DATE DOWNLOADED: Mon Apr 18 10:28:40 2022

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Joseph B. Kelly, Uniform Code and the Evolution of Military Law, 22 U. CIN. L. REV.
343 (1953).

ALWD 7th ed.

Joseph B. Kelly, Uniform Code and the Evolution of Military Law, 22 U. Cin. L. Rev.
343 (1953).

APA 7th ed.

Kelly, J. B. (1953). Uniform code and the evolution of military law. University of
Cincinnati Law Review, 22(3), 343-370.

Chicago 17th ed.

Joseph B. Kelly, "Uniform Code and the Evolution of Military Law," University of
Cincinnati Law Review 22, no. 3 (May 1953): 343-370

McGill Guide 9th ed.

Joseph B. Kelly, "Uniform Code and the Evolution of Military Law" (1953) 22:3 U Cin L
Rev 343.

AGLC 4th ed.

Joseph B. Kelly, 'Uniform Code and the Evolution of Military Law' (1953) 22(3)
University of Cincinnati Law Review 343

MLA 9th ed.

Kelly, Joseph B. "Uniform Code and the Evolution of Military Law." University of
Cincinnati Law Review, vol. 22, no. 3, May 1953, pp. 343-370. HeinOnline.

OSCOLA 4th ed.

Joseph B. Kelly, 'Uniform Code and the Evolution of Military Law' (1953) 22 U Cin L
Rev 343

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 UNIFORM CODE AND THE EVOLUTION OF
MILITARY LAW

JOSEPH B. KELLY
Captain, The Judge Advocate General's Corps
United States Army

INTRODUCTION

The purpose of this article is to give the civilian attorney

interested in military law an insight into the Uniform
Code of Military Justice in the light of its development
since the end of World War II. The Code has aroused
a great deal of interest in the legal profession.' Few
attorneys, however, in their civilian practice have any
actual contact with it. Still, to appreciate intelligently
the changes that have occurred and will continue to occur
as efforts are made to better the system, it is necessary
to know the law as it was and the reasons for its modifica-
tion. The changes effected by the Uniform Code of
Military Justice will be emphasized by comparing them
with the 1921 and 1949 provisions of the law as it per-
tained to the Army. The nature and place of the Court
of Military Appeals, the newest federal court, will then
be explained. The short historical sketch of the develop-
ment of the fundamentals of military justice is not
'Mullally, Military Justice: the Uniform Code in Action, 53 COL. L. Rav. 1
(1953); Cavanaugh, Uniform Code of Military Justice, 22 OKLA. BAR J. 806
(1951); Russell, Uniform Code of Military Justice, 19 Gao. WASH. L. RiV.
233 (1951); Langley, Military Justice and the Constitution-Improvements
Offered by New Uniform Code of Military Justice, 29 TEx. L. Rev. 651 (1951);
Dixon and Zodrik, Military Justice-a Uniformed Code for the Armed Services,
2 WESTURN RES. L. Rzv. 147 (1950); Snedeker, Uniform Code of Military
Justice, 38 Guo. L. J. 521 (1950); Proposed Uniform Code of Military Justice,
62 HARv.L. Rav. 1377 (1949).
 .IV tJA 1 '.4" V vI A tA . r#
f AL*V 1 J2.

meant to be complete but to bring into proper perspec-

tive the changes that have taken place since World War II.

MILITARY AND CIVILIAN JUSTICE-

2
SEPARATE CONCEPTS

An all-important point to be borne in mind is that the

administrations of military justice and civilian justice
are two separate judicial systems.' A difference does not
necessarily mean an injustice.4 The difference is occasioned
by the very nature of the two organizations. It is the
function of the army not only to wage war but to win
war.' We must contrast this with the function of our
civilian democratic society if we are to appreciate the
existing system of military justice and be in a position to
weigh the new developments. The function and objec-
'Acknowledgment is made of the assistance furnished the author in the
preparation of the section on "Military and Civilian Justice-Separate Con-
cepts" by the notes of an address given before the Torch Club of Cincinnati,
Ohio, in 1949 by the late Frank S. Rowley, Dean of the College of Law, Uni-
versity of Cincinnati, and former Colonel, The Judge Advocate General's
Corps.
'WINTHROP, MILITARY LAW AND PRECEDENTS, Par. 53 (2nd ed. 1896) states
that the Fifth Amendment to the U. S. Constitution is not an original provision
initiating a military jurisdiction, but is rather a declaratory recognition and
sanction of an existing jurisdiction.
4EDWARDS AND DECKER, THE SERVICE MAN AND THE LAW, 85-99 (1951)
compares the rights an accused has as a civilian with the rights he has as a
serviceman. There are actually more safeguards provided for an accused
serviceman by Congress and the President.
"'Many of the critics overlook the place of military justice in the Army or
the Navy. An Army is organized to win victory in war and the organization
must be one that will bring success in combat. This means singleness of com-
mand and the responsibility of the field commander for everything that goes
on in the field . . .and when critics say that you ought to have a completely
independent judiciary they overlook the primary purpose of the Army, namely
safeguarding the nation and winning the war." Mr. Robert Patterson, state-
ment reported in the Harvard Law School Record, March 23, 1949, page 2,
col. 5. See also Proposed Uniform Code of Military Justice, 62 HARV. L. REv.
1377, 1378 (1949).
 CODE AND MILITARY LAW

