Reminiscences of a Senescent Former JAG Officer

July 14th, 2010

By Dan Miller

When I went away to college in 1959, I joined the Army ROTC because I was concerned about the probability of being drafted and preferred to serve eventually as an officer rather than as an enlisted man. I had no particular love of the Army, even though having lived for years in the Washington, D.C. suburbs had had many military officers as neighbors.

I liked and respected the officer and enlisted ROTC cadre, but hated most of the rest: close order drill, marching around and that sort of soldier stuff once a week because I could see no point to it. I understand it now, but that’s for another article preferably written by someone who understands initial military training far better than I do.

Upon graduation in 1963, I was commissioned a second lieutenant in the Army Ordnance Corps but got a postponement of call to active duty to attend law school. Three months after graduation from law school in 1966, I was called to active duty as a first lieutenant in the JAG Corps (credited with three years of service for pay purposes, which was nice); since the Army was going to start bringing in new JAG officers as captains, those of us already in were promoted to captain so that we would have earlier dates of rank than the newbies.

JAG school was separated from my old law school in Charlottesville, Virginia only by a parking lot, so being there was sort of like being at home. Following JAG school, I was assigned to the Eighth U.S. Army/United Nations Command headquarters in Seoul, Korea. After a few months, I was able to prevail upon the Staff Judge Advocate (SJA), Colonel M., reluctantly to transfer me down the hall in the same building to the Eighth Army Support Command, which exercised general court martial jurisdiction over all rear echelon troops; I wanted experience in the criminal justice area and wasn’t going to get it where I was. He eventually obliged, and I was first assigned to prosecute general courts martial and, once I seemed competent, to defend. That was Army policy and a very good one. I am unaware of any comparable policy in the civilian criminal system.

After several months, the Support Command Deputy Staff Judge Advocate (a major’s slot, held by a senior captain) position became vacant because the Deputy SJA had been caught in a compromising situation with a young Korean enlisted man in a hotel room and was sent back to the United States within a very few days. When I was told by some of my fellow officers that I was the next senior captain and very likely to succeed him, I was not happy. We all considered the SJA to be a bit of a jerk, referred to by most of us out of his hearing as a pig f****er; he and I had had no problems, and that day I became his deputy and the chief of military justice. My office was moved to another adjoining his, and the door between our offices was kept open at all times. I immediately ceased to refer to him as a pig f****er or otherwise disrespectfully even in private because that could have destabilized our short chain of command. Even as a very junior officer, I knew that much.

We got along very well even on one occasion when a captain I had earlier assigned to prosecute or defend (I don’t remember which) a general court martial emerged shortly before the start of the trial from LTC M.’s office nearly in tears (literally), having been chewed out mercilessly for something. I told LTC M. that what he had done was wrong — sending someone still close to tears to prosecute or defend a general court martial was simply stupid — explained why, and asked that he consult me before doing anything similar to any of the officers for whom I had responsibility. He said that had not been aware of the court martial, apologized and promised to consult me in the future. That greatly increased my respect for him and probably for the Army in general.

With no memorable exception, every Army officer with whom I came in official contact was a good and honorable gentleman. A full colonel, the staff judge advocate for whom I first worked during my initial assignment at Eighth Army, was one of the best. Soon after I arrived in Korea, I became aware that a pittance (maybe $30 per month) was being deducted from my pay (about $800 per month) for extra rations and service at the officers’ field ration mess. We were not required to eat there, and there were several officers’ clubs on post where the food was better and at which I preferred to eat. I discovered that the deductions were required by an Eighth Army regulation and, after a bit of research, decided that it was unlawfully in violation of Army regulations, which permitted such deductions only in forward areas, such as the division areas well to the north of Seoul. I presented my case to Col. F., the SJA, who had only months previously given his blessing to the Eighth Army regulation. He agreed that I was right and that his advice had been wrong. He stood up for me, and resisted a suggestion that I be transferred to one of the divisions; the regulation was changed. For a colonel, the legal advisor to the commanding general, to support a lowly captain in this situation required tremendous integrity and the respect I already had for him increased.

Eventually, I rotated to a new assignment at the Government Appellate Division near Washington, D.C. and worked for another great officer, LTC R. Along with a dozen or so other JAG officers, I wrote briefs supporting the government in general courts martial appeals and argued many cases before the Board of Review (a panel of senior Army JAG officers) and also before the civilian Court of Military Appeals. This work gave me far better appellate experience than I would have had as a young attorney in civilian practice. I enjoyed it a lot.

I was directed to draft a brief seeking Supreme Court reconsideration of its then new O’Callahan decision, voiding court martial jurisdiction over military personnel in the United States for civilian type offenses committed off post and while off duty. It was, in my opinion, a poorly reasoned decision (Justices Harlan, Stewart and White had dissented from the majority opinion) and, aside from its other infirmities, one which would likely subject soldiers at some bases in the United States to criminal justice systems far inferior to that of the military; this was in 1969 and Jim Crow was not then a only device used to protect crops from crows. The decision was ultimately made by the Judge Advocate General not to seek reconsideration, which I considered wrongheaded, but it obviously was not my decision to make.

The UCMJ was modified in 1968 to provide for special courts martial resembling to the extent possible general courts martial. When the new system began to go into effect I asked LTC R. whether he would consider an application for the new judges’ course at the JAG school and subsequent assignment as a special court martial military judge. We were riding back from the Pentagon in a bus, and the conversation was quite informal. He agreed, and it happened. After completion of the rather thorough course, I was assigned as the full time special court martial military judge for Japan and Korea. Shortly thereafter, LTC R. (soon thereafter a full colonel, as I recall) was assigned as the SJA at I Corps, in Korea; to the extent that a captain and full colonel can be become friends, we did.

