Military Law and the Miranda Requirements
Gaylord L. Finch, Military Law and the Miranda Requirements
Military Law and the Miranda Requirements
Cleveland State University EngagedScholarship@CSU
Cleveland State Law Review
Gaylord L. Finch
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N United States v. TempiaI the United States Court of Military
Appeals2 held that the legal principles of Miranda v. Arizona3 apply to
persons in military service.
On May 1, 1966, Airman Tempia allegedly took indecent liberties
with three young girls in a restroom at the base library. Tempia was
brought to air police headquarters following a report of the incident, and
a special agent interrogated him on the same day. The agent gave
Tempia warning under Article 31, 4 Uniform Code of Military Justice5 and
also told him that he could consult with legal counsel. Tempia wanted
counsel and was released, but he had not yet received legal counsel
when he was called to the Office of Special Investigation (OSI) on May
3, 1966. The agent set up an appointment for him with The Dover Air
Force Base Staff Judge Advocate.
Tempia was told by the Staff Judge Advocate that he would be
disqualified in his capacity as Staff Judge Advocate if an attorney-client
relationship were established.6 The Staff Judge Advocate told Tempia
that he would advise him of his legal rights but this was not the same as
acting as his defense counsel. Tempia was then told that under Air Force
Regulation 110-4 (Legal Assistance Program), he could not receive legal
assistance on a possible disciplinary matter, and also declined to hear
Tempia's story. At this stage of the investigation, the Staff Judge
Advocate could not provide the accused with a military lawyer, but Tempia
* B.S., Bowling Green Univ.; Fourth-year student at Cleveland-Marshall Law
School; Law Clerk, Merkel, Campbell, Dill and Zetzer.
1 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
2 10 U.S.C. § 867 (1964).
3 384 U.S. 436 (1966).
4 10 U.S.C. § 831 (1964):
(a) No person subject to this chapter may compel any person to incriminate
himself or to answer any question the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement
from, an accused or a person suspected of an offense without first informing him of
the nature of the accusation and advising him that he does not have to make any
statement regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by
(c) No person subject to this chapter may compel any person to make a
statement or produce evidence before any military tribunal if the statement or evidence
is not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or
through the use of coercion, unlawful influence, or unlawful inducement may be
received in evidence against him in a trial by court-martial.
5 10 U.S.C. §§ 801-940 (1964). The Uniform Code of Military Justice will be cited
hereafter as the UCMJ, and referred to in the text as the Code.
6 10 U.S.C. § 806(b) and (c) (1964).
was informed that he would be given a reasonable time to obtain a
civilian lawyer at his own expense. Tempia was then told that if charges
were preferred, he would be furnished a military lawyer, and the Staff
Judge Advocate read and explained each section of Article 31 to the
Tempia was returned to the OSI and advised of the charges against
him,7 and during the second interrogation of that day, he executed a
confession to the OSI agent.
The following testimony by an OSI agent points out Tempia's
understanding in his search for counsel:
Q. . . . did Airman Tempia upon returning to the OSI office
after speaking with the Judge Advocate decline legal counsel, or did
he say he was unable to obtain legal counsel to represent him at the
interrogation (or that the military could not help him) ?
A. Well, he did not say "military." He said, "They didn't do me
no good." 8
The confession was admitted into evidence at Tempia's general
court-martial--held one day after the Miranda decision-over objection
by defense counsel that the confession was taken contrary to the Miranda
holding. Airman Tempia was convicted, but his conviction was reversed
on appeal to the Court of Military Appeals.
The following case notes show the Court of Military Appeals position
in interpreting the Mirandarules and why it overruled the government's
contention that Airman Tempia was not in custody and that he had
waived his right to counsel during interrogation.
In determining whether an interrogation is a custodial
interrogation requiring compliance with the Miranda rules if resulting
statements are to be used in evidence, the test to be applied is not
whether the accused, technically, has been taken into custody, but,
absent that, whether he has been otherwise deprived of his freedom
of action in any significant way. Considering the realities of military
life in which, unlike civil life, a suspect may be required to report
and submit to questioning without regard to warrants or other legal
process, an interrogation for which a military suspect is ordered to
report must be regarded as a custodial interrogation for purposes
of the application of the Miranda rules.
