90

a convening authority has been curtailed by the latter's consideration of certain restrictive departmental policies. For example, in United States v. Doherty, the Court deliberated upon the implications attending the consideration by a convening authority of SecNav Instruction 1620.1 of 5 June 1953 pertaining to the administrative removal of sexual deviates from the naval service. It was contended in this case that those portions of the Instruction expressing a departmental policy against the retention of known homosexuals had the effect of unlawfully limiting the discretion of the convening authority with respect to his initial action on the record of trial. Although the Court determined that, in fact, SecNav Instruction 1620.1 did not represent an inviolable command to judicial reviewing authorities, but rather, obtained only during administrative proceedings, it was recognized that a convening authority might not have noted this rather subtle, yet important, distinction. Consequently, being of the opinion that the Instruction was arguably susceptible of an illegal interpretation, the Court proceeded to examine the actions of the convening authority and the recommendations of his staff legal officer in an attempt to determine exactly which interpretation had been adopted by the former. After considering the staff legal officer's recommendation concerning the sentence (which directly referred to the 1620.1 Instruction as precedent for declining to suspend the adjudged bad conduct discharge) and the convening authority's action (which similarly indicated a belief that neither remission nor suspension was proper in view of the policy expressed by the Secretary of the Navy), Judge Latimer concluded that the convening authority had misconstrued the Instruction in such a manner as to deny the accused the benefit of his unbiased discretion on review; consequently, the case was reversed.

91

In a similar decision, it was alleged that not only was the convening authority's discretion compromised by SecNav Instruction 1620.1 with respect to the initial action on the record, but that the latter's latitude concerning the threshold decision of whether or not to refer charges of attempted sodomy to a general court-martial likewise had been improperly restricted. The latter contention was supported by an argument to the effect that certain portions of the Instruction could have been construed by the convening authority to demand that all charges involving

90. 5 USCMA 287, 17 CMR 287 (1954).

91. United States v. Betts, 12 USCMA 214, 30 CMR 214 (1961).

homosexuality must be referred to a general court once an accused has declined to accept an administrative discharge. Nonetheless, the USCMA did not hesitate to conclude that the convening authority fully appreciated his discretionary obligations both before and after trial. In reaching this conclusion, Judge Latimer noted that:

While command influence is condemned at all levels, policy declarations generally conceded to be necessary to discipline and order are proper. The important question is not whether the convening authority gave consideration to the policy but rather did he understand fully that he had a choice to accept or reject it."* Thus, a majority of the Court determined that the instant convening authority, as revealed through an examination of the recommendation of his staff legal officer and his own initial action on the record, had considered the controversial policy but had not been inhibited by it.

93

From these two illustrative decisions, and others of similar import, it can be seen that when the USCMA considers allegations of command influence affecting reviewing authorities a slightly different and more liberal process of analysis is employed than that utilized with respect to cases involving court members. As a threshold consideration, the USCMA appears to determine whether the contested policy communication or military command arguably may have been considered coercive or mandatory by the convening authority. However, even though an affirmative answer is considered appropriate to this question, the Court does not ipso facto declare the communication prejudicial as in cases involving members of a court-martial. Quite to the contrary, where the discretion of a reviewing authority is challenged, the USCMA appears to feel that since direct evidence pertaining to the state of mind of the convening authority is available for the Court's perusali.e., a pre-trial or post-trial staff legal officer's recommendation and the convening authority's action itself-a resort to indirect evidentiary forms such as presumptions is unnecessary and undesirable. In addition, the Court's attitude in this area may, in some measure, reflect a judgment that commanding officers, being of superior rank, are far more capable of withstanding improper official challenges than are court members whose inferior precedence might encourage a greater willingness to "adapt" to the desires of superiors. In any event, it can be

92. Id. at 218, 30 CMR at 218.

93. See United States v. Frazer, 15 USCMA 28, 34 CMR 474 (1964); United States v. Rivera, 12 USCMA 507, 31 CMR 93 (1961); United States v. Plummer, 7 USCMA 630, 23 CMR 94 (1957); United States v. Hawthorne, 7 USCMA 293, 22 CMR 83 (1956).

said of this category of decisions that while allegations of prejudice will be sustained only when substantiated by material of record, the USCMA is in no wise reluctant to protect the discretion of reviewing authorities in a proper case.