tive of our republican form of government are to enable

our people to live together in peace and with a reasonable
measure of happiness. The criminal law of the civilian
community is designed to promote this objective by
attempting to accord to every civilian member of the
community a freedom of action commensurate with the
safety of'all. It tries to remove frictions while permitting
men to go about their* several businesses in their own
ways. This will not suffice for the military establishment.
It will not do simply to prevent soldiers from attacking
one another. The armed force must operate smoothly
toward its objective, success in battle. It must have
discipline, obedience and direction, and military justice
must contribute to that end. 6 An army must be able to
send men obediently to their deaths; it is designed for
that purpose. Otherwise it would be an undisciplined
mob, and undisciplined mobs cannot win wars. Thus it
is that an army must be a hierarchy. However, to see a
conflict between the maintenance of discipline and the
maintenance of justice is to beg the question. They
both have and can be maintained side by side in any
organization no matter what its purpose. The procedural
aspects may differ, but justice, the punishment of the
guilty and the upholding and protection of the innocent,
need be transgressed not one iota.
These separate concepts of military functions and pur-
pose were responsible for our original notions of military
justice and have governed its development. The military
code of the army is contained in statutes of the United
States, now called the Uniform Code of Military Justice.
'WINTHROP, MILITARY LAW AND PRBCUDUNTS, par. 54 (2nd ed. 1896);
Ex parle Milligan, 4 Wall. 2, at 123 (1866); in 2 CLODS, M. F. 361 it is said of
these courts in the British Law: "It must neyer be lost sight of that the only
legitimate object of military tribunals is to aid the Crown to maintain the
discipline and government of the Army."
 VVI 2.JNO A J
I I ' ,JI L VIV VI I I LA IVV ZF I V

They have been in effect since shortly after the adoption

of the Constitution. These are expounded and explained
by the Manual for Courts-Martial, an executive order of
the President, 7 which sets forth the procedures for the
application of the principles in the Code. The armies of
the colonists in the Revolution used the military code
then in effect in the British Army. Indeed, shortly after
the outbreak of the Revolution, John Adams and Thomas
Jefferson recommended that this code of military justice
be adopted by the Congress as the one which had carried
the armies of two great empires to victory in battle-the
Roman and the British. They both felt that fresh con-
sideration would not result in an improvement on the
Roman-British notions. 8 Hence it came about that our
system of military justice is an evolution of the laws of
Caesar.
The Constitution recognizes a separate military judicial
system, operating independently of the judicial systems
of the federal and state governments. 9

'Manual for Courts Martial, United States, 1951 is Executive Order 10214,
dated February 8, 1951. Besides explaining the statutes, the manual sets out
pre-trial procedures and rules of evidence to be used at the court-martial trial.
Professor Wigmore wrote the rules of evidence for the 1921 Manual for Courts-
Martial.
"'This report was made by me and Mr. Jefferson in consequence of a letter
from General Washington, sent by Colonel Tudor, Judge Advocate General,
representing the insufficiency of the Articles of War, and requesting a revision
of them. . . . There was extant one system of Articles of War which carried
two empires to the head of mankind, the Roman and the British; for the
British Articles of War were only a literal translation of the Roman. It would
be vain for us to seek in our own inventions a more complete system of military
discipline." 3 JoHN ADAMS, AUTOBIOGRAPHY 68 (August 19, 1776).
*The Constitution of the United States, Art. I, Sec. VIII, Clause 14 gave
Congress the power "to make rules for the government and regulation of the
land and naval forces." Clauses 1, 11, 12, 13, 15, 16, 17 and 18 also are appli-
cable. The Fifth Amendment of the Constitution excepts cases arising in the
land and naval forces from the provision that no person shall be held to answer
for a capital or infamous crime without presentment or indictment of a grand
 CODE AND MILITARY LAW

HISTORICAL DEVELOPMENT

The forces exerted by seven wars and 177 years have

wrought changes in the military judicial system. These
changes have tended to make the military system resemble
more closely the civilian judicial system. Right of an
accused to counsel and appellate review procedures will
show this tendency.
The history and development of the right of an accused
to representation by counsel started with the Revolution.
In the Act of 1775, there was no reference to any such
representation; neither was there any requirement that
the accused be furnished with an adviser.10 Colonel
Winthrop, in his abridgement of his Treatise on Military
Law, published in 1886, stated the rule and attitude then
prevailing as to representation of an accused by counsel :
"The strict rule which usage formerly prescribed . ..
precluded (counsel) from all oral communication, not
being permitted to examine witnesses viva voce, or to
express themselves either through the accused or in
writing....
"Occasionally indeed the old rule is insisted upon at
the outset, though relaxed later, but more frequently
much the same license is allowed at all stages as at an
ordinary criminal trial .... Objection to the reading of
the final address, or to a closing oral or written argument
by the counsel, is now of the rarest occurrence."
jury. Art. II, Section II, Clauses 1, and Art. II, Section III provide that the
President shall be Commander-in-Chief of the Army and Navy, and shall have
the power to commission all officers of the United States. The right to trial by
jury was held by the Supreme Court not to apply to cases tried by military
courts in Ex parle Quiin, 317 U. S.1, 45 (1942).
'0American Articles of War of 1775, June 30, 1775.
1
n WINTHROP, MILITARY LAW AND PRUCID8NTS, 166, 167 (1920 reprint of

1896 Edition).
 JIVI VI_1 Y
Y i UP I- VJNIVA J J LAW KIf VIEJW

In a general order, published in 1890,12 it was required

tha't the commanders of posts, where courts-martial were
convened, detail, if practicable, at the request of the
accused, a suitable officer as his counsel.
In 1916, representation by counsel was established as a
right of the accused.13 The Manual for Courts-Martial
for that year contained a requirement to that effect.
However, it also contained the following qualification:
"Officers of the Judge Advocate General's Department
are not available for appointment' 4as counsel for the
defense in trials by courts-martial."

