opportunity to cross-examine and should there be no further evidence of record supporting the information supplied by the witness, the Judge Advocate General will give the party the benefit of the doubt. However, valid evidence of record which may be harmful to the party will not be precluded solely because the party had not been initially afforded his rights. All evidence is fairly weighed in light of the entire report. When there is an initial deprivation of party rights and it is impossible to afford the party all his rights, the Judge Advocate General will attempt to evaluate the report so as to place the party in the same position he would have been in had he initially been accorded his rights.

Although a party may be accorded his rights as set forth in section 0304 of the JAG Manual and although the party has been properly warned under Article 31, Uniform Code of Military Justice, no signed statement submitted by him relating to injuries incurred by him will be considered unless subject report contains an acknowledgement in accordance with the requirements of section 0306, JAG Manual. Should the evidence submitted by the party require further investigation and should circumstances preclude such an investigation, the doubt engendered thereby will be resolved in the party's favor.

SENIORITY OF INVESTIGATING OFFICERS TO PARTIES

As a final caveat it should be emphasized that no member of a fact finding body should be junior to a party. If a party designated during the proceedings is senior to a member, the convening authority should be notified so he may make an appropriate revision in membership if practicable." The rules of seniority do not apply to counsel except when the junior member of a board or investigation is also acting as counsel.

In the event that it is not practical to abide by the rules of seniority, the convening authority should offer an explanation in his action." When a report is reviewed and it is evident that a party is senior to one or more of the investigating officers, and no explanation is offered, the report will be returned to the convening authority for appropriate comment. It is improper for a junior officer to pass judgment on his senior, and every effort should be made to insure that all investigating officers are senior to all the parties.

28. JAG Manual, sec. 0208c.

29. Ibid.

CONCLUSION

JAG Manual investigations are an established Navy-Marine Corps fact of life. As the probabilities indicate that the line officer will be called upon to serve in the capacity of investigating officer early in his career, he should familiarize himself with the overall broad JAG Manual requirements.

Far too many investigations are returned for additional proceedings either because the original investigation was lacking in completeness or because a party was not properly accorded his JAG Manual rights. In those instances where additional action is required, the cost in money, man hours and inconvenience to all concerned far exceeds what it would have been had the investigation been initially acceptable.

Chapter III of the Manual of the Judge Advocate General relating to party rights was enacted to be utilized. Circumvention or avoidance of its provisions whether intentional or accidental will often result in considerable waste which could have been avoided had more attention been devoted to the basic report.

One of the basic foundations of our form of government is the assurance that no person will be deprived of life, liberty or property without due process of law. Due process of law assures

a person the right to receive a fair hearing when he stands to lose personal or property rights. The party rights requirements contained in the Manual of the Judge Advocate General extend this right to administrative naval service investigations; for an adverse recommendation contained in such an investigation may result in individual lost time, loss of pay, loss of disability benefits, or the imposition of disciplinary action. In addition, denial of party rights regardless of intent can easily lead to unwarranted criticism of the military's treatment of its personnel and offers fodder to those critics who are ever striving to stir up issues which tend to malign the integrity of the military establishment.

CHANGE OF GUILTY PLEA

(Continued from page 72) in the accused to withdraw his plea, that the burden was on the accused to show a basis for withdrawal and that the granting or denying of such a motion was within the sound discretion of the trial court.

Under the Uniform Code of Military Justice an application in a military court to withdraw a previously accepted guilty plea is treated much the same as under the Federal law illustrated

and det ned in the foreging Friedman case. The decisions of our Boards of Review and the Court of Military Appeals have developed our "change of plea" law which is basically set out in paragraph 70b of the Manual and Article 45a of the Code, both of which have been previously discussed.

The Boards of Review of the different services for some time differed in their concept of the "right" to change a guilty plea. Two Army decisions, 18 construing Article 45, UCMJ, and paragraph 70b of the Manual, declared that the accused possessed an absolute right to change his guilty plea at any time prior to sentence. An Air Force decision," reasoned that the "should" in paragraph 70b of the Manual (emphasized above), did not give the accused an unqualified right and that a change of plea, during trial, was a matter within the discretion of the court. The Air Force board went on to declare that "if pleas could be withdrawn without reason there would be no stability to trial after a plea of guilty." 20 A recent Court of Military Appeals decision 21 has, to a substantial degree, adopted the latter interpretation so as to deny the accused the absolute right to change his guilty plea after announcement of findings and before the imposition of sentence-without reason. In other words, a request for change now falls within the sound discretion of the law officer (or president of a special court-martial). He must decide, subject to review for abuse of his discretion, whether there is good reason for the requested change. While a change is not a "right" afforded to an accused, a request for change should, nevertheless, be liberally viewed and, generally, given favorable consideration.