III

THE FUTURE

As has been indicated during the foregoing discussion, Congress initially fashioned an intricate system of balanced judicial prerogatives designed to satisfy at once the demands of the military and the realities of a constitutional democracy. However, it was upon the available shoulders of the USCMA that the continuing responsibility of policing this congressionally established arrangement devolved through, among other sources, the invitation contained within Article 37, UCMJ. Consequently, in the absence of new legislation, any innovations pertaining to the problem of command control over military tribunals must be initiated by the Court. Inasmuch as any extended examination of the decisions fashioned by the USCMA over the years will reveal that the Judges have been extremely willing to exercise the authority delegated to them in this area by the Uniform Code, criticism of the Court's action with regard to allegations of improper command influence, in all fairness, must be limited to a few isolated islands of alleged misconception.

That there is still concern over improper command guidance of courts-martial is indicated by the fact that Senator Sam J. Ervin, Jr., of North Carolina recently introduced legislation in the Senate 94 one of the avowed purposes of which is to expressly prohibit "any sort of pretrial instruction to members of courts-martial, now purportedly authorized by paragraph 38 of the Manual for Courts-Martial." 95 It is interesting to note that Senator Ervin's proposal closely parallels the judicial position consistently espoused by Judge Ferguson to the effect that the participation of commanders in the administration of military justice is, by virtue of statutory design, strictly limited to those functions particularly described in the UCMJ. Although it cannot be determined whether this suggested alteration of the statute is congressionally conceived as the birth of a new restriction upon the role of command or merely as a reaffirmation of the previously implicit intent of Congress with regard to pre-trial dialogue

94. S. 2002, 88th Cong., 1st Sess. (1963). 95. 109 CONG. REC. 14145 (1963).

heretofore misapprehended by the USCMA, it is submitted that in any event such an amendment may be viewed as a timely legislative clarification of the military judicial equation.

Also, it is submitted that in any case where court members are, prior to the commencement of trial, informed that fitness reports will be completed with an eye to their performance of judicial duties, the presence of a "veiled threat" may be readily detected. Again, a section of Senator Ervin's proposed legislation is devoted to the elimination of this evil on the ground that "evaluation of a person's performance as a court member should not be a basis for the rating he receives on an effectiveness or fitness report used for purposes of determining his promotions and assignments." 96

While there have been many other controversial decisions authored by the USCMA in the area of improper command influence, it is apparent that at least in the two specific classes of cases mentioned above Congress is now being offered an opportunity to reverse a prior judicial judgment. Furthermore, the entire thrust of the so-called Ervin Bills, of which there are eighteen, is to reshape and modernize the Uniform Code in light of the experience gathered through fourteen years of relatively successful operation. The emphasis of this new legislation is also noteworthy. The declared objective of the eighteen proposals is to "grant the full measure of justice and security to those to whom this Nation has entrusted its defense." 97 Consequently, the Ervin measures may be viewed as mute testimony to the fact that the ideological friction created through the juxtapositioning of discipline and justice within American society, after having been monitored by the judiciary since 1951, is returning once again to Capitol Hill in search of legislative relief.

96. Ibid.

97. 109 CONG. REC. 14142 (1963).

ARTICLES DEALING WITH TAXATION

In response to numerous requests, the following is a listing of recent JAG JOURNAL articles dealing with the subject of taxation:

Rolfson & Hawk, The Tax Impact of the Contingency Option Act, 15 JAG J. 25 (Mar. 1961)

Siefert, Death Taxes and Estate Planning, 16 JAG J. 115 (Sept. 1962) (reprinted 18 JAG J. 207 (Jan. 1964))

MacMillan, Dependents for Federal Tax Purposes, 17 JAG J. 191 (Dec. 1963)

Rolfson, Income Taxes Following Separation or Retirement from Active Duty, 19 JAG J. 35 (Nov.Dec. 1964)

U.S. GOVERNMENT PRINTING OFFICE: 1965

LEGISLATIVE HISTORY

N RECOGNITION OF the hardships and inconveniences frequently encountered in military life, the United States has traditionally provided its military employees with what might be termed "occupational fringe benefits". Thus, we have come to look upon medical care, commissary privileges, service clubs, retirement, and veteran's benefits as just a few of the many legislated advantages of military life.

One of the more significant statutory benefits of military service is embodied in a piece of legislation informally known as the Military Personnel Claims Act.1 Just twenty years ago, on 29 May 1945, the United States Congress enacted into law the forerunner of the present Military Personnel Claims Act.2 The 1945 Act repealed a number of statutes which had been passed in prior years for the payment of specific types of claims asserted by members of the military service. Thus, the effect of the new Military Personnel Claims Act was to consolidate prior laws and to erect a framework upon which the various military services could construct their own claims regulations. These regulations would then be used by personnel of each service as authority for asserting administrative claims against the Government for personal property damaged or lost incident to military service. It was hoped that the Military Personnel Claims Act would produce a uniformity not previously found in military claims legislation. In addition, it was hoped that the new legislation would greatly reduce the number of bills for private relief submitted to the Congress by claimants who theretofore had not had administrative recourse for property losses incident to their military service.*

He

*Lieutenant Marshall is presently assigned to the Litigation and Claims Division in the Office of the Judge Advocate General. received a B.S. degree from Purdue University in 1959 and graduated from the University of Michigan Law School in 1962. He is admitted to practice before the Supreme Court of Indiana, the Federal District Court for the Northern District of Indiana, the U.S. Court of Military Appeals, and the U.S. Court of Claims. He is a member of the Indiana Bar Association, the American Bar Association and the Delta Theta Phi Legal Fraternity.

1. 10 USC 2732.

2. 59 Stat. 225.

3. H. Rept. 237, 79th Cong., 1st Sess., 1945, p. 1.

4. Id. at 2.

Originally, the Military Personnel Claims Act was applicable only to the United States Army. Later, however, its provisions were extended by subsequent legislation so as to apply to the Navy, the Air Force, and the Department of Defense. From time to time other changes have been made in the basic provisions. The last of these changes extended such provisions to personnel of a number of non-military federal agencies to which benefits of the sort contained in the Military Personnel Claims Act had not heretofore been available."

At the present time, legislation is being proposed to raise the maximum amount payable from $6,500 to $10,000 per claim.3

Before examining the specific provisions of the Military Personnel Claims Act and their application to claims submitted by Navy personnel, it might be useful to reflect upon the basic considerations of the Congress in passing legislation of this sort. Undoubtedly, a number of factors were responsible for the initiation of this legislation and that which preceded it. Not the least of these factors was the view of Congress that military personnel should not be required to bear the entire financial burden for personal property which may have been damaged or lost incident to their military duties.9

This view was evidenced as early as 3 March 1849 when Congress passed an act to provide for the "payment for horses and other property lost or destroyed in the military service of the United States".10 Congress has also demonstrated its concern in regard to the peculiar risks to which the property of military personnel is sometimes subjected as a result of duty on foreign soil. The theory behind the latter legislation appears to be that the United States Government, having required the military member to serve his country abroad, should compensate the member for losses peculiarly related to such foreign duty. Another legislative theory operating in this area is that the govern

5. Dept. of Army PAM 27-162 (1962), p. 50.

6. Id. at 51.

7. Act of 31 Aug 1964, 78 Stat. 767.

8. H. R. 5024, 89th Cong.

9. Supra, note 3.

10. 9 Stat. 414.