Finally, on July 14, 1919, paragraph 108 of the Manual

for Courts-Martial was amended by adding the follow-
ing paragraph:
"Every officer convening a general or special Court-
Martial will, in the convening order detail a defense
counsel for the court whose duties it shall be to act as
counsel for all accused persons tried by that court ....
Officers so detailed should have the qualifications
described in paragraph 94 for the Judge Advocates and
should be selected with the same care."' 5

Articles of War, 1949, provided that the defense

counsel must be a lawyer if the trial counsel was a
lawyer."
UCMJ, 1951, provides that the defense counsel in a
general courts-martial must be a lawyer.' 7
"SWar Department General Order, No. 29 (1890).
'$Article of War 17 (Articles of War will hereafter be cited as A. W.).
14
MCM 1917, Par. 108.
"5MCM 1921, Par. 107a.
'GA. W. 11 (1949).
"7Uniform Code of Military Justice (hereafter referred to as U.C.M.J.),
Art. 27; See Sellingslob and Hodson, Civilian Counsel in General Court-Martial
 CODE AND MILITARY LAW

Prior to World War I, the processes of courts-martial

stopped in the majority of cases at the level of the officer
who appointed the court. That is, after a court-martial
had found the accused guilty and had sentenced him, the
appointing authority had the power either to disapprove
the sentence or to approve it and direct its execution."
In order to secure greater appellate control over trial
procedures in .certain cases, a General Order in 1918
required judicial review before execution of sentences such
as death in time of war or dishonorable discharge. 19 In
1920 Congress revised the Articles of War so as to pro-
vide for a system of appellate review of serious sentences, 20
to provide rules for preferment and verification of
charges, 2 1 to require pre-trial investigation of charges,23
to require appointment of defense counsel,2 ' and to
stipulate the appointment of a "law member" on each
general court-martial, who should be an officer with legal
training if possible." It was made the function of the
law member to rule on the admissibility of evidence and
other interlocutory questions of law.2
Articles of War, 1949, established a Judicial Council in
addition to the existing boards of review in the Office of
the Judge Advocate General."6 Its members were corn-
Cases Under the Uniform Code of MilitaryJustice. 3 WASH. U. L. Q. 356, (1952).
and Capello and Dzialo, Civilian Counsel Under the Uniform Code of Military
Justice, 1 CATHOLIC U. L. REv. 81 (1951).
"A. W. 46 (1916).
"'War Department General Order, No. 7 (1918).
"0A. W. 50% (1921).
21A. W. 70 (1921).
22A. W. 70 (1921).
"A. W. 17 (1921).
2A. W. 8 (1921).
2MCM 1921, Par. 89a.
-A. W. 50 (1949).
posed of three general officers of the Judge Advocate
Generals Corps. They reviewed cases referred to them
from the various boards of review.
The Uniform Code abolished the Judicial Council and
established the Court of Military Appeals composed of
three civilian judges.27 This court reviews cases handled
by the boards of review.

POST WORLD WAR II DaVULOPMENTS

Secretary Robert P. Patterson in 1946 requested the
President of the American Bar Association to nominate
the members of an Advisory Committee to investigate
military justice and make recommendations for its im-
provement. Nine eminent lawyers and jurists were
nominated by the president of the Association and
appointed by the Secretary of War. The committee in-
cluded four former presidents of the Association and
several judges of state and federal courts, and functioned
under the chairmanship of Arthur T. Vanderbilt, himself
a former president of the Association and Chief Justice
of New Jersey. 8
The Committee conducted an intensive investigation.
It held public hearings in eleven principal cities, at which
264 witnesses appeared.29
It should be emphasized that the Committee avoided
vU.C.M.J., Art. 67.
"9The committee appointed by W/D Memorandum No. 25-46, 25 March
1946, was composed of the following members: Arthur T. Vanderbilt, Newark,
N. J.; Mr. Justice Alexander Holtzoff, Washington, D. C.; Mr. Walter P.
Armstrong, Memphis, Tennessee; Honorable Frederick U. Crane, New York,
New York; Mr. Joseph W. Henderson, Philadelphia, Penn.; Mr. William T.
Joyner, Raleigh, N. C.; Mr. Jacob M. Loshly, St. Louis, Mo.; U. S. Circuit
Judge Morriss A. Soper, Baltimore, Md.; Mr. Floyd 13. Thompson, Chicago, Ill.
2"Report of Advisory Committee on Military Justice 2 (13 Dec. 1946).
 CODE AND MILITARY LAW

testimony by those who had been convicted by courts-

martial and their friends.3 0
It considered more than 500 letters and more than 321
replies to a questionnaire sent to Generals, Judge Advo-
cates, other officers, and enlisted men.3 The Committee
Report, submitted in December, 1946, to Secretary of
War Robert Patterson, contained two significant state-
ments:
(i) "Our informants said that the Army system of
justice in general and as written in the books is a good
one; that it is excellent in theory and is designed to secure
swift and sure justice; and that the innocent are almost
never convicted and the guilty seldom acquitted. With
this conclusion the Committee agrees. We were struck
by the lack of testimony as to the conviction and punish-
ment of innocent men. This is doubtless true because,
speaking in general32 terms, the system is designed to
accord a fair trail.
(2) "The Committee noted, however, among the con-
structive critics of the system, a surprising lack of en-
thusiasm for its operation. On the contrary, there was
often a disquieting absence of respect for the operation
of the system in 3
its tremendous expansion under the
impact of war.11