As in most matters legal in nature, there are usually exceptions to any rule or proposition stated. With regard to the "right" to change a guilty plea, as above discussed, there are at least two exceptions worthy of mention. If the accused has been otherwise advised by the court as to his right to change his guilty plea, that advice may effectively modify the law which would otherwise be applicable to the case. For example, if the law officer advises the accused that he may withdraw his plea anytime prior to the announcement of sentence (a gratuitous instruction not infrequently given) the accused can rely on that "right" and can, without reason, change his plea within the latitude of the advice

18. Yelverton, supra note 14; CM 401044, Blackmon, 27 CMR 783 (1959).

19. ACM S-11379, Hodges, 20 CMR 754 (1955).

20. Id. at 760.

21. United States v. Politano, 14 USCMA 518, 34 CMR 298 (1964).

23

given.22 Also there is the problem of what to do at a rehearing on the sentence only. The law is not fully developed in this area but it would appear, at least, that a denial of a request for a change of plea, at this time and absent any showing of a patent inconsistency or a probability of some defense, is not improper or an abuse of discretion. Although the Court did not so rule, it did tacitly indicate its approval of the proposition that a court, at a directed rehearing on the sentence only, may be powerless to allow the accused to change his plea under any circumstances. In the event of a clear showing, at the sentence rehearing, of circumstances indicating an entitlement of some relief, the Court suggested that the court could:

halt the proceedings at that point, advise the convening authority in the premises, and that the latter should then return the case with the record of the rehearing completed to the point of adjournment to the Board of Review for its further consideration." It is suggested that the reasonable inference from the foregoing is simply that at a rehearing on sentence only the court should never effect a change of plea. It should either deny the request or, under appropriate circumstances, terminate the proceedings and refer the matter back to the convening authority.

Summing up, then, does an accused have an absolute right to refuse or to obtain a change of his guilty plea? The clear answer is "No." The court, in its discretion, can change or refuse a request to change the guilty plea at any time, except perhaps in the situation of a rehearing mandate on sentence only, or where a particular piece of gratuitous trial advice has been given by the court to the accused so as to afford him a "right" which he may be entitled to rely on and

use.

As aptly stated by Chief Judge Quinn, “a criminal trial is not a game." 25 While the accused is always entitled to a fair trial he should not be permitted to play fast and loose with a court-martial. While not endowed with an absolute right to refuse or to obtain a change of his guilty plea, a sound and liberal exercise of discretion by law officers and presidents of special courts-martial should lead to the end that the interests of fairness and justice will be served in all instances.

22. Yelverton, supra note 14.

23. United States v. Kepperling, supra note 15; Yelverton, supra note 14.

24. United States v. Kepperling, supra note 15 at 285, 29 CMR at 101; accord, Collier, supra note 15.

25. United States v. Politano, supra note 21 at 523, [citing United States v. Wolfe, 8 USCMA 247, 24 CMR 57 (1957)].

U.S. GOVERNMENT PRINTING OFFICE:1965

WITH

ITHIN THE MILITARY community, the maintenance and preservation of discipline among men traditionally has enjoyed a position of primacy in the hierarchy of values subscribed to by the society of soldiers. Within the civilian sphere, however, the term "discipline" attracts little allegiance as a societal aspiration and only in the most sterile sense is it considered in any wise a meaningful estimate of the degree of maturity attributable to a modern state. Indeed, in some quarters a concept of civilian social order which is founded upon mere "discipline" invites an image of a society antithetically opposed to the Anglo-Saxon vision of liberty and human dignity in perpetuity. Compatible with these lofty objectives, however, is the principle, constitutionally woven into the fabric of American society, that order is best achieved through justice equally administered under law. Thus, a fundamental dichotomy of ancient origin exists between two mutually suspicious factions of modern government. Although the precise line of demarcation is frequently undiscernible to the naked eye, one is constantly aware of a juxtaposition formed by the military and civilian minds with respect to the methods of creating and preserving order within the respective social structures: the former espousing the proposition that emphasis must be placed primarily upon discipline as a precursor of military order, while the latter embraces the principle that societal security is only possible where sole and uncompromising allegiance is sworn to equal justice under law.

Over the years the development of military law, in large measure, may be viewed as a reflection of the inevitable friction occurring between the aforementioned principles of governance. Curiously enough, however, it was not until the advent of the Twentieth Century that civilian advocates initially sought to impose upon the military a more liberal standard of internal management. In response, the uniformed serv

*Lieutenant Johnson is presently assigned to the Military Justice Division, Office of the Judge Advocate General. Lieutenant Johnson received an A.B. degree from the University of Michigan and an LL.B. degree from the University of Virginia. He has been admitted to practice before the courts of Virginia and Michigan and the U.S. Court of Military Appeals.

ices offered consistent and vigorous opposition from the inception of civilian intrusion until the arrival of the Uniform Code of Military Justice and beyond. It is the purpose of the ensuing discussion to consider a single aspect of this frequently painful struggle-ie., the role of the military commander in the administration of military criminal law. In a very real sense, the limited question of the degree of permissible participation by command in the administration of military jurisprudence forms a most appropriate crucible within which the more basic dilemma created by the confrontation between discipline and justice may be examined. The consideration of command control and the controversy arising therefrom will be accomplished through an examination of the problem as it has been debated within two prominent governmental forums, the Congress and the Court, concluding with a brief assessment of the future course of military law as revealed through recent developments concerning the question of command influence. In so doing, it is predicted that credence will once again be afforded the philosophy that opines that all history, including the hoary friction between military and civilian societies, may be viewed as a tension between heritage and heresy which the laws seeks, in groping fashion, to mediate.

I

THE CONGRESS

Prior to the First World War, military law was embodied principally within two legislative vehicles the origins of which may be traced to the earliest years of the American union 1i.e., The Articles for the Government of the Navy 2 and the Articles of War. As noted previously, little criticism was leveled at these codifications until the first great citizen's army was drafted into the service of the United States.

1. See Morgan, The Background of the Uniform Code of Military Justice, 6 Vand. L. Rev. 169 (1953).

2. Act of March 2, 1799, Ch. 24, 1 Stat. 709, as amended. 3. Act of Sept. 29, 1789, Ch. 27, 1 Stat. 95, as amended.