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1446) as amended on 4 October 1961, authorizes a member to make an election for its benefits at any time before he has completed 18 years' service, or after the completion of 18 years' service provided it is made 3 years before the first day for which he will become entitled to retired or retainer pay. The Comptroller General in decision B-153503 of March 20, 1964, considered the situation of an Army enlisted member who made his election in 1959, before the 1961 amendment authorized an election after 18 years' service. The member had at the time completed 17 years, 9 months service for basic pay purposes, and it appeared that he had made a valid election under the existing requirements.

On 1 April 1961, however, the member reenlisted in the Army and at that time claimed additional service credit for basic pay purposes. This claim was allowed, and consequently increased his total service time for pay purposes as of the time he made his election to more than 18 years. The Comptroller ruled that the 1961 amendment to 10 USC 1431 does not apply retroactively. As a result the member had not complied with the terms of the statute as it was in force in 1959, and thus had not made a valid election under the plan. (Comp. Gen. decision B–153503 of 20 March 1964.)

against a former employer on account of a wrongful discharge, the ordinary measure of damages is found by deducting the net amount which the employee earned or might reasonably have earned in other employment of like nature, from what he would have received had there been no breach of contract. He found this principle applied in numerous Federal decisions and NLRB cases, all decided under statutes which, like the one authorizing the correction of military records to provide retroactive pay and allowances (10 USC 1552), do not specifically provide for a deduction of private interim earnings.

It was the Comptroller General's opinion that when Congress enacted the above statute it did not intend to place members or former members in a more advantageous position when their military records were corrected than members who remained in the service and received the same pay and allowances but no additional civilian earnings. “It is clear”, he continued, “that the purpose of a correction of records is to restore the member or former member to the same position that he would have had if he had not been separated from the military service." Thus he concluded that in cases in which retroactive payments of active duty pay and allowances become due as a result of correction board action, "appropriate steps" should be taken to deduct the earnings received by a member or former member of the uniformed services from private as well as Government civilian employment during the period covered by the military pay and allowances found payable to him. (Comp. Gen. decision B-152421 of 18 February 1964). PER DIEM ALLOWANCE—Temporary duty aboard foreign vessel

The Comptroller General, in decision B-153006 dated January 8, 1964, ruled upon the per diem entitlement of a Navy lieutenant ordered for two months to temporary duty aboard the French destroyer “Dupetit Thouars." His orders bore an endorsement stating that Government quarters and messing facilities were not available, although he was quartered aboard the ship with no charge, and ate at the ship's mess for a charge averaging $1 per meal. The officer was paid the per diem allowance, less deductions for meals and quarters. Paragraph 4250-8 of the Joint Travel Regulations provides that per diem is not payable for any period of temporary duty aboard a Government vessel, and paragraphs 1150 4 and 1150-5 establish deductions to be made from per diem when quarters or mess facilities are furnished without charge by a foreign government. The Comptroller General ruled that payment of per diem was initially proper, since “Government vessel” as used in paragraph 4250–8 must be taken to mean a United States Government vessel, and that deductions were properly made for the quarters furnished without charge, but that no deduction should have been made for meals since they were not furnished without charge. The officer was ordered reimbursed accordingly. (Comp. Gen. decision B-153006 of 8 January 1964.) CONTINGENCY OPTION ACT—Timo for Making Election—1961

Amendment Not Retroactive

The Contigency Option Act, 67 Stat. 501 (now Retired Serviceman's Family Protection Plan, 10 USC 1431

STATE OF THE LAW (Continued from page 291)

relied upon by the Government. .. that the delay was caused

by or with the consent of the accused.20 As to whom the accused can make his demand, the court stated in another case:

But we might suggest as a working rule for the services that we are inclined to take a broad view as to those to whom accused's request for a speedy trial may be directed. At the moment, we merely mention that the officer who at the time is working in a military justice capacity, such as, the accused's commanding officer, trial counsel, the law officer, convening authority or even the inspector general,81

The right that an accused has to a speedy trial must be distinguished from his right to a speedy appeal. When an accused contends he is the victim of oppressive, vexatious, and unreasonable appellate delays, he really asserts that he should be freed due to the Government's failure to prosecute in a timely manner. Unlike the inherent evils accompanying an unreasonable delay before a trial, the military appellate process does not present similar disadvantages. Thus, granting an accused this extraordinary relief only can be justified in instances where there has been flagrant disregard of his rights."

