cover: maj w/inn m. thurman presides at an …...cover: maj w/inn m. thurman presides at an...

COVER: Maj W/inn M. Thurman presides atan investigation in the NCO club of the 2dBattalion, 1st Marines, in July 1967. Thereporter, Cpl Michael J. Partyka, uses theclosed microphone system to record the tes-timony ofthe Vietnamese witness, as repeat-edby the translator. Other particpant is CaptEugene A. Steffen, at left.Photo courtesy of Col Donald 1-ligginbotham, USMCR

HQMC20 JUN 2002

ERRATUMto

MARINES AND MILITARY LAW

IN VIETNAM: TRIAL BY FIRE (SOFTBOUND)

Change the distribution PCN read 1900031 0600"vice 19000310500.

DISTRIBUTION: PCN 19000310680

PCN 19000310680

MARINES AND MILITARY LAWIN VIETNAM: TRIAL BY FIRE

byLieutenant Colonel Gary D. Solis

U.S. Marine Corps

HISTORY AND MUSEUMS DIVISIONHEADQUARTERS, U.S. MARINE CORPS

WASHINGTON, nc.

1989

Volumes in the Marine CorpsVietnam Series

Operational Histories Series

US. Marines in Vietnam, 1954-1964, The Advisory and CombatAssistance Era, 1977

US. Marines in Vietnam, 1965, The Landing and the Butfdup, 1978

US. Marines in Vietnam, 1966, An Expanding war, 1982

US. Marines in Vietnam, 1967, Fighting the North Vietnamese, 1984

US. Marines in Vietnam, 1969, High MobtJity and Standdown, 1988

US. Marines in Vietnam, 1970-1971, Vietnamization and Redeployment, 1986

In Preparation

US. Marines in Vietnam, 1968

US. Marines in Vietnam, 1971-1973

US. Marines in Vietnam, 1973-1975

Functional Histories Series

Chaplains with Marines in Vietnam, 1962-1971, 1985

Anthology and Bibliography

The Marines in Vietnam, 1954-1973, An Anthology andAnnotatedBibliography,1974, reprinted 1983; revised second edition, 1985

Library of Congress Card No. 77-604776PCN 1 9 0 0 0 31060 0

Foreword

This is the second of a series of functional volumes on the Marine Corps' participationin the Vietnam War, which will complement the nine-volume operational and chronological series also underway. This particular history examines the Marine Corps lawyer'srole in Vietnam and how that role evolved. Also considered is the effectiveness of theUniform Code of Military Justice in a combat environment.

Military law functioned in Vietnam, but was it acceptably efficient and effective? Therewere several thousand courts-martial tried by the 400 Marine Corps lawyers who served inVietnam. Those trials stand as testament to the Marines, officer and enlisted, who madethe justice system yield results through their work, dedication, and refusal to allow thecircumstances of Vietnam to deter them.

Did the military justice system really work? The reader can be the judge, for both successes and failures are depicted here. This book presents a straightforward and unflinchingexamination of painful subjects. Marine lawyers in Vietnam came to legal grips with druguse, racism, fragging, and the murder of noncombatants, along with the variety of offensesmore usually encountered. The Marine Corps can take pride in the commanders and thejudge advocates who ensured that whenever those crimes were discovered they were exposed and vigorously prosecuted. There were no cover-ups; no impediments to the judgeadvocates who conscientiously represented the accused or the United States.

To study the military lawyer is to examine the military criminal. Reprehensible actsand unsavory individuals are described here. The outcomes of some cases are shocking anddismaying. But while verdicts cannot be ordered, the cases were always brought to trial.

The author, Lieutenant Colonel Gary D. Solis, was first in Vietnam in 1964 as an amphibian tractor platoon commander. He returned there in 1966-67, when he commandedHeadquarters and Service Company, and then Company A, 3d Amphibian Tractor Battalion. He later received his law degree from the University of California at Davis anda master of laws degree in criminal law from George Washington University. He was chieftrial counsel of the 3d Marine Division on Okinawa in 1974, then of the 1st Marine Division at Camp Pendleton in 1975-76. Later, he was the staff judge advocate of Headquarters Fleet Marine Force, Atlantic, and head of the Military Law Branch, Judge AdvocateDivision. He served rwo tours as a general court-martial judge and is a member of thebar of three states and the District of Columbia. He is a past secretary of the MarineCorps Historical Foundation and a member of the Supreme Court Historical Society. Heserved with the History and Museums Division from August 1986 to June 1989, whenhe retired from active duty.

E. H. SIMMONSBrigadier General, U.S. Marine Corps (Retired)Director of Marine Corps History and Museums

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Introduction

The war in Vietnam has long since passed from the headlines to the history books, yetthe many issues it raised have only slightly receded, and the controversy barely at all.

The functioning of the military justice system in that war- the practice of criminal lawon the battlefield - is one of those issues, and the controversy sparked by it is far frombeing extinguished. To the contrary, that system's increasing "civilianization" by statutory and appellate law keeps the ember alive, potentially to flame anew to bedevil our commanders in the next war.

But, as with so many such issues, the debate is conducted with little fact intruding onthe rhetoric. This volume goes a long way toward remedying that omission. In it are assembled the recollections, reflections, and accumulated wisdom of those charged withmaking that system - a relatively primitive version of today's - work in Vietnam.

What a curious group it was: The senior leadership of Marine Corps lawyers (they wouldnot be titled "judge advocates" until well past halfway in the war) was predominantlycombat officers, who had served in World War II and Korea in "line" billets, and who hadlater come into the legal field. The "worker bees," the trial and defense counsel, werealmost exclusively first-tour Reservists, many only recently removed from the hotbeds ofantiwar activism which their college campuses had become. A surprisingly thin cushion ofmid-career lawyers filled the interface.

Yet differences of background and of such temperament and philosophy as existed weresubmerged, for in its essential construct, the law is the great unifier of peoples and societies.And thus it was too for our lawyers in Vietnam: the single focus of this diverse groupand of their common effort was to make the system "work." We each must draw our ownconclusion concerning their success or failure.

However, to read this volume only to resolve such weighty questions is to overlook muchof its worth. It also tells an interesting story- as well it should. For writing history is muchlike preparing a difficult and complicated case for trial. One must conduct thoroughresearch, interview many witnesses, visit the scene of the crime, develop a theory of thecase, marshal the facts persuasively to support it, and finally, present the results of all thiseffort in a manner that will hold the listener's attention.

Accordingly, when we conceived the idea of an official history of the activities of Marine Corps judge advocates in Vietnam, we looked for an officer who excelled as a trialadvocate and who had fought in Vietnam. We found one in the author, Lieutenant ColonelGary D. Solis.

As this volume attests, we made a good choice. Because he has been both a combatofficer and a judge advocate, Lieutenant Colonel Solis brought to this effort a uniqueperspective. He also brought to it a talent for research and writing, which I think hasresulted in not only an outstanding piece of scholarship, but also a compelling and unusualpiece of literature.

~c _

MICHAEL E. RICHBrigadier General, U.S. Marine Corps

Director, Judge Advocate Division

v

Preface

"In the Armed Forces, as everywhere else, there are good men and rascals, courageousmen and cowards, honest men and cheats."

Ball et al. v. United States366 U.S. 393, 401 (1961)

Of the 448,000 Marines who served in Vietnam, only a small percentage came intocontact with the military justice system. By far the greater number served honorably andnever committed illegal or improper acts. But in a book about lawyers and military law — a

criminal justice system—the focus is necessarily upon criminals as well as lawyers.In this volume a number of cases are recounted in which the accused escaped punish-

ment or even trial, despite clear indications of guilt. Military law, like civilian criminallaw, demands proof of guilt beyond a reasonable doubt for a conviction. When the govern-ment falls short of that high standard, for whatever reason, the accused must go free.Occasionally that results in a seeming miscarriage of justice. Recounting such cases mayillustrate the workings of the system and make for interesting reading, but they werenot the norm. The reader should not be misled into thinking that most Marines werecriminals, nor that most, or even many, courts-martial ended in acquittal.

This book relates events that occurred in Vietnam, with only that description of inci-dents in the U.S. and elsewhere as necessary to explain the evolution of the Marine Corps'Judge Advocate Division and to describe a few wartime cases tried in the U.S. There islittle mention of the significant support provided Vietnam lawyers by judge advocateson Okinawa, in Japan, and in the United States. Nor is distinction made between Reserveand regular officers; such distinctions were ignored in the combat zone. The grades usedin the body of the text are those held by individuals at the time they are mentioned.

Court-martial cases are described to the exclusion of nonjudicial punishment. AlthoughNJP was the commander's most immediate and most frequently employed disciplinarytool, it does not usually involve lawyers, it is reserved for minor offenses, and no detailedrecords of its employment are kept.

Not all participants will agree with everything I have written. The voice of memoryis single and uncontested and tends to rigidify with time. History, on the other hand,allows many voices, is open to debate and calls for revision. Still, all history is an interpre-tation, and I have doubtless made mistakes. I alone am responsible for the text and anyerrors found there.

The history of Marine Corps lawyers in Vietnam is based on more than official records,books, records of trial, journals, and newspapers. Hundreds of letters to and from thelawyers who served in Vietnam have resulted, I believe, in a uniquely personal view ofthe events of that period which no official source can impart. I thank those who con-tributed so much through their responses to repeated inquiries, notably Colonels ClarkeBarnes, Pete Kress, Charlie Larouche, Mike McCollum, and former Captains Tone Grantand Chuck Kall. Also, Mr. Denzil D. Garrison was unfailingly helpful. Almost a hundredreviewers, most of whom served in Vietnam, read a draft of the manuscript. Their com-ments were indispensable and where applicable are incorporated into the text.

Thanks are due Mrs. Pat Amenson and her predecessor, Mrs. Ellen Burkett, of the

vii

viii

Promulgation Section, Office of the Judge Advocate General of the Navy. They lent vital support in locating obscure records of trial.

No history volume has a single author. Colonel W. Hays Parks began this project some10 years ago. The questionnaire he developed and the letters he collected were criticalfoundations for my research. Major Leonard A. Blaisol's perceptive critiques of draft chapters were invaluable. Mr. Jack Shulimson, Histories Section head, and Mr. Henry 1. Shaw,Jr., Chief Historian of the History and Museums Division, were patient mentors whowillingly imparted their experience and expertise.

Thanks to Brigadier General Michael E. Rich, Director of the Judge Advocate Division and friend of many years, who conceived the idea for this book. He was my harshestcritic, strongest support, and most perceptive editor.

Finally, this volume is dedicated to Mrs. Carolyn Faye W. Marshall, personal secretaryto every director of the Judge Advocate Division since its formation in 1968, and secretary to the Head, Discipline Branch, before that. Besides her encyclopedic memory, goodhumor, and always willing assistance, her long and dedicated service to the Marine Corpsand its lawyers are without parallel. She is a wonderful person and we are proud to knowher.

GARY D. SOLISLieutenant ColonelU.S. Marine Corps

Table of Contents

Foreword.IntroductionPreface viiTable of Contents ix

PART I FROM GENESIS TO VIETNAM 1

Chapter 1 Origins of Military Law and Marine Corps Lawyers 2

Ancient Roots 2

Beginnings: Army Courts, Naval Boards 3

World War II and Beyond: Military Justice is to Justiceas Military Music is to Music 4

The Uniform Code of Military Justice, 1950: Old Ills Redressed 5

Continuing Tension: Justice Versus Discipline 7

The Death Penalty in the Armed Forces: Yes But No 7

Marine Corps Lawyers: From The Line to Discipline Branch 8

In Support: Navy Lawyers 11

In Support: Headquarters Marine Corps 13

The Pentalateral Agreement: Diplomatic Riflemen 14

Military Law Comes to Vietnam 15

A Beginning 17

Chapter 2 1965: 3d Marine Division and 9th MEB Open Shop 18

From a Lawyer's Case File: One Homicide, Two Victims 23Trying Cases 24III MAF: Headquarters Without Lawyers 271st Marine Aircraft Wing: Touching Down 28Legal Duty in a Combat Zone: Problems 29From a Lawyer's Case File: The Marine Corps' First War Crime

Conviction in Vietnam 32Perspective 34

Chapter 3 1966: Building on Sand 35Trying Cases: Using 'The Red Book' 35From a Lawyer's Case File: Pilot to Copilot to Brig 37The Other Prisoners: North Vietnamese POWs 39The 1st Marine Division Arrives: More Lawyers, More Cases 40Force Logistic Command: New Guy on the Block 42Trying Cases 45Courtroom Personnel: Just Passin' Through 51

Homicide on Patrol: Men, Women, and Children 533d Marine Division: On The Road Again 54III MAF: Double-Hatting The Lawyer 55Perspective 56

PART II BUILD UP AND CONSOLIDATION 58

ix

x

Chapter 4 1967: Trying Times. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 59III MAF: Double-Hatted Twice 601st Marine Division: Rising Caseloads, More Lawyers. . . . . . . . . . . . . . . . . . . . . .. 633d Marine Division: More Combat, Fewer Courts. . . . . . . . . . . . . . . . . . . . . . . .. 65Force Logistic Command: Continue to March. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 681st Marine Aircraft Wing: Much Like Home. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 69From a Lawyer's Case File: Psychiatry and Appellate Review. . . . . . . . . . . . . . .. 70Project 100,000: Prelude to Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 73Drugs: Recognizing the Problem , 74Transportation: Hitchhiking to Court " 75Trying Cases........................................................ 76Marine Corps Lawyers in Combat: They Also Serve. . . . . . . . . . . . . . . . . . . . . . .. 82The First Lawyer General Officer: No Immediate Change " 83Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 84

Chapter 5 1968: High Tide , 881st Marine Division: Lawyers in the Storm's Eye " 893d Marine Division: Every Marine a Rifleman " 911st Marine Aircraft Wing/Force Logistic Command: Doing Time at Da Nang .. 96From a Lawyer's Case File: Civilian Court-martial " 99Drugs: 'High' Tide 103Trying Cases 104Trial Under Fire: Khe Sanh Court 106Legal Assistance, Claims, Reviews: Someone Has To Do It 109Fragging: Friendly Fire With Malice 110Homicide on Patrol: Nothing Hidden 111III MAF Brig Riot: Prisoner's Kangaroo Courts 114Perspective 119

PART III WINDING DOWN 123

Chapter 6 1969 Preamble: Discipline in Disarray 124The Military Justice Act of 1968: Evolutionary Fine-Tuning 124Marijuana: Persons of III Repute 126Racial Conflict: Black, White, and Green 127Administrative Discharge: The Right Fix 131Fragging: Killers In Our Midst 133From A Lawyer's Case File: Murder of a Company Commander 134Real or Imagined: The 'Mere Gook' Rule 138Perspective 140

Chapter 7 1969: Military Justice Tested 142III MAF: No Longer Two Hats 1421st Marine Division: The Law Center Concept 1423d Marine Division: More Combat, Fewer Courts 147From a Lawyer's Case File: Murder on Stage 1481st Marine Aircraft Wing: Looking For Action 151Force Logistic Command: Approaching Breakdown 156Trying Cases 159Exits: Marine Corps Draw Downs 162Perspective 164

Chapter 8 1970-71 Preamble: Discipline in Disarray 167Civilians at Courts-martial: Latney Reversed 167

Fragging: Killers in Our Midst . 168

From a Lawyer's Case File: Criminal-Criminologist 169Drugs: Marijuana and More 170Racial Conflict: High Tension 171

Administrative Discharge: The Marines Clean House 171

From a Lawyer's Case File: Homicide on Patrol 174Chapter 9 1970-71: Redeployment 191

Force Logistic Command: Playing Catch-Up 191

From a Lawyer's Case File: The Defense Wins Four 193

1st Marine Aircraft Wing: Prepared for Takeoff 1961st Marine Division: New Broom 196Trying Cases 202Last Call for Combat 208Closing Cases Versus Best Defense 208The Last Marine Lawyer Out 212Perspective 216

PART IV AFTERMATH AND ECHOES 217

Chapter 10 Prisoners of War, and Others 218Prisoner Misconduct: Charges 218From a Lawyer's Case File: Wartime Acts, Post-War Trial 221Deserters in the Hands of the Enemy 223White VC?: Robert R. Garwood 223

Chapter 11 Mopping Up 231Drugs, Race, Dissent: Same Problems, New Venues 231Vietnam Finale: Bien Hoa and the Rose Garden 232Perspective 240The Uniform Code of Military Justice: Did It Work in Vietnam? 241Summation 244

NOTES 245

APPENDICESA. Marine Corps Lawyers, Navy Law Specialists, and Naval Service

Judge Advocates who Served as Lawyers in Vietnam 269B. Staff Legal Officers/Staff Judge Advocates in Vietnam 274C. U.S. Medals Awarded Marine Corps Lawyers

and Judge Advocates for Vietnam Service 275D. Cases Cited 278E. Review of Confinement Adjudged in Cases of Marines Convicted

of the Murder of Vietnamese Noncombatants, 1965-71 280F. Confinement Actually Served in Selected Cases of Marines Convicted

of the Murder of Vietnamese Noncombatants, 1965-71 282G. Senior Marine Corps Lawyers, 1950 to 1966 283H. Heads of Discipline Branch and Directors of the

Judge Advocate Division, 1950 to 1988 284I. List of Reviewers 286

INDEX 288

xi

PART I

FROM GENESIS TO VIETNAM

CHAPTER 1

Origins of Military Law and Marine Corps LawyersAncient Roots — Beginnings: Army Courts, Naval Boards — World JThr II and Beyond

Military Justice is to Justice as Military Music is to Music —The Uniform Code of Military Justice, 1950:Old Ills Redressed— Continuing Tension: Justice Versus Discipline —The Death Penalty in the Armed Forces:

Yes But No — Marine Corps Lawyers: From The Line to Discipline Branch — In Support. Navy LawyersIn Support: Headquarters Marine Corps —The Pentalateral Agreement: Dijslomatic Riflemen

Military Law Comes to Vietnam —A Beginning

Captain Peter N. Kress arrived in Vietnam a littleafter noon on 8 March 1965. He carried a seabag, aManual for Courts-Martial, aJAG Manual, and a yel-low legal pad.* He was the first Marine Corps lawyerassigned legal duty in Vietnam. Three hours earlierthat day, at 0903, elements of the 9th Marines werethe first ashore in a major escalation of the war. Atthe same time, Air Force C-130s carrying portions ofthe 1st Battalion, 3d Marines began landing at DaNang, arriving from Futema, Okinawa.' Captain Kresswas in the initial contingent that arrived by air. At theend of a second tour of duty in Vietnam six years later,Lieutenant Colonel Kress would be one of the last Ma-rine Corps lawyers to leave Vietnam.

The units that landed in Da Nang were part of the9th Marine Expeditionaiy Brigade (MEB), from Okina-wa. The senior lawyer on Okinawa was Colonel OlinW. Jones, the staff legal officer (SLO) of the 3d Ma-rine Division. Several days before the landings he hadconferred with the Commanding General, 9th MEB,Brigadier General Frederick J. Karch. They decidedto detail a legal/civil affairs officer to the MEB, whichwas then afloat in the South China Sea preparing forthe imminent Vietnam landings.2 They selected Cap-tain Kress.

As Captain Pete Kress recalled his arrival, Da Nangwas even more humid and hot than Okinawa. But thiswas not his first time in uncomfortable operational cir-cumstances. He had been a Marine for nearly 11 years,formerly a company commander and, just two yearspreviously, a weapons instructor at The Basic School.While stationed at Quantico, Virginia, he had attend-ed Georgetown University's law school at night, gradu-ating in 1962. He transferred to Quantico's staff legaloffice and in December 1964 proceeded to Okinawafor duty.

After landing, Captain Kress and the other mem-

*Usually referred to as the JAG Manual," its correct title wasManual of the Judge Advocate General of the Navy. It containedlegal administrative matters and material supplementing the Manualfor Courts-Martial.

2

bers of the MEB staff trudged to the nearby French-built compound that lay just west of the Da Nang Air-base runways. They moved into an unpainted concrete,one-story, L-shaped building, reputedly a formerFrench Foreign Legion barracks. Field desks were setup throughout the short side of the L and the MEBstaff began operating ashore. The small rooms thatran down the long arm of the L served as the officers'billeting spaces.

Because his work would involve occasional confiden-tial discussions with Marines needing legal assistance,as well as those involved with some aspect of courts-martial, Captain Kress was given permission to locatehis "office" in his quarters, away from the distractionsof the MEB staff. He set up a field desk in his room,penned "Staff Legal Office" on a piece of yellow legalpaper, and taped it to the door. The Marines' first le-gal office in Vietnam was open for business.3 CaptainKress was beginning the newest chapter in a story ofmilitary law and Marine Corps lawyers that had be-gun long before.

Ancient Roots

Military law is virtually as old as military force. Un-til recently, there were two distinct bodies of militarylaw: that of the sea, and that of land armies. A bodyof sea-law took form under the Phoenicians, eventu-ally inherited and shaped to the modern world by theEnglish, who, in 1649, during the era of Cromwell,adopted rules for governing the fleet. These were theprecursors of modern American naval law.

The law governing armies arose under the Romansand their legion tribunes, who administered theMagistri Miitum. Later, the Franks produced the firstknown written code of military law, and William theConqueror introduced his version of military justiceto England in 1066. In 1640 Parliament passed thelandmark Ordinances of Armies, and later the Ameri-can colonies followed the British pattern.

In 1775 the Continental Congress adopted the firstAmerican code, based on the British Articles of War.On the naval side, Rules for the Regulation of the Navy

of the United Colonies were enacted in 1776. Duringthis period, Marines were governed by the Army's Ar-ticles of War when serving ashore, and by the Rulesfor the Regulation of the Navy when serving afloat.Over the next 87 years Congress made six changes tonaval law and, in 1862, passed the Articles for theGovernment of the Navy (25 in number), commonlyreferred to as "Rocks and Shoals."* With severalamendments, Rocks and Shoals remained in effect un-til 1951. Army law, meanwhile, underwent significantrevisions in 1786, 1806, 1874, and 1917.

In 1865 the United States established the positionof Solicitor and Naval Judge Advocate General, butCongress abolished the office after the death of the

*The term derives from Article XIX, Rules and Regulations forthe Government of the Navy, 1862: "If any officer... shall, throughinattention . . . suffer any vessel of the navy to be stranded, or runupon rocks or shoals. . . he shall suffer such punishment as a courtmartial shall adjudge." The term came to be applied to those Arti-cles for the Government of the Navy, enumerated in Naval CourtsandBoards, that were required to be read periodically to ships' crews.

incumbent.6 Several years later, in 1878, Marine CorpsCaptain William B. Remey served as ActingJudge Ad-vocate General, until 1880, when Congress passedlegislation creating the office of the Judge AdvocateGeneral of the Navy7 President Rutherford B. Hayesappointed Captain Remey the Navy's first Judge Ad-vocate General, to serve with the grade of colonel whilein that billet. Colonel Remey held the billet for thenext 12 years.**

Beginnings.' Army Courts, Naval Boards

By the end of World War I a three-tiered court-martial system was well-established. In the naval serv-ice the lowest level court was the deck court (calleda summary court-martial in the Army), a one-officerproceeding, limited to punishment of confinement orsolitary confinement for up to 20 days. Bread andwater for a similar period was authorized. The inter-

**Colonel Remey's final years found him mentally infirm. Hedied in a Massachusetts institution in 1894. (Biographical files, Ref.Sec, MCHC).

ORIGINS OF MILITARY LAW AND MARINE CORPS LAWYERS 3

Photo courtesy of Col Peter N. Kress, USMC (Ret.)

Peter N. Kress ispromotedto the grade of captain by LtGen Frederick L. W7iesman, Com-manding General of Marine Corps Schools, Quantico, Virginia. Fourteen months laterCapt Kress landed at Da Nang, the first Marine lawyer assigned legal duty in Vietnam.

4 MARINES AND MILITARY LAW IN VIETNAM

Marine Corps Historical Collection

Col William B. Remy, US. Marine Corps, was ap-pointedthefirstJudge Advocate General of the Navy.

mediate level court was the summary court-martial(called a special court-martial in the Army), composedof at least three officers. It could impose punishmentsof a bad conduct discharge, bread and water, and upto 30 days confinement or solitary confinement. Thegeneral court-martial in both the Navy and Army wasreserved for offenses that, in the convening officer'sopinion, were of the most serious nature, meritingmore significant punishment. The general court-martial was composed of no fewer than five officersand could impose sentences up to and includingdeath 8

The period following World War I brought pressurefor change in the military's justice system and set thestage for reforms bringing both streams of militaryjustice, sea and land, into the modern era.9 Duringthat time convening authorities sometimes appoint-ed members (jurors) to suit their own ends, trial-levelreviews were sometimes less than impartial, and law-yers were a rarity in courts-martial. There were nojudges, disinterested or otherwise. Meaningful reviewwas virtually nonexistent. Convening authorities couldorder reconsideration sessions and, indeed, duringWorld War I fully one-third of all Army court-martialacquittals were "revised" to findings of guilty in suchreconsideration sessions.b0 Until 1920 a court-martialconviction need only be approved by the officer whoconvened the court, except in officer dismissal anddeath cases.

The administration of military justice in the Navyand Marine Corps entailed similar inequities underNaval Courts and Boards, the Navy legal manual ofthe day, and Rocks and Shoals. During this period nolawyers or judge advocates acted as such in the Ma-rine Corps. Neither did the Navy place a particularlyhigh premium on uniformed lawyers. The World WarI Navy Judge Advocate General's Office boasted thatthere was not a single lawyer on its staff" In fact, theJudge Advocate General of the Navy was not requiredto be a lawyer until 1950.12

Akin to the Army's reconsideration session, NavalCourts and Boards provided the specific format for theorder directing members of a court-martial to reexa-mine their results with a view to stiffening a sentence:

1. The record of proceedings . . is returned herewith tothe court.

2. The [Navy] department, after careful consideration, isof the opinion that the sentence adjudged by the court isnot adequate to the offense found proved .

3. The court will reconvene for the purpose of reconsider.ing its sentence.'3

Such direction made clear what was expected.Public pressure grew for reform of the Army's justice

system. The result was the 1920 Articles of War, thefirst major legislative revision of Army law since theRevolutionary War, and the guide under which theArmy conducted its courts-martial until the KoreanWar. Although the Navy and Marine Corps' Articlesfor the Government of the Navy were not similarlyamended, a military-wide pattern for change was dis-cernible for the first time.

World War II and Beyond'Military Justice is to Justice

as Military Music is to Music

During World War II millions of Americans joinedthe ranks of the Armed Forces and, in far greater num-bers than in World War I, the citizen-soldier againcame into contact with military justice. There wereabout 1,700,000 convictions by courts-martial duringthe war.14 Sentences were often harsh and inconsistentwith inexplicable verdicts and, too often, overbearingcommand influence. This reflected, in part, the inex-perience of the personnel who comprised the courtsand the harsh views of some commanders as to thepurpose of military justice. As one antimilitary parti-san phrased it:

No one blushed in admitting that the court-martial wasnot a trial, that the commander used it to enforce his dis-ciplinary policies and inculcate military values in his men,


that it was administered by officers alone, that there was noright to review, and that the sentences were calculated toset an example and not to provide justice.'

It became apparent that what had worked wellenough for the small prewar Armed Services could notbear the stress of major wartime expansion in themodern day. The Marine Corps, for example, wasmanned at 65,881 on the eve of the war and reacheda peak strength of 484,631, an increase of almost 750percent.'6 Although official Marine Corps records ofthe number of courts-martial tried were not kept dur-ing World War II (nor were they kept until thelate-1960s), most were tried without lawyer participa-tion, suggesting the uneven quality of justice thatsometimes prevailed during those years.

During World War II the few regular Marine Corpsofficers with law degrees were assigned to Atlantic orPacific fleet headquarters or to Headquarters MarineCorps. For the remaining reservist-lawyers on activeduty, a law degree was simply an item of passing in-terest in his field record, like having been to barber'sschool. Not until mid-1942 was a staff legal advisorfirst provided for: a captain's billet on the staff of eachMarine division.' (An Army division, in contrast, wasauthorized a three-officer judge advocate section oflieutenant colonel, captain, and warrant officer, plustwo enlisted clerks.) Otherwise, a law degree only madeone assignable to each general court-martial tried inone's battalion; not necessarily viewed as a blessing.Rather than looking to lawyers, commanders divinedtheir legal counsel from hard-won experience andNaval Courts and Boards. Of course, having a billetfor a staff legal advisor required neither that the billetbe filled nor that the incumbent, if any, be a lawyer.Indeed, he usually was not, because lawyer-Marineswith career aspirations believed that being sidetrackedfrom a normal career path onto the dead-end legalroad (no major's billet for a legal advisor existed) wasnot the route to either command or promotion.Nevertheless, during the late war years the MarineCorps recognized the utility of lawyers and employedReserve officers, primarily, to fill its headquarters com-mands' legal billets. At war's end, by Marine Corpsbulletin, officer volunteers were again sought for post-graduate training in law, recognizing the need formore senior, regular officers who could lead the reser-vist lawyers.i8 The Marine Corps had periodicallysought officer-lawyer candidates in that way since af-ter ''orld War 119

With the end of the war unification of the Services

was in the air, and pressure again mounted for reex-amination of the military system of justice.20 TheAmerican Legion, other veteran's groups, and state barassociations all pressed for change. Studies were in-itiated and boards convened, all with reform as theirgoal.

Movement toward change was slow, but legislationmoved forward. In 1948 the U.S. Army'sJudge Advo-cate General's Corps was formed despite strong op-position by the Army Chief of Staff, General DwightD. Eisenhower.* He viewed the divorce of lawyers fromthe rest of the officer corps as contrary to Service har-mony. Since 1862 the Army had assigned "judge ad-vocates" to the headquarters of every field army. Until1948, however, any commissioned officer could bedesignated a "judge advocate."2i In addition to aJAGCorps, the Army's Articles of War were again moder-nized in 1948. The Navy sought to introduce a com-panion bill to the Army's, but was unsuccessful. TheNavy had waited to see the outcome of the Army'sbill and the congressional session ended before actioncould be taken on the Navy bill. So the Navy and Ma-rine Corps continued to operate under essentially thesame Articles for the Government of the Navy, whichthey had followed for two hundred years.

It was unclear if the 1948 Army modifications ap-plied to the newly established Air Force, formerly apart of the Army. Nevertheless, the Air Force quicklypublished its own blue-covered Manual for Courts-Martial and proceeded to trial. In fact, no military ap-pellate court ever decided whether or not the Air Forceproperly claimed jurisdiction for itself. The soon-enacted uniform code subsumed the Air Force manual,making it a moot point.

The Uniform Code of Military Justice, 1950:Old Ills Redressed

On 26 July 1947 legislation abolished the WarDepartment and created the Department of the Armyand the Department of the Air Force. Those twodepartments, along with the already existing Depart-ment of the Navy, were bunched under the newly

"Although the Army's modern JAG Corps was formed in 1948,the first Judge Advocate of the Army was appointed during theRevolutionary War, on 29 July 1775. In July 1862 the Congressprovided for an Army corps of judge advocates. The Army's Bureauof Military Justice, established in 1864, became the Judge Advo-cate General's Department in 1884, and, on 24June 1948, becamethe Judge Advocate General's Corps. (Mi/itaty Laws of the UnitedStates—1949 [Washington: Government Printing Office, 1950]Sec.62, p. 71-74.)


formed National Defense Establishment, which wasredesignated the Department of Defense in 1949.22The first Secretary of Defense, James V. Forrestal, tookoffice in September of 1947. He recognized that therecent legislation reforming the Army's court-martialsystem would soon become law and that it was con-trary to Armed Services unification. Secretary Forrestalacted to supersede the one-Service reform and toproduce a justice system applicable to all the Services.

He formed another committee, with a particularlyambitious and demanding mandate. He directed thecommittee to integrate the Army's (and the Air Force's)Articles of War, the Navy and Marine Corps' Articlesfor the Government of the Navy, and the DisciplinaryLaws of the Coast Guard.* Additionally, the commit-tee was to write a modern code "with a view to pro-tecting the rights of those subject to the code andincreasing public confidence in military justice,without impairing the performance of military func-tioflS."23 Secretary Forrestal had set them a formida-ble task.

Headed by Edmund M. Morgan, the members wereAssistant General Counsel of the Department ofDefense Felix E. Larkin and the Under-Secretaries ofthe Army, Navy, and Air Force. Morgan was a highlyrespected Harvard law professor and, along with Lar-kin, proved to be the driving force of the committeeand its team of supporting lawyers.

In January 1949 the Morgan Committee reportedto Secretary Forrestal that it had completed the writ-ing of a uniform code of 140 articles. Three issues re-mained upon which they could not agree. It fell tothe Secretary to make the decision, over Army objec-tion, to adopt a military appellate "Judicial Council"(or Court of Military Appeals, as it was finally desig-nated) of three civilians. The Secretary also approved,despite Navy objection, the seating of enlisted per-sonnel as court-martial members, if requested by anenlisted accused. Finally, a "law officer' who was re-quired to be a lawyer, gained approval, again over theNavy's objection. Although the Army had been em-ploying a "law member" in general courts-martial since

*The United States Coast Guard, a separate military service sinceJanuary 1915, first employed the Disciplinary Rules for the RevenueCutter Service as its disciplinary tool, later adopting the Discipli-nary Laws of the Coast Guard. In November 1941 it began operat-ing as part of the U.S. Navy for the war's duration, and came underthe Articles for the Government of the Navy. At the war's conclu-sion it again utilized its Disciplinary Laws until the 1950 UCMJ be-came effective. (50 CMR ix, 1975.)

1920, there had been no requirement that he be a law-yer until their short-lived 1948 modifications.

The modern trilogy of summary, special, and gener-al courts-martial was now in place for all Services. Forthe first time law officers — less than judges but morethan senior members—were required to be lawyers.Also, lawyer defense counsel and trial counsel (prose-cutors) were permitted at all levels of court-martial,although they were required only at general courts.In addition, any time the trial counsel was a lawyer,the code required that the defense counsel be simi-larly qualified.

Safeguards against improper command influence,a major concern of the drafters, were woven through-out the new code. Although no system could be madetotally immune from misuse, the Morgan Commit-tee, which was well aware of the public's concernregarding past problems, sought "to draw a line be-tween the commander's duty to enforce military lawand his power to influence its administration."24 Theyacted to preclude future abuses by, among otherthings, including two new articles making impropercommand influence a military crime.25 The capstoneof the effort was establishment of the Judicial Coun-cil, or Court of Military Appeals, the specializedcivilian tribunal empowered to entertain appellatereview.26 Finally, Article 36 of the new Code openedthe way for the last aspect of this major overhaul, anew Manual for Courts-Martial.

The first Uniform Code of Military Justice was alandmark achievement which brought the militarycourt-martial into the mainstream of contemporarylaw. The United States Court of Military Appeals, themilitary's highest court, later said:

Members of the legal profession within the military es-tablishment are made primarily responsible for the elimi-nation of the abuses formerly affecting military justice, andare relied upon for the establishment of a court-martial sys-tem truly judicial in viewpoint, and administered in accor-dance with established American concepts of jurisprudence7

The Code became law on 5 May 195028 President Tm-man ordered the 1951 Manual for Courts-Martial,which implemented it, into effect on 31 May 1951,repealing the Articles for the Government of the Navy,the Articles of War, and the Disciplinary Laws of theCoast Guard.**29 The Manualspecified that from that

**In 1955 the firstJAG Manual, then known as the Naval Sup-plement to the Manual for Courts-Martial, United States, 1951, was

published for the use of Navy law specialists and Marine Corps law-yers. It was six by nine inches in size and cost ten cents.


date Army and Air Force lawyers could be appointed"judge advocates." Navy and Coast Guard lawyers, itsaid, were to be "law specialists." Marine Corps law-yers, however, went unmentioned in the new manu-a1.° This, presumably, was because the draftersassumed the Navy would provide Marines their legalcounsel, as it did their chaplains and doctors. Thefailure to appreciate and provide for the fact that theCorps would want its lawyers to come from its ownranks was to have considerable effect. Over the next10 years, until Marine Corps lawyers were given theirown career pattern, it affected the promotions andcareers of Marine Corps lawyers, senior and junior, whowould find themselves in Vietnam courtrooms. Butin 1951, named in the Code or not, lawyers becamea fact of everyday Marine Corps life.

Continuing Tension: Justice Versus Discipline

Despite the barbs of critics, the phrase "militaryjustice" was no longer a contradiction in terms. Still,until the modest amendments of 1920 and the majorreform of 1950, discipline had prevailed while justicestood in shadow. As a 1945 editorial in the ChicagoTribune read:

Martial law was drafted in different times, for a differentkind of soldier to the one who wears the United States uni-form today. The professional soldier of a century or moreago was recruited, as often as not, from the dregs of society.When a weapon was placed in his hand the most savage dis-cipline was required to insure that he did not turn it againstthose whom he was enlisted to protect. Such a code is neithernecessary nor desirable to govern civilians in uniform defend-ing a free country of which they are free citizens.31

The reforms of 1950 reflected the continuing ques-tion of the purpose of military law: is it to enforce dis-cipline or to insure justice? Or both? Can both endsbe simultaneously served? If so, in what order?

Until 1950 the commander had great influence overcourts-martial. Trial procedure was simple, requiringno legal training or experience to employ it. Reviewprocedures lent themselves to quick confirmation ofverdict and sentence. In this way discipline was en-forced by demonstrating to all the swift punishmentof infractions. The influence of the commander wasnot lightly surrendered, nor the military lawyer eagerlyreceived. General William Tecumseh Sherman, him-self a lawyer, earlier stated from the commander's per-spective:

It will be a grave error if by negligence we permit the mili-tary law to become emasculated by allowing lawyers to in-ject into it the principles derived from their practice in thecivil courts, which belong to a totally different system of juris-diction 32

Marine Corps Colonel Olin W. Jones recalled "the en-mity of virtually all Marine Corps commanders to thenew system. This was the first time they had to be toldthey could not do many things they had done in thepast. . . . This transition period was difficult for manyof us."33

In the 1950 UCMJ the balance between disciplineand justice was apparent. The commander would ap-point counsel, members, and law officer, and have firstreview of the case. Lawyers would conduct the pretri-al investigation and guard against baseless charges. Thelaw officer would ensure a trial according to law. Hisperformance and the record of trial, as a whole, wouldbe subject to review not only by the commander, butby a military appellate panel. A second, final appel-late review would be in the hands of the all-civilianCourt of Military Appeals. Apropos of the court-martial which the new Code ushered in, trial attor-ney F. Lee Bailey, himself a former Marine Corps legalofficer, wrote: "The [civilian jury] system simply can'tbe counted on. In my opinion, despite all the criti-cism leveled at the military, the odds are that a mili-tary court will produce a more accurate verdict in adisputed issue of fact than a civilian jury."

The Death Penalty in the Armed Forces: Yes But No

In 1817 William Boyington, U.S. Marine Corps, wasexecuted by a firing squad, the last Marine to be putto death pursuant to the sentence of a court-martial.His offense goes unrecorded, but during that periodthe death penalty was reserved for mutiny, desertion,and murder. According to the sketchy and incompleterecords of the era, three other Marines were certainlyexecuted before Boyington, and another three proba-bly were.

There has not been an execution in the U.S. Navysince 1849 when two seamen were hanged from a ship'syardarm as a result of a mutiny on a smaliboat fromthe U.S. Survey Schooner Ewing. (Their conviction fol-lowed a spirited defense by a prominent civiliandefense attorney, paid for by the Navy.) Prior to theEwing hangings, five other sailors were certainly ex-ecuted and another three probably were. Among thefive known to have been executed, three were allegedmutineers of the brig-of-war Somers, hanged from theyardarm after a summary proceeding in 1842. One ofthe three was Midshipman Philip Spencer, son of aformer Secretary of War, which led to the "Somers In-cident" becoming a cause celebre. As a result of theexecutions the captain of the Somers, like the com-


modore who authorized hanging the Ewingmutineers, was himself tried by a court of inquiry. Thecommodore was suspended from duty for five years;the Somer's captain was exonerated. Since thosenineteenth century executions, a number of sailors andMarines have been condemned to death whose sen-tences were commuted to a lesser punishment.

In the U.S. Army 270 soldiers were executed priorto World War I. During World War 135 more wereexecuted, and during World War II 146 death sen-tences were carried out. (Two soldiers of that numberwere executed after the war as a result of sentences im-posed during the war.) Since implementation of theUniform Code of Military Justice in 1950, the Armyhas executed 10 soldiers, the last in 1961 for the rapeof an Austrian child.36 The U.S. Air Force executedthree men in 1948 and another two in 1954. Therehas not been a death sentence carried out by the U.S.Coast Guard.

The stark difference in the number of executeddeath sentences in the Army and the naval service wasdue to dissimilar procedures for approving them inthe naval services' Articles for the Government of theNavy and the Army's Articles of War. Under the Ar-ticles of War commanding generals of armies in thefield in time of war were empowered to order deathsentences carried out. The Articles for the Governmentof the Navy, on the other hand, required approval bythe President of the United States of any sentence todeath, except in very limited situations. With enact-ment of the UCMJ in 1950, approval procedures weremade uniform, and Presidential approval is now re-quired before a death sentence can be carried out inany armed service.

Since the last military execution in 1961 there havebeen numerous court-martial sentences to death, butas of this writing, all such sentences that have beenruled upon have either been mitigated to lesserpunishments or reversed by military appellate courts.Since 1986 the Army's prescribed method of execu-tion, although never put to use, has been lethal in-jection. The naval service has not prescribed a methodof execution.*

Before a court-martial may sentence a convictedserviceman or woman to death, the Man ual for Courts-Martial must authorize death as a penalty for theoffense, the officer referring the case to trial must spe-

*Rule for Court-Martial 1113(d)(1): 'A sentence to death whichhas been finally ordered executed shall be carried out in the man-ner prescribed by the Secretary concerned."

cifically authorize the court to consider death as a pos-sible punishment, and the members must unani-mously sentence the convicted individual to death.Other procedural steps complying with current U.S.Supreme Court opinions are mandated by Court ofMilitary Appeals decisions.

Marine Corps Lawyers:From The Line to Discipline Branch

Under the late Articles for the Government of theNavy there was no requirement for lawyers in a Ma-rine Corps general court-martial. The commander sim-ply could detail an officer to be the judge advocate(prosecutor), a "suitable officer" to be defense coun-sel, and five members and try the accused Until 1920(in the Army), a conviction only needed approval ofthe officer who convened the court for the sentenceto be executed, except in cases of officer dismissal ora death sentence. But in 1950, the Marine Corps andthe other services realized that the new UCMJ wouldrequire a great many lawyers to meet its requirements.Now the Marines had to survey those within its rankswho were law-trained but laboring in other orchards,as well as locating regular officers who wanted to be-come lawyers. In the next few years the Marine Corpsfound exemplary officers to meet the new challenge.

Colonel Hamilton M. