This html article is produced from an uncorrected text file through optical character recognition. Prior to 1940 articles all text has been corrected, but from 1940 to the present most still remain uncorrected. Artifacts of the scans are misspellings, out-of-context footnotes and sidebars, and other inconsistencies. Adjacent to each text file is a PDF of the article, which accurately and fully conveys the content as it appeared in the issue. The uncorrected text files have been included to enhance the searchability of our content, on our site and in search engines, for our membership, the research community and media organizations. We are working now to provide clean text files for the entire collection.
The military man who has had The Book thrown at him will always remember lhe impact, if not the name of the volume. For many years, the Navy’s and Marine Corps’ Law Book, studded with scores of Thou shalt not—or else!” admonitions, was unofficially known as “Rocks and Shoals.” But, since 1951, a new book, “Uniform Code °f Military Justice” (UCMJ), has been the law west of the Pecos—and north, east, and south, as well.
Embodying the experience of at least one World war, and published during a police action, it is not surprising that The Book at last seems to have silenced those critics who, Conceding its aptness in peacetime, doubted that it had the stamina demanded in wartime.
But, the Uniform Code is nothing if it is Uot uniform; and, ashore or afloat, in peace or ^ar, it continues to be the cornerstone of utilitary justice, from the training center’s Parade ground to the rice-paddies of Vietnam.
The half-dozen of us who comprised the ^tafF Legal Office, Commander, U. S. Naval Support Activity, Danang (ComNavSupp- ActDanang), from June 1967 to May 1968 saw first-hand the advantages—not to men- tl0n the inconveniences and hazards—of 5^ministering wartime military justice by fhe Book. It is, indeed, a versatile volume, ^biding as much as possible to both the spirit and the letter of its pages, the legal-beagles of ComNavSuppAct anticipated at least one refinement in the law itself.
An example of anticipating developments in the law involved punitive discharges handed out at special courts-martial. Congress passed legislation requiring the accused in such cases always to be represented by a counsel qualified in the sense of Article 27b, UCMJ. When thereafter ComNavSuppAct looked over the cases he had reviewed as Supervisory Authority over the preceding year, only one such accused had not been represented by a lawyer.
To grasp the magnitude of this accomplishment, one has to look at the limited legal manpower and the geographic distribution of the ComNavSuppAct commands for which legal support had to be provided.
Aside from its thousands of personnel in the Danang area, NavSuppAct, has detachments at Tan My, Hue, Dong Ha, Phu Bai, Cua Viet and Chu Lai. Commanding Officer, Enlisted Personnel, Danang, has special court martial convening authority over the men of all detachments except Chu Lai, where Commanding Officer, Enlisted Personnel, Chu Lai, has that authority. In the cases of several detachments, the officers in charge have nonjudicial punishment authority limited by UCMJ, Article 15(b)H. During our tenure in Vietnam, the number of Construction Battalions (SeaBees) in I Corps had grown from
eight to 12, and the original brigade headquarters had been supplemented by one additional brigade headquarters and a regimental headquarters. These units were dispersed generally to the same locations as the Nav- SuppAct, detachments. There was also the SeaBee Maintenance Unit, which looked after advance air strips, such as at Khe Sanh, directly subordinate to the NavSuppAct. Com- NavSuppAct was the General Court-Martial Convening Authority for all of these units. In addition, ships at sea looked with increasing frequency to the staff legal officer at NavSuppAct Headquarters for assistance and for counsel qualified in the sense of UCMJ, Article 27b.
Throughout the period in question, the average number of lawyers in the Staff Legal Office NavSuppAct was six: a Commander, a lieutenant commander, and four lieutenants. Aside from counsel work in courts-martial, these officers were absorbed in the usual pursuits of an overseas staff legal office, including the legal assistance program, administration and review of foreign claims, staff advice to command, review of pretrial investigations and courts-martial, participation in administrative discharge proceedings, and exercise of a special authority to adjudicate personal claims in the amount of $1,000 or less. (This latter was no small task, $80,000 cash having been disbursed under this authority during the period under discussion.) Luckily, however, time to accomplish all assigned tasks had been provided by a routine that called for a 12-hour day, seven days each week.