From the foregoing it will be observed that an unreasonable delay in the commencement of a trial might result in a denial of due process. In such cases not only is the accused injured, but also the government might be penalized in not being able to prosecute. In order for justice to prevail in the military service, every reasonable effort should be made to promptly bring those charged with offenses to trial. The Constitution and the Uniform Code of Military Justice require it. The conscience of a modern judicial state demands it. 30. United States v. Wilson, 10 USCMA 337, 341, 27 CMR 411

(1959). 31. Id at 398. 32. United States v. Richmond, 11 USCMA 142, 28 CMR 366 (1960).

JAG JOURNAL

296

U.S. GOVERNMENT PRINTING OFFICE.1964

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ILLY

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compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-85.

REAR ADMIRAL WILFRED A. HEARN, USN

Judge Advocate General of the Navy

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

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

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

REAR ADMIRAL ROBERT H. HARE, USN

Deputy and Assistant Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN

Editor

For sale by the Saperintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 (Monthly), Price 15 cents (single copy). Subscription price $1.25 per year;

50 cents additional for foreign mailing.

REAR ADMIRAL ROBERT H. HARE, U.S. NAVY Deputy and Assistant Judge Advocate General

versity of South Carolina and was awarded an LL.B. degree in 1935. Thereafter he practiced law in Saluda, S.C., serving at various times as County Attorney and as U.S. Commissioner for the Western District of South Carolina.

Admiral Hare was commissioned as a Lieutenant (ig) in the Naval Reserve in 1942, was called to active duty in October of that year and served during a large part of World War II in the Pacific with VP-71 and other aviation units. In 1944 he served as instructor in the PB4Y Line Maintenance School in Minneapolis and the following year was assigned as Contracting Officer for termination of Bureau of Aeronautics contracts in the Chicago area.

Admiral Hare transferred to the regular Navy in 1947 and was designated a Law Specialist. Since that time he has served as Legal Officer for the Bureau of Medicine and Surgery and for Commander Service Force, Pacific Fleet; in the Office of the Judge Advocate General; and as Special Legal Assistant to the Assistant Secretary of the Navy for Personnel and Reserve Forces. He completed the course in Naval Warfare at the Naval War College in 1960, after which he served as Legal Officer for Commander in Chief Atlantic and Commander in Chief, Atlantic Fleet.

He has been admitted to practice before the Supreme Court of South Carolina, the U.S. District Court for the Western District of South Carolina, the U.S. Court of Appeals for the Fourth Circuit, the Supreme Court of the United States, and the Court of Military Appeals. He is a member of the American Bar Association and the Federal Bar Association.

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Rear Admiral Robert H. Hare, U.S. Navy, assumed the office of Deputy and Assistant Judge Advocate General of the Navy on 4 May 1964. Prior to reporting for this duty he was assigned as District Legal Officer of the Sixth Naval District.

Born in Washington, D.C., Admiral Hare spent his early years in Saluda, S.C., and received his Bachelor of Arts degree from Newberry College in Newberry, S.C., in 1931. While employed by the Federal Bureau of Investigation he attended the Law School of Georgetown University. He completed his law training at the Uni

SPECIAL COURTS-MARTIAL

Three Common Errors and Their Effects

LT HUGH D. CAMPBELL, USNR*

I

IMPROVIENT PLEAS

HE UNIFORM CODE of Military Justice

provides in essence that counsel for Special Courts-Martial need not be legally trained counsel. The only restriction to this general rule occurs when the appointed trial counsel is a lawyer, in which instance defense counsel must have equivalent qualifications.?

Consequently, in a large percentage of the cases tried by Special Courts in the Navy, neither trial nor defense counsel nor the president of the court hearing the matter are legally trained. This procedure has been frequently and consistently criticized, but it has not been changed and, at least in the immediate future, does not seem destined to be changed. The Navy has, however, to an extent, improved upon the present system by processing an increasing number of existing and prospective lay counsel through a highly concentrated course in military justice at the Naval Justice School, Newport, Rhode Island. Although the Justice School's program falls far short of a complete legal education, it is quite definitely of significant value.

As long as court-martial proceedings are conducted by human beings and particularly vhen the participating personnel are nonawyers, errors will be committed. The purpose of this article is to emphasize three areas in court-martial proceedings where significant errors frequently occur. Where appropriate, uggestions will be given on how to avoid these errors and possible remedies after they occur. Although the article is primarily directed tovard special courts with non-lawyer personnel, t is generally applicable to all court-martial roceedings.

Perhaps the most damaging and the most difficult error to recognize is the improvident plea. This situation will arise only if the accused has entered a plea of guilty to one or more charges and specifications. An improvident plea is a guilty plea entered when the accused has been incorrectly or insufficiently advised of the legal consequences of his plea. A guilty plea also becomes improvident if at some time during the proceedings matter is brought to the attention of the court which either indicates the accused may have had a defense to one or more of the charges and specifications to which he has pleaded guilty, or is otherwise inconsistent with his plea.*

It is deemed beneficial for the purposes of this article to consider improvident pleas resulting from improperly or insufficiently advising the accused separately from those wherein the improvidence arises from inconsistent matter being introduced into the record.

In the latter situation, although matter inconsistent with the plea may technically appear at any time during the course of the trial, it most frequently occurs when the defense introduces matter in extenuation or mitigation.5 This is the area where both counsel and the president should be particularly alert for inconsistent statements. Since improvidence arises only in guilty plea cases, and since a plea of guilty authorizes conviction of the offense to which the plea relates without further proof, many times the only matter of an evidentiary nature introduced during the course of the trial comes subsequent to the findings.

There are numerous methods through which the inconsistent matter may be introduced. In the great majority of instances, however, the

* Lieutenant Hugh D. Campbell, USNR, is presently assigned as Appellate Government Counsel in the Office of the Judge Advocate General, West Coast. He received a BBA degree from MeMurry College, Abilene, Texas, in 1959, and the LL.B. degree from Southern Methodist University Law School in 1963. LT Campbell is a member of the Texas Bar Association and the American Bar Association. Other articles written by LT Campbell have appeared in the Southwestern Law Journal.

3. United States v. Henn, 13 USCMA 124, 32 CMR 124 (1962);

United States v. Zemartis, 10 USCMA 353, 27 CMR 427 (1959). 4. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959);

United States v. McCoy, 12 USCMA 68, 30 CMR 68 (1960). 5. United States v. Turner, 16 CMR 391 (1954); United States v.

Watson, 7 CMR 436 (1952); United States v. Branstetter, 1

USCMA 30, 1 CMR 30 (1951). 6. MCM, U.S., 1951, para, 70b.

. Art. 27, UCMJ. . Art. 27(c), UCMJ.

inconsistent matter is introduced by either the defense counsel in his argument on quantum of punishment' or by the accused when testifying under oath or making an unsworn statement.8 Therefore, when either the accused or his counsel is addressing the court, all officers of the court should carefully evaluate each statement since the Court of Military Appeals has held that where doubt exists concerning the propriety of the accused's plea, it is proper that the issue will be resolved in his favor.'