After considering the report of the Vanderbilt Com-

mittee,34 the War Department forwarded to the Congress
a proposed bill containing a program of changes adopting
most, but not all, of the recommendations. Identical
bills were introduced in the House and Senate, the House
bill being called the "Elston Bill" after the Cincinnati
"Ibid.
"Ibid., page 3.
"Ibid.
uIbid., pages 3-4.
Ubid., page 2.
Representative who sponsored it. Further study fol-
lowed by the House Committee on Military Affairs and
the Senate Committee on the Armed Services. Extended
public hearings were held on the House Bill. Finally,
after much argument and some compromise, both houses
passed the Bill as Title II of the 1948 Selective Service
Act. 5 The changes it made in the Articles of War be-
came effective February 1, 1949.
With the unification of the armed forces it became
necessary to put into effect a code that would be applicable
to all three services.3 The modifications that had first
appeared in the 1949 articles were carried further. The
result was the present Uniform Code of Military Justice. 7
To appreciate fully this Code it will be useful now to
compare it to the articles as they were.
Since the adoption of the British articles on June 30,
1775, the American military code has changed many
times, first in 1776, then again in 1786, 1806, 1874, 1916,
1921, 1949 and 1951. The last three changes and the
Manuals for Courts-Martial that implemented them will
be compared in part in order to show the modifications
that have occurred in the military justice system as it
was administered in World War II.

"Sec. 21, Selective Service Act of 1948, P. L. 759, 80th Congress, 24 June
1948; 62 Stat. 627 (1948).
USec. 201, Title II, National Security Act of 26 July 1947; 5 U. S. C. 171;
61 Stat. 499 (1947).
37P. L. 506, 81st Congress; 64 Stat. 108 (1950); 50 U. S. C. Pars. 551-736.
The Uniform Code did not grow out of the 1949 Articles. Hearings were being
held on it at the same time the 1949 Articles were being considered. A special
committee was appointed by the Secretary of Defense and headed by Professor
Fdmund M. Morgan to do the initial study. The Secretary of Defense pre-
sented the Uniform Code of Military Justice to Congress on February 8, 1949
(H. R. 2398, 81st Cong., 1st Sess. (1949)).
 CODE AND MILITARY LAW

COMMANDING OFFICER'S PUNISHMENT

1921I s
Imposed by any commanding officer upon any military person
who did not demand trial. Maximum punishments:
(a) For officers-Restriction for one week, and if in time of
emergency or war CO General Officer may require forfeiture of
Y2 pay for I month of an officer below rank of Major.
(b) For Non-Commissioned officers-Restriction for one week.
(c) For other enlisted persons-Extra fatigue, restriction, hard
labor without confinement, or any combination thereof for one
week.
194939
Imposed by any commanding officer upon any military person
who did not demand trial. Maximum punishments:
(a) For officers-Restriction for 7 consecutive days and, if
imposed by GCM authority, forfeiture of /2 pay per month for
3 months;
(b) For Non-Commissioned officers-Restriction for 7 con-
secutive days;
(c) For other enlisted persons-Extra fatigue, restriction, hard
labor without confinement, or any combination thereof, for 7
consecutive days.

195140
Imposed by a commanding officer upon any military person
who does not demand trial. Maximum punishments:
(a) For officers-Restriction for 2 consecutive weeks or, if
imposed by GCM authority, forfeiture of Y of 1 month's pay;
(b) For Non-Commissioned officers-Restriction or 2 hours
per day of extra duty (for 2 consecutive weeks) or reduction to
next grade (by Major or higher who can promote);
(c) For other enlisted persons-Restriction or 2 hours per day

8A. W. 104 (1921).

'$A. W. 104 (1949).
4
0U.C.M.J., Art. 15.
354 UNIVERSITY OF CINCINNATI LAW REVIEW

of extra duty (for 2 consecutive weeks) or reduction to next

grade, or confinement for 7 days, or confinement on bread and
water for 3 days (when attached to or embarked on vessel).

SUMMARY COURT-MARTIAL.

192141
Jurisdiction:
(a) Officers-No jurisdiction;
(b) Non-Commissioned officers of first three grades-Exempted
from jurisdiction by Executive Order of President in Manual for
Courts-Martial;
(c) Non-Commissioned officers below first three grades-For
a non-capital offense, either if they do not object, or if trial is
authorized by officer competent to bring them to trial before
general court-martial.

Maximum Punishments:
Confinement at hard labor for one month; or restriction for 3
months, and forfeiture of V3 of 1 month's pay.

194942
Jurisdiction:
For a non-capital offense, could try any enlisted person or
civilian subject to military law, but non-commissioned officers of
first two grades could not be tried without their consent; other
non-commissioned officers could not be tried unless they con-
sented or their trial was directed by commanding officer who
could appoint special court-martial.

Maximum Punishments:
Confinement at hard labor for 1 month or restriction for 3
months, and forfeiture of M of 1 month's pay, and reduction to
lowest enlisted grade.

"A. W. 14; MCM 1928, Par. 16 and 17.

43A. W. 14; MCM 1949, Par. 16 and 17.
 LUPPI AiPL' MILIJAKY LAW 355

1951
Jurisdiction:"
For a non-capital offense, may try, with his consent, any
-enlisted person or civilian subject to UCMJ, and, without his
consent, any enlisted person who is offered and refuses punish-
ment under Art. 15 (Commanding Officer's punishment).