Testimony that the accused told OSI agents that he did not
desire further counsel, that they could not help him . . . "They didn't
do me no good" was insufficient to establish a knowing and
intelligent waiver of the accused's right to counsel during interrogation
where he had previously asked to consult counsel and had been
referred to the staff judge advocate and that officer not only
erroneously advised the accused that he was not entitled to appointed
7 Taking indecent liberties with a female under age sixteen is a criminal offense
under UCMJ, art. 134.
9 UCMJ, art. 16 (1964).
8 F. Lane, Miranda in Uniform, 3 Trial magazine, 44 (Aug. 1967).
counsel, but specifically declined to act as counsel. Under these
circumstances, the accused's comments indicate no more than that
his efforts to obtain counsel had been frustrated. Well might the
accused believe the jig was up after he could get no advice from the
Staff Judge Advocate; could tell him none of the facts; and could
merely sit and listen to a repetitious statement of his rights under
Article 31. He wanted a counsel, not an impartial arbiter. He
received only the latter. Mirandarequires the former. What does
concern us is our duty to follow the interpretation by the Supreme
Court of the Constitution of the United States insofar as it is not
made expressly or by necessary implication inapplicable to members
of the armed forces. It is well to remember that we, "like the state
courts, have the same responsibilities as do the federal courts to
protect a person from a violation of his constitutional rights. ..."
We necessarily must effectuate the mandate by holding Miranda v.
Arizona applicable in military prosecutions.10
The purpose of this article is to examine the Code and its
effectiveness in dealing with the military accused in the area of criminal
procedure. Emphasis will be placed on the serviceman's right to counsel,
the serviceman's Fifth Amendment privilege against self incrimination
and the scope of the Bill of Rights when applied to the serviceman. The
discussion will be limited to the relationship of the military to its own
Civil and Military Jurisdictions Distinguished
Military courts are an "entity entirely apart from the civilian federal
courts" and "the federal courts, including the United States Supreme
Court, generally may not control or interfere with the established system
of military jurisprudence." 11 The Constitution vests in Congress the
power to control and regulate the military.12 Courts-martial are convened
under Article I, which is the legislative article of the Constitution. The
judicial power, under Article III of the Constitution, is entirely
independent of Article 1.13
It is clear that the "tradition of our country, from the time of the
Revolution until now, has supported the military establishment's broad
power to deal with its own personnel." 14 The "sharp distinction between
courts-martial and the state and federal courts" has been maintained
for a long time. 15 The noted exception to the rule precluding the federal
courts from reviewing courts-martial decisions is a "collateral attack
re10 Lane, supranote 8, at 45.
11 Barker, Military Law-A Separate System of Jurisprudence, 36 U. Cin. L. Rev.
12 U. S. Const. art. I, § 8 clauses 11-14 contain the War Powers of Congress.
13 U.S.C.A. §801, at 110 (1967).
14 E. Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 187 (1962).
15 Barker, op. cit. supra note 11, at 227.
questing a writ of habeas corpus." 10 The purpose of a writ of habeas
corpus is to terminate unlawful confinement and it has no relationship
to the innocence or guilt of the prisoner. 17 Article 76 of the Code closes
all other methods of review by civilian federal courts.' s
The Code and Its Procedures
For purposes of criminal jurisdiction, a serviceman is subject to the
Code and can be tried by courts-martial for offenses against that Code.