Thus far we have learned where to look for matter inconsistent with the plea and the channels through which it is usually introduced. How then may the inconsistent matter be identified? In order for the inconsistency to raise the issue of improvidence, it must do one of two things: it must either negate an essential element of an offense 10 or show an affirmative defense such as insanity 11 or impossibility 12 to commit an offense to which a guilty plea has been entered.13 Therefore, in order to recognize an inconsistency which may raise a question of improvidence, both counsel and the president must be completely familiar with the elements of every offense to which the accused has pleaded guilty, and any possible affirmative defenses to those offenses. In this connection it should be noted that negation of an element of an offense seems to occur most frequently in those offenses requiring a specific intent, such as larceny 14 or desertion.15

If the danger-signs outlined above are carefully observed and the suggested precautionary measures taken, many of the inconsistencies resulting in improvidence will be avoided. However, since many of the inconsistencies are the result of no more than inartful verbiage on the part of one of the participants, it is improbable that all inconsistencies can be prevented.

Even though the inconsistent matter is in7. United States v. Stewart, WC NCM 63 00951 (1963); United

States v. Dibbles, WC NCM 63 00756 (1963); United States v. Turner, 16 CMR 391 (1954); United States v. Watson, 7 CMR

436 (1952). 8. United States v. Branstetter, 1 USCMA 30, 1 CMR 30 (1951);

United States v. Mills, 17 CMR 480 (1954); United States v.

Long, 6 CMR 194 (1952). 9. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959). 10. United States v. Watson, 7 CMR 436 (1952). 11. United States v. Haas, 22 CMR 868 (1956). 12. United States v. Mills, 17 CMR 480 (1954). 13. However, it should be noted that a possible defense may be

waived if the accused and defense counsel are fully aware of the possible defense and its legal ramifications, and thereafter the accused in accordance with a negotiated plea voluntarily enters a plea of guilty. United States v. Watkins, 11 USCMA

611, 29 CMR 427 (1960). 14. United States v. Dibbles, WC NCM 63 00756 (1963); United States

v. Stewart, 12 USCMA 552, 31 CMR 138 (1961). 15. United States v. Fernengel, 11 USCMA 535, 29 CMR 351 (1960).

advertently presented to the court, careful observation of the aforementioned principles should result in an immediate detection. Once the inconsistent matter is detected, it should immediately be brought to the attention of the president of the court. The president should then make an appropriate explanation to the accused and ascertain the full meaning of the inconsistent statement. In many instances it will be revealed from the clarification that the ostensible meaning of the statement was not that intended, and therefore no question of improvidence is presented. In these situations the accused's plea of guilty should be allowed to stand, and the trial may proceed as if the apparent inconsistency had not appeared.

On the other hand, an explanation of the inconsistency may show that for one reason or another, the accused's plea actually was entered improvidently. Normally the defect may be cured by allowing the accused to voluntarily withdraw his guilty plea; or, if he refuses, the court should reject his plea and proceed to trial and judgment as if he had pleaded not guilty.de However, in some instances allowing the accused to change his plea or the court rejecting his plea may not keep the proceedings free from substantial doubt as to legality, fairness or impartiality in which case the president in his discretion should declare a mistrial.17

As mentioned previously, the other general class of improvident pleas results from the accused being incorrectly or insufficiently advised of the legal consequences of his plea. The phase of trial in which this type of improvidence normally occurs is the arraignment of the accused, The president's instructions and explanation to the accused during arraignment should be carefully scrutinized by both counsel.

The Navy has recently published a trial guide 18 which, if carefully studied and followed by the president, will substantially reduce the number of improvident pleas entered as a result of erroneous arraignment instructions and explanations.

Although theoretically the possibilities of error in this area are innumerable, the majority of errors evolve from the presiding officer's attempts to inform the accused of the elements of the offense or offenses to which he is pleading guilty, and the maximum imposable punistment for the offenses with which he is charged

It is prejudicial error for the president ta fail to instruct as to the elements of any offense

16. MCM, para. 70b (4). 17. United States v. Walter, 14 USCMA 142, 33 CMR 354 (1963) 18. NavPers 10096 (1962).

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