Maximum Punishments:
(a) Upon NCO above 4th enlisted pay grade-One grade re-
duction, and 2 'month's restriction, and forfeiture of %/ of a
month's pay;
(b) Upon others-Reduction to lowest enlisted grade, and for-
feiture of % of 1 month's pay, and confinement at hard labor
for I month or hard labor without confinement for 45 days.

SPIRCIAL COURT-MARTIAL

1921
Jurisdiction:"
For a non-capital offense, could try any person subject to
military law and could adjudge as punishment:
(a) Comm. Officers-Exempted from jurisdiction by Manual
for Courts-Martial;
(b) Enlisted men-Confinement for six months and/or for-
feiture of % pay per month for six months.

1949
Jurisdiction:
For a non-capital offense, could try any person subject to
military law and could adjudge as punishment:
(a) Upon enlisted personnel-Bad conduct discharge if ver-
batim record made;
(b) Upon all except officers-Confinement
for 6 months;
(c) Upon all persons within jurisdiction of court-Forfeiture
of 2/ pay per month for 6 months.

4"U.C.M.J., Art. 20, MCM 1951, Par. 16.

4A. W. 13; MCM 1928, Par. 14, 15.
45A. W. 13; MCM 1949, Par. 14, 15.
356 UNIVERSITY OF CINCINNATI LAW REVIEW

1951
Jurisdiction:"
Comparable provisions.

GVN&RAL COURT-MARTIAL

1921
Power to appoint: 7
President; Commanding Officer of a territorial Division; Super-
intendent of Military Academy; Commanding Officer of an Army,
Army Corps, Division, or a separate brigade, or any Command-
ing Officer when empowered by the President.

Counsel:"8
Trial counsel and defense counsel were to be carefully selected.
Accused to have right to select own defense counsel, either
military or civilian.
9
Members:"
Not less than 5, one of whom was the law member.

Law Member:"°
Shall be an officer of the Judge Advocate General's Depart-
ment when available.
Shall have same duties and privileges of other members of
court. Principal duty was to rule on all interlocutory questions
during trial. Ruling was final only as to admissability of evidence.

1949
Power to appoint:"
Power to appoint GCM conferred by statute and by the
President.
4
U.C.M.J., Art. 19, MCM 1951, Par. 15. Change I toSR 22-145-1 (6 March
1952) prohibits the use of recorders at Special Courts-Martial, thereby depriv-
ing the court in effect of awarding a bad conduct discharge.
7
A. W. 8, (1921).
"A. W. 17; MCM 1928, Par. 41, 43.
40A. W. 5 (1921).
60A. W. 8; MCM 1928, Par. 40; A. W. 31 (1921).
UA. W. 8 (1949).
 CODE AND MILITARY LAW

Counsel: 2
If available, trial and defense counsel were to possess .legal
qualifications.

Members:"
Consisted of 5 members, one of whom was the law member.
Law Member:"
Served as member with, and had same duties, powers, and
privileges as, other court members. Principal duty was to rule
upon all interlocutory questions arising during the trial and to
advise the court on question of law and procedure which arose
in closed session. His rulings were final in all matters except
upon a motion for a finding of not guilty, or a question of accused's
sanity.

1951
Power to appoint:"
Power to appoint GCM conferred by statute, by the President,
and by the Secretary of the Army.

Counsel:"
Both trial and defense counsel must possess specified legal
qualifications and be certified by TJAG as competent to perform
duties.

Members:61
Consists of 5 members and a non-member law officer.
Law Officer:"
He is not a member of the court, but comparable to civilian
judge, while court members are comparable to civilian jury. He
may not instruct the court when it is in closed session but must

"A. W. 17; MCM 1949, Par. 41, 43.

"A. W. 5 (1949).
54 A. W. 8, A. W. 31; MCM 1949, Par. 40.
"U.C.M.J., Art. 22.
"eU.C.M.J., Art. 27.
"7U.C.M.J., Art. 16.
'SU.C.M.J., Art. 26, Art. 51(b).
instruct the court, in open session, as to the elements of each
offense charged including lesser included offenses. Ruling is
final in all matters except sanity of accused and a motion for a
finding of not guilty.

OFFENSES AND PUNISHMENTS

1921
b
Punitive Articles: g
Consisted of 43 articles. The definition of many offenses was
found in the Manual and not in the Articles.

Punishments:
Court-martial could adjudge any punishment authorized by
law or custom of service, subject to Table of Maximum Punish-
ments.

Effect of previous convictions :"1

Court could consider convictions of offenses, not necessarily
similar, committed during current enlistment or appointment,
but not prior to one year preceding the offense; proof of 5 or more
such convictions would authorize punishment of dishonorable
discharge, total forfeitures, and confinement for 3 months.

1949
Punitive articles:2
Consisted of 43 articles. The definitions of many offenses
were found in the Manual and not in the Articles.

Punishments:6
CM could adjudge any punishment authorized by law or
custom of service, subject to Table of Maximum Punishments.
6
9A. W. 54-96 (1921).
OOA. W. 41, 42, 43, 44, 45; MCM 1928, Par. 102, Par. 104c of MCM, 1928,
set out maximum punishments that could be given for each offense made
punishable by a specific article. It was arranged in tabular form for ready
reference and was known as the Table of Maximum Punishments.
61MCM 1928, Par. 79c, Par. 104c, Section B.
62
A. W. 54-96 (1949).
3
0 A. W. 41, 42, 43, 44, 45 (1949).
 CODE AND MILITARY LAW

Effect of previous convictions:64

Court could consider convictions of offenses committed during
1 year next preceding the commission of any offense charged
against an accused; proof of 5 or more convictions authorized
punishment of bad conduct discharge, total forfeitures, and con-
finement for 3 months.