Three kinds of courts-martial are provided,'9 and each varies in
jurisdiction, procedure and sentencing power.20
A general court-martial is composed of at least five members (there
is no maximum number of members) ,21 and usually deals with the most
serious offenses. All members must be officers if the accused is an
officer,22 but enlisted men may sit on the panel if the accused is an enlisted
man and so requests.23 The law officer 24 is a lawyer; he conducts the
trial and rules on all questions of law and procedure (he has some
powers usually exercised by a civilian judge), but is not a member of the
court.25 Trial counsel (the prosecutor) 26 and defense counsel must be
members of the bar.27 This court has jurisdiction to try all offenses and
persons subject to the Code and may adjudge any sentence, including
the death penalty, that is authorized by the Code. 28
A special court-martial is composed of at least three members but
no member need be a lawyer; they are rarely legally trained.29 The
president has duties similar to the law officer of a general court-martial. 0
16 Id. at 231.
17 Id. at 232.
18 Id. at 231; see also U.S.C.A. § 876, at 298-309 (1967).
19 UCMJ, art. 16 (1964).
20 UCMJ, arts. 16-54 (1964).
21 UCMJ, art. 16 (1964).
22 UCMJ, arts. 25(a), c(1), d(1) (1964).
23 Under UCMJ, art. 25(c) (1) (1964), if an enlisted man requests that enlisted men
sit on the panel, at least one-third of the members must be enlisted; see The
Uniform Code of Military Justice and the Right to Counsel, 36 U. Cin. L. Rev. 472, 473
24 UCMJ, art. 26 (1964).
25 Manual for Courts-Martial jj 57(a) (hereinafter cited as MCM). This serves as the
official text on military law and came about by Exec. Order No. 10214, 16 Fed. Reg.
1303 (1951), pursuant to 10 U.S.C. § 836 (1964).
26 UCMJ, art. 38 (1964).
27 UCMJ, art. 27 (1964).
28 UCMJ, art. 18 (1964).
29 UCMJ, art. 16 (1964); Note, Right to Counsel in Courts-Martial: Application of
Stapley, 13 U.C.L.A. L. Rev. 1419 (1966).
30 UCMJ, art. 51 (1964).
The accused is not entitled to a qualified lawyer as defense counsel
unless the trial counsel is so qualified. 31 The court is usually used for less
serious offenses, but has jurisdiction to try all persons and noncapital
offenses. 32 It is limited to adjudging sentences of a maximum of six
months' confinement, a bad conduct discharge, or lesser penalties.3 3
A summary court-martial is generally used for the least serious
offenses and may only try enlisted personnel. 34 This is similar to a
civilian police court and consists of one member. The Code provides for
neither trial nor defense counsel, 35 and this court can adjudge a sentence
of no more than one month confinement or its equivalent.36 One cannot
be tried by this means if he objects and has not already refused
Commanding officers may impose nonjudicial punishment under
Article 15 of the Code for minor offenses,3 8 provided the accused is
granted a fair hearing. 39 Article 15 penalties are almost identical to
those that can be imposed by a summary court-martial. 40
The Code also provides for extensive appellate procedure. 41 The
convening authority and a member of the office of the Judge Advocate
General automatically review all court-martial proceedings. 42 Any
conviction involving death, confinement for one year or more, or
dishonorable or bad conduct discharge must be reviewed by a service Board of
Review. 43 The Court of Military Appeals, consisting of three civilian
judges, is the highest court in the field of military law and represents
the last step in the appeal process. 44 This "Supreme Court" for the
military 45 interprets the Code in the light of constitutional protections and
its decisions are the final authority on military criminal law, even in the
31 UCMJ, art. 27(c) (1964).
32 UCMJ, art. 19 (1964).
face of contrary provisions in the Manual for Courts-Martial. 4 A
judgment by the Court of Military Appeals may not be appealed to any
civilian court (including the Supreme Court).
The Military Community
While the constitutionality of the draft 47 is debated,48 it appears
here to stay. Every resident male is a potential member of the armed
forces. Each year thousands become part of the military community and
each year thousands return to the civilian community.49
A soldier is created during basic training, and the principles used
are depersonalization, isolation and reorganization. Each recruit is
subjected to a depersonalization process separated from his normal social
environment. A military post is separated from the civilian populace
socially by its values, purpose for being, and laws, and physically by
fences and guards. Being educated cannot overcome feelings of
uncertainty and confusion, as the trainee is moved from one strange
environment to another to perform unfamiliar tasks. The Code and Manual for
Courts-Martial explain a new set of house rules with strange
requirements of conduct. Our society co-operates so well with the military that
the future is bleak for persons with Dishonorable or Undesirable
Discharges, and with rare exceptions the trainees wind up emulating the
cadre and obeying all the rules. The military is a society where
everyone does what is required and under conditions where a single infraction
stands out against the constantly examined compliance of others. The
military is no place for the sloppy, the arrogant, or the independent. 50
The serviceman can not quit his job and go home,51 nor can he try to
convince others to strike against conditions. 52 The right to a jury trial
has never been enjoyed by the serviceman.1 Since the serviceman is
always under the control of his superiors, the right to bail guarantee
under the Eighth Amendment is inconsistent with a military environment
because he does not have the freedom of movement that bail
pre46 E.g., United States v. Simpson, 10 U.S.C.M.A. 229, 27 C.M.R. 303 (1959).
