Where there is no verbatim record of the proceedings,16 the party must execute in writing an acknowledgment that he had been informed of and permitted to exercise his party rights. He must further indicate any waivers thereof.17

The investigating officer or board counsel should not consider the proceedings as adversary proceedings. He must not view himself as a prosecuting attorney and should not treat the party as an accused in court-martial proceedings. The investigating officer is not the trier of facts but rather an impartial gatherer of facts.

The investigating officer should be aware of the party's interests and when it appears that the party obviously does not understand what is happening and is not properly exercising his rights, it would not be remiss for him to again remind the party of his rights. In line of dutyconduct investigations wherein it is evident that the party has incurred a permanent disability, such action is strongly recommended.

PARTY RIGHTS

Section 0304a of the Manual of the Judge Advocate General affords a party to an investigation the following rights. (Comments will be included where appropriate.)

1. "To be given due notice of such designation". 2. "To be present during the proceedings but not when the investigation is clear for deliberation."

A party has the right to be present whenever hearings are held or testimony is taken. However, this right is not extended so as to require the presence of parties whenever the investigating officer privately confers with, questions or elicits statements from witnesses. The party is entitled to examine these statements and can question the witnesses himself.

3. "To be represented by counsel."

A party may be represented by civilian counsel if provided by him or by military counsel of his selection. A party is entitled to military counsel of his own selection if reasonably available. A party to a JAG Manual investigation does not have the absolute right to lawyer military counsel (qualified in accordance with Article 27b, Uniform Code of Military Justice) unless the investigation is also serving as an Article 32, UCMJ, pre-trial investigation.18 In a Court of Inquiry or formal board, legal counsel should be made available if practicable; in an informal investigation, legal counsel should be provided if reasonably available. What

19

16. The record of the proceedings must be verbatim if the investigating body is a Court of Inquiry or formal Board of Investigation. JAG Manual, secs. 0435, 0506.

17. JAG Manual, sec. 0304e.

18. JAG Manual, sec. 0304b. 19. Ibid.

do these terms mean and to what degree do they differ? No concise distinction is available. However, in view of the greater importance and gravity associated with formal proceedings as opposed to informal investigations, the if practicable test should be construed more liberally than the reasonably available test. Thus lawyer counsel should more readily be made available to those people designated as parties by a formal board as opposed to an informal investigation.

As a practical matter, convening authorities when requested have been making legal counsel available to parties designated by courts of inquiry and formal boards of investigation; many problems which otherwise might be encountered have thus been avoided.

Most difficulties relating to the question of the availability of legal counsel occur in informal investigations. Frequently, they involve situations requiring a line of duty-conduct determination on a permanently disabled active duty member. If the man is denied legal counsel and an adverse determination is made, the man often will retain civilian counsel and possibly seek congressional assistance. Invariably he will request that the matter be reconsidered and may submit information not previously evaluated which will require further investigation. He may claim that as he was not initially assigned qualified legal counsel, he was unable to effectively present his case or his serious physical condition may have prevented him from participating in the investigation. As an adverse line of duty-conduct determination may result in substantial loss of benefits to a permanently disabled service member, it is recommended that requests for qualified legal counsel be honored whenever practicable, especially in those instances where an adverse determination is indicated. Similarly, in those instances when the disabled service member is physically unable to participate in the investigation and an adverse determination is indicated, the convening authority should make every reasonable effort to appoint qualified legal counsel to represent the individual.

37 U.S. Code 802 precludes any active duty Naval person who is absent from his regular duty for a continuous period of more than one day because of a disease that is directly caused by and immediately follows his intemperate use of alcoholic liquor or habit forming drugs from receiving pay for such a period. Frequently, large amounts of money may be involved when hospitalization or disability lasts for several months as frequently occurs with liver ailments and nervous disorders directly attributed to intemperate use of liquor and habit forming drugs. In such situations, an adversely affected service member may well seek financial relief in the federal courts or request reconsideration by the Judge Advocate General, especially if he did not have the services of legal counsel in the initial proceedings. It must be emphasized that the issue of causality which often arises in

determinations under this statute requires a degree of legal expertise which nonlegal counsel normally does not possess.