1951
Punitive articles:"
Consist of 58 articles, some of which are new as specific
statutory provisions (such as missing movement and misconduct
as prisoner). Many offenses are defined for the first time in the
Articles.

Punishments:6
May adjudge any punishment not forbidden by UCMJ, sub-
ject to Table of Maximum Punishments, which, in general, now:
(a) Contains punishments for many more offenses;
(b) Has higher limits of punishment;
(c) Permits a punitive discharge to be adjudged for many
more offenses (e.g., for breach of arrest, punishment may be bad
conduct discharge, total forfeitures, and confinement for 6 months;
formerly it was limited to confinement and partial forfeiture for
3 months).

Effect of previous convictions:67

Court may consider convictions of offenses committed during
3 years next preceding the commission of any offense of which
accused is convicted; proof of 2 or more such convictions authorizes
punishment of bad conduct discharge, total forfeitures, and con-
finement for 3 months.

4MCM 1949, Par. 79a, 139b.

UU.C.MJ, Art. 77-134.
eeU.C.M.J., Art. 55, 56; MCM 1951, Par. 127c.
47MCM 1951, Pars. 153b, 21(b), and 75b(2).
360 UNIVERSITY OF CINCINNATI LAW REVIEW

PRETRIAL PROCEDURIE

1921
Arrest or confinement: 8
The term "arrest" denoted both the act of taking into custody
and a moral form of pretrial restraint. Confinement denoted a
physical restraint.

Compulsory self-incrimination:19
(No witness before a military court could be compelled to in-
criminate himself or to answer any question the answer to which
would tend to incriminate him.) No express provision in Art 24
provided that an accused should first be warned of his right not
to make any statement, and that any statement made could be
used against him in a trial by court-martial. However, the 1921
Manual interpreting Art 24 provided for such warning.

Statute of limitations:70
Except for desertion committed in time of war, or for mutiny
or murder, no person subject to military law shall be liable to be
tried or punished by a court-martial for any crime or offense
committed more than two years before the arraignment of such
person.
1949
Arrest and confinement: 71
The term "arrest" denoted both the act of taking into custody
and a form of moral pretrial restraint. Confinement denoted a
physical restraint.

Compulsory self-incrimination:"2
Person who questioned accused had to first have warned him
of his right not to make any statement, and that any statement
made could be used against him in a trial by court-martial. If
such preliminary warning and advice were not given, statement
of accused might have been admissible upon proof that statement

'IMCM 1928, Par. 139(a).

$A. W. 24 (1921); MCM 1921, Par. 225b; MCM 1928, Par. 114a.
7'A. W. 39; MCM 1928, Par. 67.
71MCM 1949, Pars. 19b and 19c.
71A. W. 24 (1949).
 CODE AND MILITARY LAW

was voluntary and that he was aware of his right not to in-
criminate himself.
Statute of limitations:71
Similar provisions except that absence without leave com-
mitted during time of war was also exempted from the two-year
statute.
1951
74
Apprehension, arrest, or confinement:
The term "arrest" denotes only a moral form of pretrial re-
straint, while an "apprehension" is a taking into custody, with
the right to impose necessary physical restraint. Confinemen.ti
denotes a physical restraint.
Compulsory self-incrimination:"
No person subject to the Uniform Code shall interrogate an
accused (i.e., one against whom formal charges have been pre-
ferred) or a person suspected of an offense without first inform-
ing him of the nature of the accusation and adv.sing him of his
rights. If such preliminary warning and advice are not given,
statement of person interrogated is not admissible in evidence
against him.
Statute of limitations:"
Sworn charges must be filed with an officer exercising summary
court-martial jurisdiction within a two or three year period de-
pending on the offense committed. Those offenses exempted
from the statute in the 1949 articles remained exempted.

TRIAL PROCRDURIM

1921
Challenges:
Law member could be challenged for cause, but not peremp-
torily.
7
8A. W. 39 (1949).
11MCM 1951, Par. 18a; U.C.M.J., Art. 7, Art. 9a.
11U.C.M.J., Art. 31.
14U.C.M.J.,
Art. 43.
-A. W. 18 (1921).
 V. UTJ rV.XJ0A IZ Ur L1JIIT/11 ALAW .V A

Duties of president of special CM: 7

In all cases he rules in open court upon all interlocutory ques-
tions other than challenges arising during the proceedings.

1949
Challenges:79
Law member could be challenged for cause, but not peremp-
torily.
Duties of president of special CM:8°
In open court, rules initially upon all interlocutory questions
and gave members stock instructions concerning reasonable
doubt, presumption of innocence, and burden of proof.

1951
Challenges:"1
Law officer can be challenged only for cause, and his legal
qualifications are not proper subject of inquiry.
Duties of president of special CM :s 2
Same provisions and, in addition, must, in open court, instruct
court as to elements of each offense charged, including lesser
included offenses which are in issue.

COURT P]MRSONNEL

1921
General:"
Not less than 5 officers, one of whom is the law member.
Trial counsel.
Defense counsel.

70MCM 1928, Par. 51c.