I was carried on the morning report at Department of the Army in Washington and for all practical purposes had no boss. There were also some part-time special court martial military judges who had full time assignments in other capacities.

During my one-year tour of duty, I presided over more than three hundred special courts martial, all but one in Korea. Since it was necessary for me to travel throughout the entire country, I was given the transportation priority of a full colonel and whenever it was necessary, frequently, to travel a significant distance went by chopper or fixed wing aircraft.

With the then recent modifications to the UCMJ, an accused had a choice of trial by judge alone or by a presiding judge and a panel of officers (or, in the case of an enlisted man if he requested, including some enlisted men). After the first few trials with panels, most of my cases were tried by judge alone, which meant that I had to decide on guilt or innocence and, if the former, to impose sentence. I thought it was a good and fair system; I was and remain very proud of it and to have been a part of it.

Most of the time, defense counsel were JAG officers. On rare occasions a non-JAG attorney served as defense counsel at the request of the accused. Most were competent but a very few were not. Once, I presided over a case involving a guilty plea by an enlisted man, probably a corporal (E-4) or specialist (also E-4). He had been charged with disobedience of an order from a superior non-commissioned officer to get out of bed and stand formation. As required, I questioned him to determine the provenance of his plea of guilty. He stated that he had been ordered by an Army physician to remain in bed due to a broken or fractured bone in his leg. I rejected the guilty plea and we proceeded to trial. Based on his testimony and that of the physician, I found him not guilty; it was not a question of reasonable doubt as to his guilt, he was patently innocent. I also told defense counsel what I though of his competence. That was a very rare situation, and I had no other resembling it.

A few months before my obligatory four year term of active duty ended, I found myself on the list for promotion to major. Promotions had slowed down a bit by then, but had I sought to remain on active duty and perhaps asked for a Regular Army commission (I was a reserve officer) I would likely have been promoted within six months or so.

I didn’t and sometimes wish that I had. Looking back, a far easier process than looking forward, service in the military was probably the most professionally rewarding part of my legal career, and I developed a higher regard for the military justice system than for the civilian legal system in general; it persists. Had I remained in the Army, my chances of becoming a full colonel would have been pretty good; I would never have become the Judge Advocate General, then a major general’s slot but now a lieutenant general’s slot, but a brigadier general’s slot would at least have been possible.

It might have turned out badly or well and I shall never know. However, I wish that more young lawyers would consider military service as a career, for at least long enough to make an informed decision on whether it suits them. Many who reject the notion out of hand without exploring it should think further; I wish they would.

(This article was also posted at Dan Miller’s Blog.)

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2 Responses to “Reminiscences of a Senescent Former JAG Officer”

  1. Tom Carter |

    I’ve known many JAG officers, some of them good personal friends. As a group, they’re among the most professional and impressive in the military. As you make clear, a young lawyer couldn’t possibly hope to get the same kind of depth of training and experience during his early years in civilian practice. Beyond that, almost every civilian attorney who has experience working in the military system has only glowing praise for its professionalism and fairness.

    If I can be permitted one “war story,” I was the senior officer of a general court-martial panel in a case that serves as a good example of the fairness of the system. To begin with, the judge was a full colonel who was as professional, knowledgeable, and fair to both sides as any judge could have been. The trial counsel was young but experienced and did a pretty good job. The defense counsel, however, was an impressive young attorney who exemplified the value and integrity of the Trial Defense Service (TDS). (For those who don’t know, TDS lawyers are JAG officers who serve as defense counsels; they aren’t subordinate to local commands but report directly through TDS channels to an Army-level TDS headquarters. That means they aren’t in any sense subject to local command pressures.)

    The commanding general (and convening authority in this case) was well-known to have a certain position on cases of this kind (details intentionally omitted). For that reason, it appeared, the accused was charged under the general Article 134 for having prejudiced good order and discipline. They had a prima facie case under a specific paragraph of Article 134, but that’s not how they charged. In the end, they couldn’t make the “good order and discipline” case, and we unanimously found the accused not guilty. In fact, I took a certain amount of pleasure in reading the verdict. The case was a blow to the commanding general and his command sergeant major; they wanted to make an example of the accused, and we slapped them down, in effect. Someone who doesn’t know how the system works might think the officers (and one sergeant major) on the panel would be in for some retribution or at least criticism. But no — never a word, never a complaint, and my close and almost daily working relationship with the general and the command sergeant major didn’t change one whit.

  2. Dan Miller |

    Tom, thanks for your insights.

    Back in the late ’60s – early ’70s, JAG defense counsel were not separately assigned and were in the same command structure as the SJA, generally at division or corps level or to an administrative support command with authority to convene general courts martial within an Army, as for example, Eighth Army Support Command, commanded by an officer of flag rank. As noted in the article, it was an inflexible policy for JAG counsel to get their experience first as trial counsel and, once adequately seasoned, to do defense work; thereafter they sometimes prosecuted and sometimes defended. If the Trial Defense Service draws from JAG officers first experienced as prosecutors, as I assume that it must, I think it is probably an improvement.

    Back in the JAG judges’ school, we were lectured on command influence and told that within recent memory convening authorities had been relieved of their commands and otherwise disciplined for exercising command influence; it was a definite no-no and I never experienced it, nor was I aware of anyone who had. It was, and I assume remains, a very sensitive subject and no convening authority would jeopardize his career by attempting to exert such influence or by permitting a subordinate to do so. I am delighted, but not surprised, to learn of your experience with the court martial where the convening authority was probably unhappy with the result but did nothing to retaliate, even (I assume) by reflecting his displeasure subtly in an efficiency report or otherwise.

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