Similarly, in those situations where a party's performance of duty is under inquiry and an adverse recommendation may for all practical purposes terminate the party's career advancement, legal counsel should readily be made available.

Although a party who has been issued a punitive letter has the right to appeal and seek the aid of counsel, representation by legal counsel in the initial stages would facilitate the entire matter in that it would discourage appeals where they are unwarranted.

Other situations, depending on the individual circumstances, may require that the convening authority make available legal counsel. It is readily apparent that because of the limited number of law specialists, it is often not possible to assign a party legal counsel though the command is eager to do so. An examination of court decisions as well as congressional inquiry into military matters over the past decade strongly warrants the conclusion that whenever possible, convening authorities should make legal counsel available to those parties who stand to lose property or personal rights. In the event that the convening authority is unable to provide legal counsel he should include an explanation in his endorsement to the investigative report.

4. "To cross-examine witnesses."

In board proceedings whenever witnesses are called to testify, each party is entitled to crossexamine each witness. The normal strict rules of evidence used in courts-martial do not apply to investigative proceedings, but rather the scope of cross-examination should be of considerable latitude. Nevertheless, despite the liberal rules of evidence, non-material and degrading matter not pertinent to the investigation as well as crossrecrimination should not be permitted. If witnesses are not called to testify at a hearing but rather are interviewed privately, parties do not have the absolute right to be present for cross-examination. However, the party must be afforded the opportunity to question such witnesses and submit statements elicited from them as evidence.

5. "To testify as a witness."

If the party is charged with an offense relating to the matter under investigation, he cannot be compelled to testify at a court of inquiry unless at his own request; subject to this exception the party may be called as a witness and he must take the stand and testify,20 however, he cannot be compelled to incriminate himself, to answer questions which tend to incriminate him or to make a statement or produce evidence, the contents of which is nonmaterial to any issue under investigation and may tend to degrade him." If such party is suspected of an offense he must be warned of his rights under

20. JAG Manual, sec. 0305a. 21. JAG Manual, sec. 0305b.

Article 31, Uniform Code of Military Justice. A military investigation other than a court of inquiry cannot compel a non-military party to testify." 6. "To refuse to incriminate himself, and to refuse to make any statement regarding any offense of which he is suspected."

7. "To make voluntary statement himself, oral or written, to be included in the record of proceedings or investigative report."

8. "To make an argument at the conclusion of presentation of evidence."

Such argument may be written or oral, sworn or unsworn, and need not follow any particular format.

In courts of inquiry, a party has two additional rights:

1. "To challenge members of the court of inquiry for cause stated to the court." 23

2. "If charged with an offense, to be a witness at his own request and not to be called as a witness in the absence of his own request."

99 24

In addition, if the investigation is inquiring into the circumstances surrounding the disease or injury of a member of the armed forces, the service member must be advised that he cannot be required to sign a statement relating to the origin, incurrence or aggravation of any disease or injury he may have. Any such statement against his own interest which an individual is required to sign without first receiving this warning is invalid.25

Similarly, any adverse evidence obtained solely as a result of such a statement will also be considered invalid.

If the investigation is to be used as a pretrial investigation under Article 32, Uniform Code of Military Justice, the party is entitled to a copy of the record,26 otherwise there is no mandatory requirement that a party be given a copy of the record although the party must be permitted to examine the investigative report upon its completion.

Section 0304e of the JAG Manual requires that in those proceedings wherein a verbatim transcript is not provided, the substance of the advice given to a person designated as a party should be reduced to writing and that the party shall acknowledge therein that he has been informed of his rights and indicate any waivers thereof.

