECNAVINST) 1920.6C, ―Administrative Sepa-
e.g.,
(DoDI)
ration of Officers,‖ encl. (1), ¶¶ 12, 22, 23 & encl. (4), ¶¶ 4a(1), 4b,
1332.30,‖Separation of Regular and Reserve Commissioned Offi-
5a, 5c (Dec. 15, 2005) (CH-4, Sep. 20, 2011) (six years for regular
cers,‖ encl. 5, ¶ 4 (Dec. 11, 2008) (CH-2, Sep. 20, 2011). (all regular
and reserve officers, five years for reserve warrant officers); Air
and reserve officers, but not warrant officers) Although this direc-
Force Instruction (AFI) 36-3206, ―Administrative Discharge Proce-
tive does not apply to warrant officers, the services, in their own
dures for Commissioned Officers,‖ attach. 1 (―nonprobationary
regulations, grant the foregoing rights to warrant officers facing
officer,‖ ―probationary officer‖) (Jun. 9, 2004) (CH-6, Oct.18, 2011)
separation.
(five years for active duty officers); AFI 36-3209, ―Separation and
Department
of
Defense
Instruction
Retirement Procedures for Air National Guard and Air Force Re6. §§ 1182(d)(1), 14903(e)(1); See also, e.g., DoDI 1332.30, encl. 3, ¶
serve Members,‖ ¶¶ 4.11, 4.12.1.1, 4.12.1.3 (Apr. 14, 2005 (CH-3,
3d(1).
Sep. 20, 2011) (five years for reserve officers but all Air National
Guard officers are BOI eligible).
7. 10 U.S.C. § 1184 (2006) (regular officers), § 14903(c), (d); See
also, e.g., DoDI 1332.30, encl. 3, ¶ 3d(2).
13. See, e.g., DoDI 1332.30, encl. 6, ¶ 1a. Cases of probationary
officers in the Air Force and Air Force Reserve are submitted to
8. See, e.g., DoDI 1332.30, encl. 3, ¶ 4b. If an individual is sepa-
boards at Headquarters Air Force. AFI 36-3206, ¶ 6.1.2; AFI 36-
rated solely for unsatisfactory performance, and not for misconduct,
3209, ¶ 2-39.1. These boards may retain an officer or recommend
moral or professional dereliction, or national security, characteriza-
separation. AFI 36-3206, ¶ 6.6; AFI 36-3209 ¶ 2.39.5. However, an
tion of service must be honorable. 10 U.S.C. § 1186(b)(2)(A) (2006)
officer may not be represented by counsel or appear before these
(regular officers); 10 U.S.C. § 14905(b)(3)(A) (2006) (active status
boards unless the officer‘s testimony is necessary to evaluate the
reserve officers and warrant officers); See also, e.g., DoDI 1332.30,
case. AFI 36-3206, ¶ 6.4; AFI 36-3209, ¶ 2.39.3.
encl. 3, ¶ 4b(1).
14. See, e.g., DoDI 1332.30, encl. 6, ¶ 2a(2), (4).
9. 10 U.S.C. § 12685 (2006) (reservist may only be administratively
February 2012
ADMINISTRATIVE LAW
15. Id. ¶ 2a(2).
16. Navy and Marine warrant officers have lengthy periods of prior enlisted service. Chief of Naval Operations Instruction (OPNAVINST)
1420.1B, ―Enlisted to Officer Commissioning Programs Application Administration Manual,‖ encl. (1), ch. 7, ¶8a-b (Dec. 14, 2009);
SECNAVINST 1412.9B, ―Marine Corps Limited Duty and Warrant Officer Programs, Promotions and Continuation Procedures,‖ encl. (1),
¶¶4c-d, 19(a)(2), (4), encl. (2), ¶ 3c-d (Feb. 7, 2006). Army warrant officers come from the active and reserve components of all the armed
services, and civilians with prior relevant military experience. AR 135-100, ―Appointment of Commissioned and Warrant Officers of the
Army,‖ ¶ 3-28 (Sep. 1, 1994). Warrant officers called to active duty may not exceed 12 years of prior active service.. Id. ¶ 1-6a(2).
17. 10 U.S.C. §§5589 (2006) (permanent regular LDO appointments); 10 U.S.C. § 5596 (2006) (temporary regular LDO and warrant officer
appointments). Navy LDO‘s must have lengthy prior enlisted service. OPNAVINST 1420.1B, encl. (1), ch. 7, ¶¶ 7a, c. Marine LDO‘s are
former warrant officers. SECNAVINST 1412.9B, encl. (3), ¶ 4b.
18. See, e.g., DoDI 1332.14, ―Enlisted Administrative Separations,‖ encl. 5, ¶ 2a(7) (Aug. 28, 2008) (Incorporating CH-3, Sep. 30, 2011) (even
if not normally eligible, enlisted member with six or more years of active and reserve service is entitled to an administrative board).
Life Members
Jason Groves
Cynthia Norwood
Lisa Turner
Senior Members
(4+ years of service)
David Bolgiano
Sean Gleason
John Henderson
Eric Montalvo
Rick Morris
Ralph Olson
Robert Rideout, Jr.
Richard Roth
Lynn Schmidt
Stephen Sikes
William Ward III
Roger Welsh
Alexander Whitaker IV
Junior Members
(<4 years of service)
Nicholas Larson
Timothy Reilly
Jacobus Vollebregt
Law Student Members
Sean Bigley
Lindsay McCarl
Associate Members
Shane Riley
For membership information or to join, please visit
http://www.jaa.org/join
February 2012
NEW DEVELOPMENTS
Wojciech Z. Kornacki, Esq.
2012 NDAA amends the UCMJ, makes important changes to military
personnel law, and invites greater contingency contracting scrutiny
A
Wojciech Z. Kornacki received his
BA in 2001 from
Pace University, his
JD in 2004 from City
University of New
York School of Law,
completed JAOBC in
2005, and his MSt in
2011 from University of Oxford. He
served on active
duty as a U.S. Army
judge advocate
from 2005 to 2010.
In 2011, he joined
the Federal Practice
Group LLP, practicing in the area of
military and procurement law. You
may reach him at
wkornacki
@fedpractice.com.
rticle 1, Section 8 of the United
States Constitution, states that
the Congress shall have the
power to provide for ‗the common
defense‘ and to ‗raise Armies‘ and ‗maintain a
navy.‘1 The Congress accomplishes most of
its work in this area by passing a National
Defense Authorization Act for each fiscal
year. The National Defense Authorization
Act for Fiscal Year 20122 offers many important developments for judge advocates and
military law practitioners. The act, which
became law on December 31, 2011, focuses
on force reduction and other than lethal responses to the evolving threat of terrorism.
This article focuses on 3 key areas important
to military lawyers 1) military justice, 2) military personnel law, and 3) contingency operations contracting.
Military Justice
The National Defense Authorization Act,
through section 541, amends various portions
of the Uniform Code of Military Justice3, focusing on Article 120(a), UCMJ, Rape. Previously, the National Defense Authorization
Act for Fiscal Year 2006 consolidated most
of the sexual offenses into one statute, Article
120, UCMJ, and it required the defense to
prove lack of consent by a preponderance of
evidence.
This resulted in vigorous constitutional challenges to various portions of Article 120,
UCMJ, including the burden shifting and instructions. For example, in United States v.
Prather4 and United States v. Medina5, the
United States Court of Appeals for the
Armed Forces (CAAF) reviewed the constitutionality of the burden shifting mechanism
under Article 120, UCMJ and its accompanying instructions, where the accused was required to ‗prove the affirmative defense of consent by
a preponderance of the evidence.‘ In Prather, the
Court concluded that such scheme was unconstitutional because the article shifted the
burden to the defense to disprove an essential
element of the offense. Prather at 343. In
Medina, the judge employed his own instructions to address the burden shifting scheme,
presumably to circumvent the unconstitutional part of the article, which CAAF found
was an error, but not prejudicial to the accused, where the defense agreed to it. Medina
at 471.
First, Section 541 of the National Defense
Authorization Act for Fiscal Year 2012 makes
significant changes to the affirmative defenses under Article 120, UCMJ. It repeals
subsections (r) and (s). Subsection (r) referred to Consent and Mistake of Fact as to Consent, and subsection (s) to Other Affirmative
Defenses. Instead, new subsection (f) states
February 2012
NEW DEVELOPMENTS
that an accused may raise any applicable defenses available under ‗this chapter or the Rules for Court-Martial.‘ Under subsection (t)(16), the accused is still required to
provide affirmative defenses by a preponderance of
evidence.
Section 541 also expands one of the definitions of rape.
Article 120(a)(2), UCMJ, states: ‗Any person subject to this
chapter who causes another person of any age to engage in a sexual act by causing grievous bodily harm to any person‘ is guilty
of rape. Section 541 changes the language to ‗Any person subject to this chapter who commits a sexual act upon another
person by using force causing or likely to cause death or grievous
bodily harm to any person.‘ The change lowers the evidentiary burden on the prosecution by not requiring it to
show the actual grievous bodily harm. Another change
is in Article 120(a)(1), UCMJ, which states that a person
is guilty of rape if the person is ‗using force against that
other person.‘ Section 541 amends this by adding
‗unlawful‘ in front of ‗force‘. Section (a)(4) which states
that a person is guilty of rape by ‗rendering another person
unconscious‘ is amended by adding ‗first‘ in front of
‗rendering’.