The initial hurdle to overcome in providing legal counsel where needed was communication. To help meet this need, the Staff Judge Advocate made a point of visiting each new Seabee Commanding Officer when the battalion arrived in order to advise the C.O. concerning availability of service in the matters of military justice, legal assistance, and personal claims. These visits were accomplished by motor vehicle or air, depending upon the location of the battalion. But, for the COs, knowing the location of the staff legal office and the willingness of the judge advocates there to assist was one thing—getting in touch with them was often another.
The communications people in Vietnam are justly proud of a vast telephone network
that reaches out to all installations to bring the promise of voice contact. The system’s users hope some day to be able to pick up an instrument, dial, and get a reassuring busy signal or any other indication that the line is working. But, for the present and the foreseeable future, patience is mandatory and, in fact, will almost always pay off. Communication can almost always be accomplished by using the telephone. Still, there are occasions when the only recourse is either a 15-mile drive or an airlift that results in a face-to-face discussion.
In any event, with or without telephonic communication, it eventually became necessary to “ride the circuit” in order to serve the purposes of justice.
To prepare for and to conduct trials at commands in the immediate vicinity of NavSupp- Act, the judge advocates used a truck assigned to the staff legal office, drew one from the motor pool, or arranged for a ride with the double cab pick-up truck taxi service run by public works department. Ground transportation, subject to the to-be-expected frequency of delays, was usually available.
It was in obtaining the required airlifts that the judge advocates resourcefulness met its greatest challenge. That this challenge was successfully met and overcome is attested to by the fact that after some months the Plans Officer for NavSuppAct, was looking to the staff legal office for airlift support. Our staff legal office was probably unique in that the judge advocates were enjoined to take notes concerning flight arrangements in order to keep their Procedures Manual current. This section of the Manual begins with the chatty: “When a trip to any of the major cities within I Corps is necessary . . . the first place to go is our own U. S. Naval Support Activity Operations Department to see if the . . . airplane may be going your way.” “Major cities” are those places where a fixed-wing aircraft can land.
On several occasions, an airlift organization performed yeoman service. For example, the Officer in Charge of a remote NSA Detachment, accessible only by sea or chopper, was needed as a witness in a pretrial investigation in Danang. The Officer in Charge could not be away from his detachment for more
than a few hours. Arrangements were made to Pick him up with a chopper, deliver him practically to the front door of the hearing room, and return him to his detachment Vvithin minutes after his testimony was complete.
Reference to a specific service by a rotor Vving airlift is not intended to detract from the support provided by the ComNavSuppAct’s Uirplane, which on numerous occasions laid on special flights to get judge advocates where they were needed. There were also countless occasions when Marine Corps and Army aircraft made special flights to accommodate. While the travel section of the Procedures Manual is full of details about who to contact for flights in and out of all the places where Navy Judge advocates might be needed, the last paragraph of the section is a mild enjoinder to gather more sources of support: “One final word. If you have any friends who fly helo or fixed wing, they can help to get you a ride. There are countless operational flights daily that have room for you if you know about them.”
New arrivals in the staff legal office viewed their surroundings and the “old hands” Vvith mixed emotions. It seemed incongru- °us to them to see a young judge advocate Preparing for a field trip by packing his briefcase, donning his flak jacket and steel helmet, strapping on a cartridge belt from yvhich a full canteen was suspended and drap- >ng an M-16 over his shoulder. The image Presented by this young stalwart peering out from under his helmet through his Navy issue sPectacles might have been amusing but for the sound of distant gunfire. Not surprisingly, new arrivals quickly adopted the same sartorial style for their field trips.
Getting there was indeed, half the battle frr the judge advocates, but, on occasion, the very mobility of some of the other naval per- s°nnel proved a problem. For instance, there wns a case of homicide in which it was suspected that a member or members of one of the coastwise utility boats might be involved. (A thorough investigation resulted in no ser- Vlcemen being prosecuted for the homicide.) A special agent from the Naval Investigative Service Office and a judge advocate had been fluickly dispatched to the scene, but before they arrived the boat had departed in the course of her vital mission of carrying supplies. Since no specific suspect had been identified, the entire crew had departed. The pattern for the investigation was set by the circumstances. Crew members of the boat were interviewed at one terminal or another while the boat carried out her assigned tasks, keeping the supplies moving.
