its opinion in Grcich that such a recommendation is equivalent to disapproval.49

While a recommendation for an administrative discharge is distinctly dif ferent from a recommendation for the suspension of a punitive discharge, it is not legally inconsistent with the imposition of a punitive discharge. The court in Grcich recognized this by implication, stating only that it was "tanta. mount" to a recommendation for disapproval. Because of this characterization, the clemency instruction treats the recommendation for an administrative discharge as equivalent to a recommendation for disapproval and, therefore, as inherently inconsistent with the simultaneous imposition of a bad conduct discharge. This treatment of the recommendation for the substitution of an administrative discharge for a punitive one creates unique problems when attempting to instruct court members on the conditions under which such a recommendation will not be considered "inherently inconsistent"--because invariably such recommendations are based on the evidence presented during extenuation and mitigation and or the arguments of counsel. Therefore, any such recommendation would have to be based on the same matters as the sentence."

50

Under the Kaylor rationale, a recommendation for an administrative discharge is not "inherently inconsistent" with an adjudged punitive discharge. The recommendation of the court in Kaylor (i.e., total and unqualified remission of the BCD) was inconsistent because the court members could have accomplished what they recommended by simply not adjudging the discharge. A court-martial, however, does not have the power to separate an accused administratively. Therefore, a court-martial's recommendation for

51

49. In the opinion of the author, this portion of the Turner decision was unnecessary dicta. If Turner is viewed within the perspective of the analysis under Part II, supra, it appears that the court found that the record in Turner did not reflect that the members were confused concerning their sentencing rights, duties, and powers. The facts in Turner, therefore, were not so strikingly unusual or extraordinary as to require the military judge to give a detailed clemency instruction. Absent the presence of circumstances requiring a clemency instruction, the giving of an instruction which erroneously advised the members that they could not make a recommendation for "some type of board action" would seem to be harmless error from which no prejudice could result.

50. It should be noted that, on appeal, Keith argued that the court-martial should have been instructed that it could recommend an administrative discharge if it did not adjudge a punitive one. (See Brief on Behalf of Appellant, p. 13). Although the U.S. Court of Military Appeals did not address itself to that issue, the Army Court of Military Review has already stated that a military judge can make such a recommendation if he does not adjudge a punitive discharge. See United States v. Goguen, supra note 44 at 814.

51. United States v. Phipps, 12 USCMA 14, 30 CMR 14 (1960).

an administrative discharge is not "inherently inconsistent" with its own sentencing powers.52

Since the recommendation for an administrative separation is not legally inconsistent with the court-martial's sentencing powers, it would appear that the reason the court believed the situation in Grcich and Pope to be "tantamount" to that in Kaylor stemmed not from a legal inconsistency but instead from the court's concern that, even though the court-martial was of the opinion that the accused should be separated, it may not have been convinced that his offenses warranted punitive separation. Such a fear could be resolved by modifying the clemency instruction so as to treat the recommendation for an administrative discharge as a type of clemency recommendation similar to a recommendation for suspension. Suspension as a form of clemency looks to the ultimate retention of the accused in the service after a probationary period. To the extent that it allows an accused's retention in the service, its ultimate effect was within the authority of the sentencing body which need not have imposed a discharge at all. On the contrary, a recommendation for an administrative discharge looks to the ultimate separation of an accused from the service-but with a less opprobrious stigma regarding the individual's military service than the court members have authority to grant.53 Thus, once the court members have determined that a punitive discharge is appropriate for an accused and his offenses, their recommendation that the severity of that discharge be lessened is a purer form of clemency than a recommendation for its suspension. It is submitted, therefore, that the recommendation for an administrative discharge is more closely akin to a court's prerogative, as a matter of clemency, to make an unconditional recommendation for suspension of a punitive discharge than to a conditional recommendation for disapproval of a punitive discharge. Hence, the Kaylor rule, as extended in Grcich, Turner, and Pope to cases involving recommendations for administrative discharges, should not control the effect of a recommendation for an administrative discharge made by a courtmartial which was clearly advised that such was not binding on the convening or higher authority.

It is the view of the author that the clemency instruction should be modified to advise the court members that a recommendation for an administrative discharge is not binding on the convening authority and, therefore, the

52. Dissenting to the court's opinion in Grcich, Judge Latimer stated: “[J]ust as with a suspension, as distinguished from outright and unqualified remission, a court-martial is without power to accomplish a hardship discharge, for an administrative separation is a type beyond its authority to impose as punishment. . . . [A]fter having imposed a sentence it believes appropriate, [the court-martial] has sought to 'temper justice with mercy' by recommending a form of clemency it is without authority to grant. United States v. Grcich, supra note 25, at 498, 28 CMR at 64. Cf. United States v. Langford, 6 USCMA 371, 378, 20 CMR 87, 94 (1955), for a definition of clemency." It should also be noted that no type of clemency instruction was given in either Grcich or Pope.

53. Cf. United States v. Langford, supra note 52.

members should not adjudge a punitive discharge and recommend substitution of a nonpunitive administrative discharge unless they are convinced that the punitive discharge is appropriate. This would provide the court members with a much wider latitude in considering the options available to them in their deliberations on sentence. Indeed, such an instruction could subsume the advice requested by Keith on appeal.54 The clemency instruction's present view, that a recommendation for administrative separation constitutes an inconsistent recommendation for disapproval of a contemporaneously awarded punitive discharge, results in a severe limitation on the members' power to make such a recommendation which is legally consistent with their sentence.