Far too frequently, parties are requested to sign acknowledgements of their rights with waivers thereof at the outset of the investiga

22. JAG Manual, secs. 0417, 0509.

23. JAG Manual, sec. 0414; see MCM, 1951, par. 62f. 24. JAG Manual, sec. 0305. 25. JAG Manual, sec. 0306. 26. JAG Manual, sec. 0304f.

tion. Occasionally, an investigation may uncover information which will tend to implicate a party to a far greater degree than he initially anticipated; or testimony may be offered wherein a witness tends to wrongfully place the entire blame for the incident on a particular party. Under such circumstances, a party may not know what rights he will desire to exercise or waive until he studies all the adverse evidence accumulated by the investigating officer.

As soon after his designation as practicable, the party should be informed of his rights and should execute a detailed acknowledgement that he was so advised. The party should not be requested to indicate those rights he intends to exercise and those he intends to waive until he has had the opportunity to examine all the adverse evidence accumulated by the investigation. For only then can he make a proper election regarding party rights, at which time he should execute a dated acknowledgment disclosing those rights waived, those rights accorded and those rights not waived and not accorded. In the event the party indicates that he was not permitted to exercise certain rights, and prejudice is shown thereby, the issue will normally be resolved in the party's favor. However, it is recognized that a party though offered the opportunity to exercise certain rights may unreasonably procrastinate with the result that compliance becomes impossible. Once a party has been advised of his rights, it is incumbent on him to take positive action regarding the exercise of those rights, and the investigating officer should make this clear to the party. If it is evident that the responsibility for the failure to exercise certain party rights rests primarily with the party, then the party's actions will be considered tantamount to a waiver of those rights. Any information of this nature should be noted in the preliminary statement of the investigative report.

If additional investigation is ordered by reviewing authority and further adverse information is adduced, the party is again entitled to the full exercise of his rights and an appropriate signed acknowledgement should be appended to the additional investigation.

FAILURE TO ACCORD PARTY RIGHTS

The provisions relating to party rights have been enacted to be used rather than abused. Far too frequently, investigative reports containing adverse party determinations will be submitted and the party either has not been accorded his rights or the report fails to contain

the necessary acknowledgement as required by section 0304e of the Manual of the Judge Advocate General.

If the investigative report lacks only the formal acknowledgement, the convening authority will be requested to obtain one. Difficulties and unnecessary delay may result, inasmuch as the party may have been transferred, may refuse to submit the acknowledgement, or may have been discharged from the service. No legal adverse opinion relating to line of duty-misconduct will be rendered by the Judge Advocate General absent such written acknowledgement unless the report contains indisputable evidence (e.g., affidavits) that the party was accorded his rights and permitted to exercise those not waived.

Failure to accord party rights to a person whose conduct becomes subject to inquiry may preclude use of the record as evidence and may require return of the record to the convening authority to permit the member to make a statement in rebuttal concerning any recommended adverse action other than disciplinary action, and if he makes substantiated contentions which are not repudiated in the record, further investigation may be required."

Section 0304d of the JAG Manual by its innocuous language offers little criteria whereby the effects of a failure to provide party rights can be accurately measured. It contains no provisions for persons who have a "direct interest" in the investigation. It does suggest that it is not always fatal to deny a party his rights and that under certain unspecified situations adverse determinations may be made although a party has never been afforded the opportunity to submit evidence in his behalf. It thus fails to provide any guidelines to the question "when?" which is raised by its permissive language. Nevertheless, the actual policy followed is one which strives to insure that a party is given the opportunity to fully exercise his rights.

In each situation where an adverse determination may result and a party has not been accorded his rights, either in part or in toto, the Judge Advocate General as a matter of course will return the report requesting that the party be accorded those rights which he does not choose to waive. Admittedly, at the stage when subject report is received by the Judge Advocate General, it has passed through the chain of command and a considerable time period has elapsed. As a result, witnesses or physical evidence may be unavailable. It is thus evident

27. JAG Manual, sec. 0304d.

(Continued on page 82)