In addition, Article 120b, UCMJ, subsections (b), (d),
(f), (g), (i), (j) and (o) are repealed. Section 541 makes
numerous changes to Sexual Assault and Aggravated Sexual Contact crimes as well. Section 586 requires the Secretary of Defense to develop a comprehensive policy on
preserving evidence and developing policies and procedures for sexual assault cases.
Section 542 amends Article 47, UCMJ, Refusal to Appear
or Testify. Section 542 states that persons, not subject to
the Uniform Code of Military Justice, who fail to appear for Article 32(b) hearings after they have been issued a subpoena duces tecum will be guilty of an offense
against the United States. This amendment seeks to
address an on-going challenge of producing civilian
witnesses during Article 32(b) hearings. This amendment could prove to be a powerful weapon for both
prosecution and defense.
Section 542 also no longer requires the Government to
“Section 586 requires the Secretary of Defense to develop a
comprehensive policy on preserving evidence and developing policies and procedures
for sexual assault cases.”
pay for transportation fees and mileage before a witness
is required to be physically present during judicial proceedings. Instead, the Government is only required to
provide ‗a means for reimbursement from the Government…‘
This amendment separates court proceedings and financial expenses of witnesses. Court proceedings will no
longer be delayed by a witness who failed to appear
because he or she did not receive a payment.
Military Personnel Law
The act makes a number of important changes to the
current military personnel law. The changes are designed to provide incentives for Servicemembers to
leave active duty, thus contributing to the overall force
reduction. Section 525 expands early discharge for Servicemembers from 3 months to a year. This will allow
commanders to separate Servicemembers who have up
to one year left before the expiration of their term of
enlistment. Section 526 extends voluntary separation
pay and benefits to Servicemembers meeting the criteria
of 10 U.S.C. § 1175A from 31 December 2012 to December 31, 2018. This section covers voluntary separation as prescribed by regulations of the Secretary of
Defense. Section 504 offers voluntary retirement incentive to 675 officers from each Service. This section
is aimed at encouraging retirement among officers who
have been on active duty for over 20 years but less than
29 years. Section 529 expands separation counseling
services for Servicemembers and their spouses to include financial planning, a transition plan, housing assistance and other matters.
Section 558 requires the Secretary of Defense to initiate
a pilot program to determine whether Servicemembers
should be allowed to obtain civilian credentialing or
February 2012
NEW DEVELOPMENTS
posed maritime contract. It states that the U.S. District
Courts shall have no jurisdiction over such matters.
Staff Sgt. Ryan Burk verifies a specification of a contracting job while Staff Sgt. Doug Keeler reviews the
specifications and drawings of a new bus stop at an air base in Southwest Asia. Both are contracting
officers assigned to the 379th Expeditionary Contracting Squadron. Sergeant Burk, a native of FuquayVarina, N.C., deployed from Pope Air Force Base, N.C. Sergeant Keeler, a native of Albany, N.Y., deployed
from Little Rock AFB, Ark. (U.S. Air Force photo/Staff Sgt. Darnell T. Cannady)
licensing certificates required for military occupational
specialties (MOS). This section is designed to reduce
the costs of training Servicemembers by the military
and instead to rely on civilian academic institutions.
Finally, section 595 of the National Defense Authorization Act for Fiscal Year 2012 requires the Comptroller
General to access the necessity of the Selective Service
System, and to develop alternatives.
Contingency Operations Contracting
Contingency operations contracting continues to receive Congressional scrutiny. Section 805 requires the
Defense Contract Audit Agency to prepare an annual
report listing abuses, problems, and deficiencies encountered during the conduct of contractor audits.
Section 861 clarifies jurisdiction of the U.S Court of
Federal Claims under the current law6 for matters arising out of maritime contracts or solicitations for a proFebruary 2012
Section 841 directs the Secretary
of Defense to revise the DoD
Supplement to the Federal Acquisition Regulation to terminate all
current contracts in excess of
$100,000.00 and restrict the award
of future contracts, grants, and
agreements that the head of the
contracting authority determines
in writing would provide funding
directly or indirectly to insurgency.
The authority to restrict, terminate, or void contracts shall cease
to be effective on 31 December
2014. This may lead to future
litigation depending on procedural
protections afforded to contractors who are restricted from contracting with the U.S. Government.