Inevitably, on foreign soil, incidents arise involving American servicemen and the local populace. Vietnam is no exception, and our judge advocates found the language barrier kept them tethered to their translators. Vietnamese is a language rife with stumbling blocks for the foreigner. It is a tonal language containing almost no polysyllabic words. A single arrangement of two, three, or four letters will have as many as six or more totally unrelated meanings depending upon the inflection. It sometimes seems that some of the inflections are beyond the capability of the American tongue to pronounce or the American ear to distinguish. Nor has the language been long in the American catalogue of studies. Finally, none of the Vietnamesespeaking Americans available to the Navy judge advocates possessed the particular talents needed by a courtroom interpreter; and most of the Vietnamese available for translator duty, of course, were even less likely to be familiar with legalese. The judge advocates, then, grew accustomed to listening to a Vietnamese witness chatter excitedly for five minutes, only to have the Vietnamese interpreter translate: “She say she don’t know.”
The judge advocates set about searching out interpreters who could provide the needed services. Two Navy enlisted men who had studied at the language school were very helpful. After a time Dame Fortune really proved to be a lady—a young Vietnamese lady—who had graduated from law school at the University of Saigon. She had studied American jurisprudence under the tutelage of judge advocates from the Staff of USMACV and was apprenticed in the practice of law in Danang. She had a good command of English and her professional training gave her an insight which she put to use in translating judge advocates’ questions into the most appropriate Vietnamese phrases. More than that, she and her employer became good friends of the
judge advocates and provided a window of sorts on the local populace, a window otherwise somethat fogged over by the fact there was no liberty authorized for members of the U. S. Armed Forces in Danang.
Translation was not the only problem presented by the fact that Vietnamese witnesses were frequently required for trials or trial preparation. Locating a known witness often was a major task. Indeed, finding him twice in the same location sometimes proved impossible. The Vietnamese are somewhat less than eager to participate in judicial proceedings, preferring to let matters ride if accommodation cannot be accomplished without official intervention. Therefore, unless the witnesses were in the employ of the U. S. forces, they attempted to avoid being found in some cases. At other times the war disrupted people’s routines so that delays in finding them were inevitable.
Sometimes incidents occurred in remote areas, and the accused serviceman was the only English-speaking person involved. On one occasion, a SeaBee working with a small detachment constructing a hospital for the local community was accused of raping a Vietnamese woman. The only witnesses to the events surrounding this accusation were Vietnamese. The language barrier, as usual, was overcome by employment of translators, but the location was accessible only by helicopter. Co-ordination was established with the local contingent of the National Police, and the witnesses were gathered and interviewed in the preparation for a pretrial investigation.
On the day the pretrial investigating officer scheduled to conduct his hearing, however, air transportation suddenly became unavailable because the choppers were employed in the more pressing requirement of counteracting the Tet offensive. In that offensive the locale of the intended investigation was temporarily overrun by the Viet Cong. Although telephonic communication was maintained with the Americans there, it was some time before it could be determined that the witnesses were alive and available: thereafter the investigation was continued to its proper conclusion.
Frequently, having located Vietnamese witnesses and interviewed them, and even having recorded their testimony in a pretrial
A graduate of the University of Minnesota in 1954, Lieutenant Commander Toms received his LL.B. from Willi®0 Mitchell College of Law if 1957. He was Assistant Legal Officer at NAS Quonset Point from 1958 to 1961; Legal Officer at USNS, Bermuda, fro® 1961 to 1964; International Law Instructor, JAG School, U. S. Army, Charlottesville, Virginia, from 1965 to 1967; Assistant Staff Legal Officer, ComNavSuppAct- Danang, in 1967-1968; and, since 1968, Staff Judge Advocate, NTC, Orlando, Florida.
investigation pursuant to UCMJ, Article 32, there still remains the problem of getting the witness to the courtmartial. Normally, when ground transportation was appropriate, this presented no particular difficulty. But when it became necessary to persuade a Vietnamese peasant in some remote locale to board a helicopter or airplane, it was an entirely dif' ferent matter. To convince the individual that he was not being torn forevermore from his paddy, the only world he knew, was sometimes a herculean task. Yet, somehow, like the Canadian Mounties, the judge advocates always managed to bring in the witnesses.
If getting there was half the battle, the other half was sometimes the battle itself. For example, one day a Chinook seemed to be taking an inordinate amount of time in getting a trial team to one of the outlying commands- When the chopper finally set down, the load- master shouted, “Make it! This place has been under rocket attack!” As soon as the chopper was clear of passengers, it took off. The muddy landscape had an eerie aspect. The tiny plywood shack which served as a passenger terminal had none of the usual groups of Marines loitering about it awaiting transportation- The usually bustling traffic on the perimeter road was nonexistent. Upon closer approach, the trenches revealed men in flak jackets and steel helmets just beginning to get restless in their cramped sanctuaries.
Since no rockets were incoming at the moment, an effort was made to contact the unit that was convening the court-martial and arrange transportation for the trip of three or four miles. There was no waiting in line to get
to the telephone, and—will wonders never cease?—it worked. It wasn’t long before an intrepid yeoman/driver appeared with a truck to pick up the trial team and deliver the members to the task at hand.
During the course of the trial, in which a man was charged with breaking and entering an exchange store and stealing merchandise, Proceedings were interrupted several times by incoming rockets which drove court members and witnesses to cover. One such interruption seemed noteworthy to the defense counsel in bis representation of the accused. One of the issues involved in the case was the amount of merchandise stolen. Little of it has been recovered. The defense had raised the possibility that some of the items of merchandise charged against the accused may have disappeared from the store’s inventory in a manner not chargeable to the accused. The store manager, testifying in response to defense crossexamination, had just stated that the store Was never left unlocked and unattended. Suddenly, the unmistakable whine of “incoming” Was heard. Without standing on ceremony, the courtroom was cleared as those in attendance sought cover in nearby bunkers. When the court again came to order, the defense counsel asked the witness.
“Have you been operating the Exchange Store on occasion when there have been rocket attacks such as this?”
“Yes, sir.”
“On those occasions have you left the store building to seek shelter in much the same way as we left the courtroom a few minutes ago, or did you stop to take inventory and lock the door on the way out?”
The point was made.
While by no means were all trials and pretrial investigations conducted in the outlying areas subjected to hostile fire, the occurrence described above was not an isolated instance, and the war in Vietnam was not remote to the Navy judge advocates in I Corps.
In spite of the unusual conditions encountered, the Navy is making UCMJ a real instrument of discipline in Vietnam. Both the accused and the government are being properly represented. During the period under discussion, the judge advocates participated in an average of six special courts-martial per week, and in addition, participated in an average of five general courts-martial per month. No prosecution was stymied for lack of speedy trial. Each accused had his day in court as was his due; UCMJ met the challenge of the battle zone.
On the wall in the Staff Legal Office hangs a homely, handpainted cardboard, plaque depicting Lady Justice in flowing robes carrying in one hand the traditional scales, in the other hand a Thompson submachine gun. The judge advocates working there are rightly proud to be carrying out the motto on the border of that plaque “Justice even in War.”
----- ————
Mind Over Matter
Before India became a republic, cadets of the Royal Indian Navy were trained in the United Kingdom with the Royal Navy. One RIN cadet, while on board a training cruiser, got into many scrapes and found himself continuously under punishment. The punishment mainly consisted of extra drill. The cadet always carried out the drill most energetically, much to the disgust of his fellow sufferers who had to keep pace with him. Even the petty officers noticed his attitude, and one of them asked him how he managed to keep so cheerful and full of energy.
“Well, Chief,” he replied, “it’s quite easy. I believe in the theory of transmigration of the soul.”
The baffled petty officer said, “Transmigration of the soul? What’s that?”
“It’s like this,” replied the cadet, “While my body is up here doing extra drill, my soul is down below in the canteen eating ice cream.”
----------------------------------------------- Contributed by Commander G. K. Nadkar, Indian Navy
{The Naval Institute will pay $10.00 for each anecdote published in the Proceedings.)