FOR

'OR THE PURPOSES of this article, let us assume that you are sitting as a member of a court-martial or, perhaps, you have been appointed as a counsel to prosecute or defend an accused being tried by a military court. At the trial the accused pleads guilty. His plea of guilty is fully explained and it is accepted by the court as voluntary and provident. Can the accused, thereafter, at any time, during his trial, change his plea to not guilty, so as to place the traditional burden upon the government to prove his guilt of the offenses charged? Or, suppose, after the same guilty plea, the law officer (or president of a special court-martial) determines, for no stated reason, to change the plea to not guilty. This despite a clear insistence by the accused that he is guilty, and that his plea is made understandingly and providently. Can his guilty plea be changed to not guilty over his insistent objections? Can he change his guilty plea at will? Can it be changed against his will? Does the accused have a right to refuse or to obtain a change of his guilty plea? At first glance, it would seem that an accused, "presumed to be innocent until proved guilty", could always, at any time (and for any reason), change his plea to not guilty. Such is not the case. Similarly, it would seem that an accused ought to always be able to "bare his soul" and "repent" by the route of a judicial admission of guilt. This also is not true-as we shall see.

Digressing somewhat from our specific inquiry, we note that paragraph 70b, MCM 1951, and Article 45 of the Uniform Code of Military Justice, provide us with certain beginning guidelines related to situations involving the change of a guilty plea. Paragraph 70b, MCM 1951, at page 107 provides, in applicable part:

Whenever an accused, in the course of trial following a plea of guilty, makes a statement to the court, in his *Commander Charles J. Mackres, USNR, is presently assigned to the U.S. Navy-Marine Corps Judiciary Activity, Washington, D.C. He received his LL.B. degree from the University of Indiana in 1942 and is admitted to practice before the Supreme Court of the State of Indiana, Federal District Courts for Northern District of Indiana, the Supreme Court of the United States and the United States Court of Military Appeals.

testimony, or otherwise, inconsistent with the plea, the court will make such explanation and statement as the occasion requires. If, after such explanation and plea, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment as if he had pleaded not guilty . . . When, after a plea of guilty has been received, the accused asks to be allowed to withdraw it and substitute a plea of not guilty or a plea to a lesser included offense he should be permitted to do so. (Emphasis supplied) Article 45 of the Uniform Code of Military Justice provides:

1

(a) If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. (b) A plea of guilty by the accused shall not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. (Emphasis supplied)

Reading these two sources of military law together, it would appear that they both state that in the event of an unresolved inconsistency following a guilty plea or a determination that the prior guilty plea was entered involuntarily, improvidently or through lack of understanding, the guilty plea shall be changed to not guilty. Although only generally applicable, and not within the specific scope of our inquiry here, the decisions of the Court of Military Appeals are legion declaring that a post-plea showing of inconsistency, involuntariness, improvidence," or

1. MCM, 1951, par. 70b.

2. UCMJ, art. 45, 10 USC 845.

3. United States v. Stanaway, 12 USCMA 552, 31 CMR 138 (1961); United States v. Hamill, 8 USCMA 464, 24 CMR 274 (1957); United States v. Welker, 8 USCMA 647, 25 CMR 151 (1958).

4. United States v. Butler, 9 USCMA 618, 26 CMR 398 (1958); MCM, 1951, par. 70a.

5. United States v. Henn, 13 USCMA 124, 32 CMR 124 (1962): United States v. Fernengel, 11 USCMA 535, 29 CMR 351 (1960).

8

6

lack of understanding requires a change of a guilty plea to one of not guilty at trial, or, on review, action which is not incompatable therewith. Such "curative" action, on review, may require dismissal of the charges,' dictate a rehearing or permit approval of an "uncontaminated" lesser included offense. Article 45, UCMJ, extends this required action to situations, also of no particular applicability to our accused here, involving irregular pleadings, failure or refusal to plead, and to offenses involving the death penalty. There is a particular interest, however, with regard to our specific area of inquiry, in that portion of paragraph 70b declaring that where an accused "asks to be allowed to withdraw" his guilty plea and substitute therefor a plea of not guilty or a plea of guilty to a lesser included offense, "he should be permitted to do so."