More frequent utilization of such a modified clemency instruction would have two other beneficial results. First, it would effectively prevent the members from making a recommendation for disapproval-which is "inherently inconsistent" with the adjudged sentence.55 Second, it would guarantee to the appellate reviewing authorities that a recommendation for suspension of a punitive discharge or for substitution of a nonpunitive form of administra. tive discharge was made with a full understanding by the court-martial of its sentencing duty, viz; to adjudge a sentence it believes appropriate without reliance on the possible mitigating action of higher authority.

54. See footnote 50, supra. The inherent danger in instructing a court-martial that it may recommend an administrative discharge even if it does not impose a punitive discharge rests in its tendency to encourage a defense counsel to turn the sentencing proceedings at a court-martial into an administrative discharge hearing, a function for which the court-martial is not equipped.

55. If an "inherently inconsistent" sentence is announced after the court-martial has been so instructed on the conditions under which a recommendation may be made without rendering the sentence inconsistent as a matter of law, the military judge should consider whether or not a mistrial is necessary. See MCM 1969 (Rev.), paragraphs 56 (e) and 76(b).

BOOK REVIEWS

NINETEEN STARS-A STUDY IN MILITARY CHARACTER AND
LEADERSHIP

By Edgar F. Puryear, Jr.

Washington. Coiner Publications, Ltd. 1971. Pp. XVIII, 437.
$10.00

Lieutenant Commander Vincent S. Averna, JAGC, USN*

NINETEEN STARS, by Edgar F. Puryear, Jr.,' is an analysis of those elements considered essential to the make up of military leadership. The author attempts to categorize the careers of four military officers who are generally recognized to have been truly outstanding leaders: General of the Army George C. Marshall, General of the Army Douglas MacArthur, General of the Army Dwight D. Eisenhower, and General George S. Patton, Jr. All four men are viewed together in Chapter One, "The Early Years." The time at West Point for Eisenhower, MacArthur, and Patton, and at Virginia Military Institute for Marshall, is presented as the cornerstone for their subsequent character-building years. Professor Puryear's view throughout his book, however, is less than objective. His view is typified in the ini tial chapter by a subjective description of Eisenhower's relatively average performance at the Point. He emphasizes that Cadet Eisenhower's failure to achieve student-officer rank at West Point was due simply to his lack of interest for purely military activities in which he made little effort to excel. (In fact, Ike's frame of mind was such that he almost resigned several times following the knee injury which ended his football playing days.) This was hardly the attitude held by MacArthur or Patton, whose records at the Point were outstanding. Eisenhower's cadet days are typified by his role as cheerleader at the Point, while each of the other subjects has his formative military years highlighted in ways which later came to be identified as typical for that individual. In retrospect, one can readily look at many incidents which occurred during Eisenhower's cadet years that could be aligned with his obvious success in the years that followed. Perhaps forced parallels would not be needed if the author did not feel compelled to reach for an analysis that depended on lifelong, fundamental character traits. Rather, it would be equally as acceptable if Eisenhower's cadet years were viewed in the light of a young man who had not yet settled into his particular mode of life.

*Lieutenant Commander Averna is currently assigned as a trial attorney in the Admiralty and Shipping Section, U.S. Department of Justice. He received the J.D. degree from Temple University School of Law in 1970.

1. Edgar F. Puryear, Jr., combines practicing law in Madison, Virginia, with teaching international relations, economics, and business law at the University of Virginia. In addition, Professor Puryear serves as Civilian Attorney Adviser to the Army Judge Advocate General's School in Charlottesville, Virginia.

Patton and Marshall performed at their respective schools in much the same manner that the author believed they should have, if his theory of leadership is to be borne out at all. Their performance during these cadet days could be considered as mirror images of the remarkable reputations they achieved in the following years of Army service. Yet, despite Cadet Patton's unquestionable drive, determination and dedication to becoming an outstanding soldier while still at West Point, he failed his initial plebe year. Professor Puryear utilizes Patton's decision to repeat the plebe year, with all its associated hell, as only more evidence of the fledging soldier's guts and perseverance. The reader may legitimately speculate as to Cadet Patton's maturity and judgment when, after being counseled to spend more time on math and less on drill regs, he nonetheless persisted in mastering drill regs, finishing second in his class in this area, and thereby failing math, for which he was turned back. The author explains that drill regs were considered supremely important by Patton because performance in this subject had a direct correlation in the selection of cadets for higher rank. Again, the obvious deficiency in this type of thinking is not brought out by the author, for it hardly serves the purpose of "The Early Years" chapter.

General Marshall, perhaps more so than any one of the others, most closely portrays the model sought by Professor Puryear. As a cadet at Virginia Military Institute, he exemplified all the qualities described by the author, achieving the highest rank in each of his last three years, and culminating in being selected as First Captain of Cadets. The author's focus on an example of Cadet Marshall's courage and fortitude in the face of adversity is quite appropriate. During a hazing session as a "rat" at VMI (an affectionate term for those in their first year), Cadet Marshall, while still recovering from a bout of the flu, was unable to maintain his squatting position over the point of a bayonet and injured himself as he fell backward. No one in authority was ever told about this incident, and the only notation in Marshall's cadet record is a three-day excuse from classes while in sickbay. The author presents this episode as another of the building blocks of character, with the young man's determination seen as the overall product— rather than viewing determination as the mortar which cemented these blocks together. Undoubtedly, the incident and its aftermath are remarkable; however, the reviewer believes that any determined young man in a similar test of courage would probably react in the same stoic manner-regardless of whether or not he was attending a military prep school. Nevertheless, the enormous impact of the years at VMI upon General Marshall was acknowledged by his belief that the institution not only provided him with a standard for his daily conduct among men, but also embued him with a military heritage of honor and self-sacrifice. Obviously, Professor Puryear's viewpoint is in complete agreement.