"'A. W. 18 (1949).
86MCM 1949, Par. 51c.
VMCM 1951, Par. 62g.
82 MCM 1951, Par. 40b(2). This provision imposes a heavy duty upon the
President. He is not usually a lawyer. Still, he must instruct the other members
in difficult questions of law.
uA. W. 5, A. W. 17 (1921).
 CODE AND MILITARY LAW

Special:u
Not less than 3 officers.
Trial counsel.
Defense counsel.

Summary:85
One officer.

1949
General:86
Not less than 5 members. One of whom is the law member.
One third may be enlisted, if requested by an enlisted accused.
Trial counsel.
Defense counsel (must be lawyer if trial counsel is lawyer).

Special:8
Not less than three members, one third of whom may be
enlisted if requested by an enlisted accused.
Trial counsel.
Defense counsel (must be lawyer if trial counsel is lawyer).

Summary:88
One officer.

1951
General:"
Not less than 5 members and a law officer. One third of mem-
bers may be enlisted if requested by an enlisted accused.
Trial counsel (must be a lawyer).
Defense counsel (must be a lawyer).

UA. W. 6, A. W. 17 (1921).
"A. W. 7 (1921).
-A. W. 4, A. W. 5, A. W. 11 (1949).
PA. W. 4, A. W. 6, A. W. 11 (1949).
88
A. W. 7 (1949).
*'U.C.M.3., Art. 16(1), Art. 25. Art. 26, Art. 27b.
Special:90
Not less than 3 members, one third of whom must be enlisted
if requested by enlisted accused.
Trial counsel.
Defense counsel (lawyer if trial counsel is lawyer).

Summary:9"
One Officer.

APPELLATE REviEw oF GCM, AND SPCM INVOLVING

A BAD CONDUCT DISCHARGE

1921
Appellate procedures:92
(a) Death, dismissal, dishonorable discharge sentences, sen-
tences respecting general officers, and confinement in the peni-
tentary were automatically reviewed by a board of review of
the Office of The Judge Advocate General.
Every record of trial by general court-martial was examined
in the Judge Advocate General's office. If found insufficient, it
was referred to a board of review. Such reviews were entirely
automatic.
(b) No provision for counsel to appear before board of review.
However, accused could pay for private counsel to appear before
board of review.

1949
Appellate procedures: ,
(a) Review[bywboard of review and Judicial Council, both
agencies being in JAGO, such review being entirely automatic;
(b) Accused had right to assistance of appointed counsel only
during pretrial and trial proceedings, but could retain and pay for
counsel to appear before board of review and Judicial Council.

"U.C.M.J., Art. 16(2), Art. 25, Art. 27c.

"1U.C.M.J., Art. 16(3).
02A. W. 48,FA. W. 5034; MCM 1928, Par. 45a.
"A. W. 50 (1949).
 CODE AND MILITARY LAW

1951
Appellate procedures:"4
(a) Review by board of review in JAGO and Court of Military
Appeals, a civilian court, such review being partly automatic and
partly optional to accused;
(b) Accused has right to assistance of appointed counsel both
at conclusion of trial (to advise him of appellate rights and to
assist in preparing clemency or appellate documents) and at each
stage of appellate proceedings.

As this comparison has ended with a discussion of

appellate review it would be appropriate to take a closer
look at the Court of Military Appeals.

THE COURT OF MILITARY APPEALS

The United States Court of Military Appeals was

established under the Uniform Code of Military Justice."
The first hearing session was held on 7 September 1951,
and the court's first opinion was filed on 8 November
of the same year."7
The Court of Military Appeals reviews the records in
the following cases:
(1) All cases in which the sentence as affirmed by a

UMCM 1951, Par. 4 8 j( 3 ); U.C.M.J., Art. 66, Art. 67.

"Acknowledgment is made of the assistance in the preparation of the section
on "Post World War II Developments" by material on the 1949 and 1951
Code prepared by Lt. Col. Kenneth J. Hodson and Ist Lt. Paul W. Hess of the
Judge Advocate General's Corps of the Army.
"Supra note 37.
"For further articles on Court of Military Appeals see Brosman. Judge
Reviews Court, 2 THE STUDENT LAWYE9R 3 (Dec. 1952); Beauregard, United
States Court of Military Appeals, 57 CASE AND COMMENT 3 (1952); Van Buskirk.
Introduction to the U. S. Court of Military Appeals I INTRA L. Rav. (American
University) 34 (1952).
board of review" affects a general or flag officer or
extends to death. 9
This is a mandatory jurisdiction. It
must review all such cases. The records must come to it
regardless of the wishes of the armed service concerned
or even of the accused. The cases are not many from
this source. The death sentence is not a frequent thing
in the military service, and only rarely do generals and
admirals become personally involved in court-martial
proceedings.
(2) All cases reviewed by a board of review which The
Judge Advocate General orders forwarded to the Court
of Military Appeals for review.' 0 There may be several
reasons for such an order. Conflicts in board of review
holdings and extremely close questions of law are ex-
amples. This is a certificate jurisdiction. It must review
all cases passed on by The Judge Advocate General of
any of the armed services. Although discretionary with
the various Judge Advocates General, the jurisdiction is
mandatory so far as the Court of Appeals is concerned.
However, such review need be taken only with respect
to the specific issue raised by The Judge Advocate General
referring the case. 1 '
(3) All cases reviewed by a board of review in which,
upon petition of the accused and on good cause shown,
"Art. 6, U.C.M.J., provides that a board of review shall consist of not less
than three officers each of whom is a member of the bar of a Federal Court or
of the highest court of a State of the United States. Ten such boards of review
sit in the office of The Judge Advocate General of the Army in Washington.
They are empowered to review not only questions of law, but also of fact. Cases
coming before them are those in which the sentence affects a general or flag
officer or extends to death, dismissal of an officer or cadet, dishonorable or
bad-conduct discharge, or confinement for one year or more.
'5 U.C.M.J., Art. 67(b) (1).
100U.C.M.J., Art. 67(b) (2).
101U.C.M.J., Art. 67(d). However, once the court has passed upon the special
issue presented it is free to enquire into other matters in the record.
 CODE AND MILITARY LAW