Returning to the specific question at hand— "does an accused have an absolute right to refuse or to obtain a change of his guilty plea?". let us first turn to the less frequent of the two situations, wherein the accused's guilty plea is changed, contrary to his objections and his insistent declaration of providency and understanding, to one of not guilty. The rule expressed in paragraph 70a of the Manual for Courts-Martial states, unqualifiedly, that "the court may refuse to accept the guilty plea." 10 The law officer (or president of a special courtmartial) has a duty to make decisions 11 and an absolute right to refuse to accept a plea of guilty regardless of a claim or appearance of providency, understanding or voluntariness. The accused has no vested interest in a guilty plea and a withdrawal of that plea against his desires can effect no legal prejudice with respect to the findings. 12 As our courts have recognized that "findings and sentence are completely separate and distinct portions of military judicial procedure",13 the only possible prejudice, at a trial, "then and there in progress", might be one related to the sentence because of the existence of a pretrial agreement and a deprivation

6. United States v. Zemartis, 10 USCMA 353, 27 CMR 427 (1959); United States v. Harrell, 14 USCMA 517, 34 CMR 297 (1964). 7. United States v. Stanaway, supra note 3; United States v. Wille, 9 USCMA 623, 26 CMR 403 (1958).

8. United States v. Henn, supra note 5; United States v. Hamill, supra note 3.

9. United States v. Epperson, 10 USCMA 582, 28 CMR 148 (1959). 10. MCM, 1951, par. 70a.

11. United States v. Wilson, 7 USCMA 713, 23 CMR 177 (1957). 12. CM 401819, Scarbrough, 28 CMR 527 (1959). The concurring opinion, however, suggested that a court should not act capriciously or arbitrarily.

13. United States v. Miller, 10 USCMA 296, 27 CMR 370 (1959).

of its beneficial punishment limitations.14 This relatively untroublesome obstacle, however, is "curable", if appropriate, by action reducing an adjudged sentence which exceeds a pretrial agreement. Notice the phrase "then and there in progress." The only foreseeable limitation on this absolute authority to enter a not guilty plea is in the case of a rehearing ordered as to the sentence only. Although not squarely decided, there is some indication ("aside" comment, rather than ruling) that the rehearing court, in that instance, may be powerless to extend the rehearing order to a trial of the accused as to his guilt or innocence.15 Therefore, except possibly at a directed rehearing on the sentence only, the law officer (or president of a special court-martial), may, for reasons stated, or for no reason at all, change a guilty plea to one of not guilty, even though an accused may honestly and logically insist to the contrary. While, certainly, a "sound" guilty plea should not normally be changed arbitrarily or capriciously, the accused, nevertheless, has no legal standing to prevent such a change from being made.

On the other hand, however, where the accused requests to be allowed to change his plea to not guilty there are additional considerations. As well stated in the Friedman case:

16

The issue of a defendant's guilt or innocence is not involved in an application for leave to withdraw a plea of guilty. Upon such an application a trial court is not required to try the issue of guilt or innocence. The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered or whether it was, at the time of its entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding it ought not to be permitted to stand."

In the Friedman case, the accused was found guilty on his guilty plea and awarded a maximum sentence. Two days later he moved to vacate his sentence so he could withdraw his plea and stand trial. His reasons were that he misunderstood the seriousness of the offenses charged and that his counsel had advised him that he would only receive a small fine. The trial court denied the application. The Circuit Court of Appeals sustained the trial court's denial, declaring that there was no legal right (Continued on page 83)

14. CM 397051, Skinner, 24 CMR 427 (1957); CM 395163, Yelverton, 26 CMR 586 (1958).

15. United States v. Kepperling, 11 USCMA 280, 29 CMR 96 (1960); CM 397509, Collier, 26 CMR 529 (1958).

16. Friedman v. United States, 200 F.2d 690 (8th Cir. 1952). 17. Id. at 696.