The National Defense Authorization Act for Fiscal
Year 2012 makes numerous other changes to the legal
landscape in which judge advocates and military practitioners operate, including detainee prosecutions, political contributions by contractors, and others. This article highlights some of the key changes in the three areas
which are relevant for judge advocates and military
practitioners. The changes to the Article 120, UCMJ,
will affect the military justice system for years to come.
New amendments focused on voluntary separation incentives will continue to impact our military force.
Contingency operations contracting will continue to
experience greater Congressional scrutiny. You are encouraged to review the National Defense Authorization
Act for Fiscal Year 2012 for details.
Endnotes
1. U.S. CONST. art. 1, § 8, cl. 1.
2. H.R. Res. 1540, 112th Cong. (2011) (enacted)
3. 10 U.S.C. ch 47.
4. United States v. Prather 69 M.J. 338 (2010)
5. United States v. Medina, 69 M.J. 462 (2010)
6. 28 U.S.C. § 1491
ARMY UPDATE
LTC Jack Ohlweiler, USA
Second Army JAG regimental print embodies
advice, action, and temperance
Jack Ohlweiler
(Lieutenant Colonel,
USA) is the President, Legal Center &
School Alumni Association.
O
n May 27, 1863, President
Abraham Lincoln sent a letter
to Union General John M.
Schofield with the following
instructions: ―Let your military measures be
strong enough to repel the invader and keep
the peace, and not so strong as to unnecessarily harass and persecute the people.‖
This message came one month after Lincoln
had established the Lieber Code, which was
the first formal codification of behavior for
the Army of the United States of America.
That directive, formally titled Instructions for the
Government of Armies of the United States in the
Field, General Order № 100, outlined the Federal army code of conduct during war. It
would later become the basis for other international treaties regulating the laws of armed
conflict, including the Hague Conventions in
1907.
The origin of this General Order dates to
1862, when MG Henry Halleck, General in
Chief of the Army, asked Dr. Francis Lieber
of Columbia College to draft rules of warfare
to guide the actions of the Union Army in the
field. Professor Lieber worked with four Union officers, two of whom were lawyers, to
write the code. It was then presented to a
board of Union Generals for review, and ultimately to the President himself. Lincoln was
pleased with Lieber‘s proposal, and consid-
ered an official code of conduct to be an absolute necessity to maintain order and a sense
of decency among the ranks. On April 24,
1863, the President gathered together his entire cabinet at the White House where he formally presented and signed the Lieber Code.
This forever changed not only how the
American military behaved, but how militaries around the world would behave for generations to come.
The Association of Alumni of The Judge Advocate General‘s Legal Center and School
(―LCS Alumni Association‖) selected this
famous scene to be the subject of the Second
Judge Advocate General‘s Regimental Print in
recognition of the 150th anniversary of the
start of the Civil War and the impact of General Orders No. 100 on the law of armed
conflict. The LCS Alumni Association ultimately identified renowned military artist
Mort Künstler as the only painter who could
capture the essence of this pivotal moment in
JAG history. The scene Mr. Künstler created
is centered on President Lincoln conferring
with Brigadier General Joseph Holt, The
Judge Advocate General of the Army, and
Professor Lieber. Other distinguished members of Lincoln‘s Cabinet surround the three
men as they review this audaciously seminal
General Order.
February 2012
ARMY UPDATE
The original Künstler painting was gifted to the LCS in October 2011 and now hangs in the lobby of the LCS in
Charlottesville, Virginia, next to the First JAG Regimental Print, Don Stivers‘s 1998 oil painting, ―You Sir, Are a
Spy!‖ depicting the cross-examination of British Major John André by Colonel John Lawrence, the Army‘s second
Judge Advocate General. These paintings are intended to remind students and visitors alike of the long and distinguished history of service that JAGs have rendered to the nation.
One thousand two hundred and fifty copies of the First Regimental Print were sold for $75 each; today, these prints
are sold on the secondary market for over $350 each. Two thousand copies of the Second Regimental Print were
originally available for purchase at the LCS Alumni Association webpage, www.tjaglcsalumni.org for $100 each.
Over half of these prints have already sold and the price is scheduled to rise to $150 in July, 2012. Proceeds from
these sales are used to support programs and activities which promote the professionalism, esprit de corps, and educational reputation of The Judge Advocate General‘s Legal Center and School and its alumni.
The LCS Alumni Association hopes that the Second JAG Regimental Print will remind all military attorneys who see
it that advice matters as much as action, that temperance should go hand in hand with military force, and that Judge
Advocates have proudly embodied these ideals throughout their storied history.
February 2012
U.S. Air Force photo

February 2012 the journal of the judge advocates association

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