the Court of Military Appeals has granted a review.'10

The accused has 30 days from the time he is notified of
the decision of a board of review to petition the court
for a grant of review. 10 3 This is a certiorari jurisdiction.
It comprises the bulk of the court's work. The normal
deterrent to appellate review, financial cost to the
appellant, is not present. It is discretionary with the
court whether it will review such cases.
The court takes action only with respect to matters of
law. 104 In this respect it differs from a board of review
which may inquire into matters of fact as well as law.
As of 6 December 1952, one thousand' nine hundred
thirty-four cases had been docketed with its clerk. This
represents a work load accumulated during the first
fifteen months of operation. Of these 1934 cases, 99
came up by way of certificate, 11 were mandatory death
sentence cases, and the remainder came up on petition.
As of 6 December 1952, final action had been completed
on 1523 of the 1934 docketed cases.
The membership of the court consists of three judges
appointed from civilian life by the President by and with
advice and consent of the Senate, for a term of fifteen
years. 105 Each judge receives a salary of $17,500 and is
eligible for re-appointment. The first and present judges,
representing in background all three services, are as
follows:
(1) Robert E. Quinn, Chief Judge.
Judge Quinn is a former Governor of Rhode Island,
having been elected to that office in 1937. Prior to that
10OU.C.M.J., Art. 67(b) (3).
10
°U.C.M.J., Art. 67(e).
1U.C.M.J., Art. 67(d).
"'U.C.M.J., Art. 67(a) (1).
time, he had served two terms in the Rhode Island Senate
and one as Lieutenant Governor of the State. At the
end of his term as Governor, Judge Quinn became Judge
of the Rhode Island Superior Court.
Since 1942, Judge Quinn has held a commission as
Captain in the Naval Reserve. From 1942 to 1945, he
was legal officer for the First Naval District.
(2) George W. Latimer, Judge.
Judge Latimer is a native of Salt Lake City, Utah. He
practiced law in Salt Lake City for a fifteen-year period
beginning in 1925. In World War II, Judge Latimer was
Chief of Staff of the Fortieth Infantry Division in the
Pacific Theater. After the war, he served on the Supreme
Court of Utah.
(3) Paul W. Brosman, Judge.
Judge Brosman was admitted to practice in Illinois in
1924 and in Louisiana in 1942. His legal career has
centered largely in the teaching field. Judge Brosman
has taught law at the University of Indiana, Mercer
University, and Tulane University. He was appointed
Dean of the Tulane University, College of Law, in 1938.
During World War II, he served as Chief, Military
Justice Division, Office of the Air Judge Advocate.

CONCLUSION

It is hoped that this article has assisted the reader in

understanding the background of the military law now
in effect. Military law, as well as other branches of the
law, will continue to be altered as circumstances change
and as new ideas are put to practical tests. However,
whatever problems it has to face will be solved with the
help of the legal profession. America's great contribution
 CODE AND MILITARY LAW

to world culture has been its development of sound

government founded on law. This law is a taught law;1*6
it is not handed down from one generation to another
like folk ballads. It is technical and only mastered by
studious application. In this manner the United States
has followed the path of Rome rather than that of Greece
with its esthetic arts. The legal profession, both that
part in the military and its civilian counterpart, has
fashioned the Uniform Code. It can say as Paul said to
Timothy, "We know the law is good, if a man uses it
rightly."° 7
'"The Army conducts at Charlottesville, Virginia, The Judge Advocate
General's School. Here, two courses are conducted for attorneys, both those
on active duty and those in an inactive reserve status. One course is conducted
for twelve weeks, the other, a more advanced course, covers twenty-nine weeks.
There is also conducted an extension course program in which approximately
600 attorneys are presently enrolled.
IwThe First Epistle of St. Paul the Apostle to Timothy, Chapter 1, lines
8 and 9.
 UNIVERSITY OF
CINCINNATI LAW REVIEW
Published Four Times A Year, January, March, May and November

$3.00 per annum $1.00 per current number

EDITORIAL BOARD

LAWRENCE HERMAN, Editor-in, Chief

ROBERT R. FRYMAN, Associate Editor
WALLACE S. FUJIYAMA, Associate Editor

GENE BARNHART JOHN L. KENRICH

LEo J. BRESLIN ALBERT H. NEMAN

Jo DAVENPORT SMITH GEORGE B. RAWP

JOSEPH V. HOFMAN PAUL W. SCHUCH

CHARLES M. HOOAN JACOB K. STEIN

BERTWiN J. KELLER, JR. JEROME S. TELLER

STUDENT CONTRIBUTORS

JAMES F. BARNHART DAVID REICHERT

GERALD BLUMBERG JAMES J. RYAN

JOHN R. MOSER WILLIAM C. STEWART, JR.

ALFRED A. MORmISON, Faculty Adviser

ROBERT A. MACE, Assistant Faculty Adviser