47 The Universal Military Training and Service Act of 1951, eff. 6/19/51, C. 144, 65
Stat. 86, 50 U.S.C. App. Supp. V 459.
48 Compare J. L. Bernstein, Conscription and the Constitution: The Amazing Case
of Kneedler v. Lane, 53 A.B.A.J. 708 (1967), with J. W. Delehant, a Judicial
Revisitation Finds Kneedler v. Lane Not So "Amazing," 53 A.B.A.J. 1132 (1967).
49 There were over 22,500,000 veterans of all armed forces living in June 1960. E.
Warren, op. cit. supra note 14, at 188.
50 D. Duncan, The New Legions, 96-102 (1967).
51 Punishable as desertion under UCMJ, art. 85 (1964).
52 Punishable as conspiracy under UCMJ, art. 81 and as mutiny under UCMJ, art. 94
53 The Uniform Code of Military Justice and the Right to Counsel, op. cit. supra
note 23, at 480.
supposes. 54 When considering barracks life and military custom, the
Fourth Amendment guarantee against unreasonable search and seizure
also takes on a different substance. 55
The military is a perfect example of a welfare state, 56 and it is one
of the most undemocratic of all institutions. The separation and
difference of the civilian and military communities is a good idea, but it is
becoming less and less of a reality.57 The military has become one of the
world's richest and most influential organizations. 58 It also may have the
largest political block in the country with three million men in uniform,
a million civilians in its employ and four million in defense industries.
The military-industrial complex also has a staggering economic influence
on this country.59 Civil service preference is given to ex-servicemen.
Corporations hire retired generals to serve as lobbyists for lucrative
defense contracts. The military wages public relations campaigns and
lends men and equipment to the movie industry in order to glorify the
military and warfare. Many colleges have compulsory R.O.T.C.
programs and many businesses refuse to hire young men who have not
fulfilled their service obligation. The G.I. Bill provides tuition assistance
after military service so one who has not accepted military life is
deprived of this assistance.6 °
We need an army, but its role should be reduced to protecting the
people from attack by an outsider.6 1 When the authority and influence
of the military have such a capacity for affecting the lives of us all, "the
wisdom of treating the military establishment as an enclave beyond the
reach of the civilian courts almost inevitably is drawn into question." 62
While civilian laws are designed for protecting and maintaining
order in the community, military laws are designed for achieving and
maintaining discipline so the organized force can accomplish its basic
objective of military victory.63 Since the influence and power of the
military are not separated from civilian society, the serviceman should
54 Right to Counsel in Courts-Martial: Application of Stapley, op. cit. supra note 29,
56 See T. Coffin, The Passion of the Hawks: Militarism in Modern America, 66-74
57 See Duncan, op. cit. supranote 50, at 105-109.
58 See F. Cook, The Warfare State, 175-201 (1962).
59 See Duncan, op. cit. supranote 50, at 255.
60 Id. at 257-262 (portions of the entire paragraph from this source); see Coffin,
supra note 56; Cook, op. cit. supra note 58.
61 Duncan, op. cit. supra note 50 at 256.
62 Warren, op. cit. supranote 14, at 188.
63 The Uniform Code of Military Justice and the Right to Counsel, supra note 23, at
be considered a citizen first; he should not be denied any constitutional
right so long as his fighting effectiveness is not diminished. 4
Recent Criminal Procedure Decisions
In addition to a huge military establishment, we are also faced with
other massive institutions, such as government, industry and labor.6 5
The highly organized, computerized and dehumanized institutions of our
industrialized society challenge the ability of government and other
large organizations to continue to treat individuals as individuals.6 6
The Supreme Court has in recent years shown concern and feeling
for the individual, with decisions of the 1960's giving widened protection
to the criminal defendant. Mapp v. Ohio67 said that even if reliable,
evidence obtained by illegal search or seizure cannot be used in state
prosecutions. In Gideon v. Wainwright, 68 the Court applied the Sixth
Amendment to the states and said that indigents in state criminal
proceedings are entitled to have counsel appointed whether the offense is
capital or non-capital, felony or misdemeanor. Malloy v. Hogan6 9 held
that the Fifth Amendment's privilege against self-incrimination applies
in state as well as federal courts. Escobedo v. Illinois70 moved the
Constitution and lawyers into the police station. Miranda v. Arizona7'
attempted to clarify Escobedo and said that once an accused was taken
into custody or otherwise deprived of his freedom of action by the police,
the police must clearly inform him of his right to remain silent, that
anything he says may be used against him, that he has the right to consult
with counsel and that if he is indigent he has the right to appointed
counsel. No confession can be used unless police prove they complied
with these Miranda rules. In Application of Gault72 the Court states that
juveniles must be given the same protections as are given adults.
Mirandahas brought about much controversy and discussion. 73 The
current trend of the Supreme Court affects almost every American and
73 See Interrogation of Criminal Defendants-some views on Miranda v. Arizona,
35 Fordham L. Rev. 169 (1966); A Dissent from the Miranda Dissents: Some
Comments on the "New" Fifth Amendment and Old "Voluntariness" Test, 65 Mich. L.
Rev. 59 (1966); Elsen and Rosett, Protection for the Suspect Under Miranda v.
Arizona, 67 Colum. L. Rev. 645 (1967).
is a matter of much debate.74 The trend is to extend the Bill of Rights
in almost every direction in behalf of the individual, and for the court
to act in areas where the legislative and executive branches can not or
will not move.
Recent Military Criminal Procedure Decisions
The question of whether the Bill of Rights should apply to the
military came to issue with the appeal of three recent special courts-martial
proceedings. Since none of the appointed military counsel had been
legally trained, the accused in each case claimed that he had been denied
The District Court of Utah decided Application of Stapley75 in 1965.
Stapley sought a writ of habeas corpus following his conviction by a
special court-martial for fraud in issuing bad checks and other Code
violations. He requested the appointment of a military lawyer for his
defense, but the request was denied because there was no military
lawyer available. The appointed defense counsel and assistant defense
counsel were untrained and inexperienced in either military or civilian law.
The defense counsel was a veterinarian with two days legal training and
the assistant defense counsel had studied the Code as part of an R.O.T.C.
program in college. 70 They relied on the officer who drew up the charges
for guidance in defending Stapley, and discouraged his attempts to secure
civilian counsel.7 7 In accordance with a deal his counsel had arranged
with the prosecution, Stapley pleaded guilty.78 As agreed, his
confinement was reduced to two months following conviction and he also
forfeited two-thirds of his pay for six months and was demoted to the
lowest enlisted grade.79 On petition for release, the district court granted
the writ of habeas corpus and held that it had jurisdiction to review the
alleged denial of Stapley's constitutional rights.80 The court also held
that Stapley was indigent and said he had been denied the assistance of
counsel required by due process of law and the Sixth Amendment.8 '
While the Sixth Amendment was applied to special courts-martial here,
it did not necessarily require the appointment of legally qualified
counsel. The sentence imposed on Stapley by the special court-martial
limited review within the military system to an examination of the record
by the convening authority and the staff judge advocate8. 2 This points out
that few cases actually reach the Court of Military Appeals due to the
narrow scope of appellate review provided under the Code.83 Stapley's
only remedy was collateral attack on the judgment of the special
courtmartial by writ of habeas corpus. Since review of courts-martial
decisions by habeas corpus action has traditionally been narrow in scope,
there is a need to rely on the expertise of the military court and
Congress to assess the due process claim.8 4
LeBaUister v. Warden, 5 was decided by the District Court of
Kansas in 1965. LeBallister was a member of the Army National Guard for
Nevada, and had been convicted by two separate special courts-martial
for absence without leave and disobedience of orders. His actions
stemmed mainly from pursuing his personal beliefs as a conscientious
objector8. 6 He did not request civilian or military counsel of his own
choosing, and he was represented by two appointed infantry officers.8 7
Neither had any specialized legal training, but here the court held that
they represented LeBallister as effectively as possible under the
circumstances.88 The petitioner cited the Stapley decision, but the court said
that Stapley was expressly limited "to the peculiar circumstances of
that case." 89 Thus, LeBallister's writ of habeas corpus was denied with
the district court holding that "an accused before a military court is not
entitled as a matter of right under the Sixth Amendment to
representation by legally trained counsel." 90
Kennedy v. Commandant,91 was decided by the District Court of
Kansas in 1966. Kennedy was serving two six-month sentences imposed
by two separate courts-martial when he petitioned the federal district
court for a writ of habeas corpus. He filed an affidavit of indigency that
met the federal court requirements. He also requested that either a
specified captain or some other qualified military lawyer be appointed
to defend him, or that a qualified civilian attorney be hired at
govern82 UCMJ, art. 67(c) (1964); MCM § 91(b); see Right to Counsel in Courts-Martial:
Application of Stapley, op. cit. supra note 29, at 1423.
83 Right to Counsel in Courts-Martial: Application of Stapley, op. cit. supra note 29,
84 Id. at 1426; see Barker, op. cit. supra note 11, at 233-37.
85 247 F. Supp. 349 (D. Kan. 1965).
86 Id. at 351.
87 Id. at 350-51.
88 Id. at 351.
89 Id. at 352.
91 258 F. Supp. 967 (D. Kan. 1966).
ment expense. His request was denied, and the defense counsel who was
appointed had no specialized legal training. Kennedy's writ of habeas
corpus was denied and the position taken in Stapley-that the Sixth
Amendment applies to courts-martial-was rejected. The court said
"an accused before a military court is not entitled as a matter of right
under the Sixth Amendment to representation by legally trained
The LeBallister and Kennedy decisions point out the principle that
generally the civilian federal courts, including the United States
Supreme Court, may not control or interfere with the established system
of military jurisprudence. 3 Stapley says that the Sixth Amendment
right to counsel applied to the military accused while LeBallister and
Kennedy appear to say that the right to counsel should not be based on
the Constitution, but rather on Congress' exercise of its constitutional
powers in enacting the Code. As a result, there is a clear cut conflict
on this point of law in the civilian courts! 4 The petitioner must be
confined in order to bring a writ of habeas corpus and this reduces the
effectiveness of the federal courts in dealing with denials of due process in
special courts-martial. 95 The maximum sixth month confinement that
may be imposed by the special courts-martial is the reason for this. 6
This situation calls for legislative action.9 7
The United States Court of Military Appeals
This court is the primary guardian of servicemen's rights before
In 1960, the Court of Military Appeals held a portion of the Code
itself unconstitutional in United States v. Jacoby.99 The court said that
Article 49 of the Code, which allowed admission of depositions taken on
interrogatories in the absence of the accused, violated the Sixth
Amendment right of confrontation. 0 It also said that congressional power to
make rules for governing the armed forces was limited by the Bill of
92 Id. at 970.
93 Barker, op. cit. supranote 11, at 223.
94 Compare Application of Stapley, 246 F. Supp. 316 (D. Utah 1965), with
LeBallister v. Warden, 247 F. Supp. 349 (D. Kan. 1965) and Kennedy v. Commandant,
258 F. Supp. 967 (D. Kan. 1966); see the Uniform Code of Military Justice and the
Right to Counsel, op. cit. supra note 23, at 482.
95 Right to Counsel in Courts-Martial: Application of Stapley, op. cit. supra note 29,
96 UCMJ, art. 19 (1964).
97 Right to Counsel in Courts-Martial: Application of Stapley, op. cit. supra note 29,
98 Right to Counsel and the Serviceman, op. cit. supra note 44, at 210.
99 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960).
100 Id. at 430-33, 29 C.M.R. at 246-49.
Rights. 10 ' The court likewise declared that it is its duty to interpret the
Code in the light of constitutional protections, and that all Bill of Rights
guarantees apply to servicemen except those that are expressly or by
necessary implication excluded.10 2
In United States v. Culp,'1 3 decided in 1963, the court upheld the
use of nonlawyer counsel in special courts-martial against Sixth
Amendment attack. The court implied that while the Sixth Amendment does
apply to servicemen regarding their right to counsel before military
tribunals, the requirement is met by the appointment of military counsel.10 4
The 1967 Tempia decision affirms the court's holding in Culp that
the Constitution and the Bill of Rights do apply to the military. Thus,
we now have instances of the court applying both the Fifth and Sixth
Amendments to servicemen. The conflict of decisions that exists in the
federal courts does not exist in the decisions of the highest military court.
However, it should be noted that the question of whether there is a
constitutional right to representation by legally qualified counsel in a
courtmartial proceeding remains. 10 5 The accused always is entitled to legally
qualified counsel in a general court-martial, in a special court-martial
where the prosecutor is legally qualified and in all appeals.0 > This right
is not limited to indigents because it also applies to those who can afford
to retain counsel.10 7 The question is thus ideally raised in a special
courtmartial where the prosecutor is not legally trained and the accused is
In view of the current trends of the Supreme Court and the Court
of Military Appeals, the Tempia decision was not a hasty one. 10 9 The
highest civilian court and the highest military court both indicate that
they are going to continue to strengthen the constitutional rights of the
individual in a changing society. The concern of the Court of Military
Appeals for the individual who is part of our massive military
establishment is encouraging, since the Code does not seem fully adequate to
protect the individual.
101 Id. at 431-33, 29 C.M.R. at 247-49.
102 Id. at 430-31, 29 C.M.R. at 246-47; see also E. Warren, op. cit. supra note 14, at
103 14 U.S.C.M.A. 199, 33 C.M.R. 411 (1963).
104 The appointment of an officer pursuant to UCMJ, art. 27 (c).
105 The Uniform Code of Military Justice and the Right to Counsel, op. cit. supra
note 23, at 483.
106 Id.; UCMJ, arts. 27(a), (b), (c) (1964).
107 The Uniform Code of Military Justice and the Right to Counsel, op. cit. supra
note 23, at 483.
109 But see Comment, United States v. Tempia: The Questionable Application of
Miranda to the Military, 13 Vill. L. Rev. 170 (1967).
The Code places no limitations on the types of crimes that can be
tried by a court-martial, and the sentences meted out by a court-martial
are no less real than those imposed by a civilian court. 110 For example,
a special court-martial may impose on a serviceman a bad conduct
discharge, which could have a severe impact on any future employment
possibilities. A special court-martial conviction also leaves the
serviceman with a permanent record. Officers appointed as defense counsel in
a special court-martial usually only have superficial training in military
law and commit a high frequency of error.1 1' The serviceman should be
entitled to legally trained counsel whenever a civilian would be so
entitled under similar circumstances. A civilian is entitled to legal counsel
when a non-capital offense is involved,"12 and a serviceman should be
entitled to the same right. Many lawyers serve in the Armed Forces in
nonlegal capacities and a large reserve of potential military attorneys
remains untapped because of the Defense Department's own personnel
If military necessity makes it impractical for lawyers to be assigned
to every court-martial, at least the quality of defense counsel at a special
court-martial could be improved. A department of nonlawyer officers
specifically trained for the role of defense counsel at special
courtsmartial is a possibility." 4 The military is concerned that an accused has
effective counsel," 5 but it should concentrate more on the specialized
legal training of nonlawyer personnel if legislation cannot be passed to
guarantee legally qualified counsel in all courts-martial.
The summary court-martial should be eliminated as a judicial
proceeding. It deals with disciplinary problems and these could be dealt
with just as effectively by a commander using non-judicial punishment
under Article 15 of the Code.116 A commander sometimes needs
irnme110 Right to Counsel and the Serviceman, op. cit. supra note 44, at 226.
111 Right to Counsel in Courts-Martial: Application of Stapley, op. cit. supra note 29,
112 Gideon v. Wainwright, 372 U.S. 335 (1963).
113 A statement by the American Civil Liberties Union at 1966 senate subcommittee
hearings pointed out that many Judge Advocates perform unskilled and nonlegal
jobs and that many young attorneys are denied appointments as Judge Advocates.
The statement concluded by saying there was a sufficient source of legally qualified
persons to implement any legislation designed to safeguard the constitutional rights
of military personnel. Right to Counsel and the Serviceman, op. cit. supra note 44, at
114 Right to Counsel in Courts-Martial: Application to Stapley, op. cit. supra note
29, at 1431.
115 See P. E. Wilson, The Right of the Military Accused to Effective Counsel: The
Military View, 14 Kan. L. Rev. 593 (1966).
116 A statement by Seymor W. Wurfel, Professor of Law at the University of North
Carolina, recommended more effective use of non-judicial punishment as a way of
eliminating both the special and summary court-martial. The general court-martial
could impose the lesser punishment associated with a special court and that way the
proceeding could be fully judicial in all respects in justice to both sides. Right to
Counsel and the Serviceman, op. cit. supra note 44, at 230-31; note also the broad
powers given a commanding officer under UCMJ, art. 15 (1964).
diate discipline to ensure fighting effectiveness, but this should not be
in the form of a judicial proceeding where one man is allowed to act as
judge, jury, prosecutor and defense counsel.117
We are in a time of uncertain peace, and demands are placed on the
administration of justice when related to those serving in a war zone.
Competing arguments of national security versus personal rights
necessarily arise. However, it is during time of war when the exercise of
military power is most arbitrary and it is during this time that the
individual needs his rights protected most faithfully.118
The influence and power of the military touches all of us. We
should not let excessive fears for our security diminish the rights given
to us under the Constitution. The courts can play only a limited role in
protecting the heritage of our people against the possibility of unchecked
military power.119 Both the military and civilian courts "engage in the
lonely task of balancing the need for order and stability with the goal
of liberty and due process, seeking to preserve a heritage of
individualism in a hierarchy of pervasive institutionalism." 120 The Court of
Military Appeals is following the lead of the Supreme Court in preserving
the constitutional rights of the individual, and recent cases indicate that
this trend will continue.
No scheme of law can escape the impact of the imperfect human
being, and life itself intrudes on any precise plan.121 Courts emphasizing
constitutional protections see the peril of power-wielding institutions
ruthlessly restricting the role of the individual, and they are helping to
preserve his rights, his dignity, his opportunity for self-fulfillment and
his chances for creativity. 122
When former President Eisenhower left the White House, he urged
that the American people be alert to changes coming about due to the
coalescence of military and industrial power. 123 His words were these:
(T)his conjunction of an immense military establishment and a large
arms industry is new in the American experience. The total
influence-economic, political, even spiritual-is felt in every city, every
state house, every office of the Federal Government....
(W) e must not fail to comprehend... (the) grave implications. Our
toil, resources and livelihood are all involved; so is the very
structure of our society.
117 UCMJ, arts. 20, 27, 38 (1964).
118 The Uniform Code of Military Justice and the Right to Counsel, supra note 23 at
485; see Right to Counsel and the Serviceman, op. cit. supra note 44, at 229.
119 E. Warren, op. cit. supra note 14, at 202.
120 M. 0. Tobriner, op. cit. supra note 65, at 23.
123 E. Warren, op. cit. supranote 14, at 202.
(W)e must guard against the acquisition of unwarranted influence
• . . by the military-industrial complex. ...
We must never let the weight of this combination endanger our
liberties or democratic processes.
We should take nothing for granted. Only an alert and
knowledgeable citizenry can compel the proper meshing of the . . . machinery
liberty may prosper together.m12 e4thods and goals, so that security and
of defense with our peaceful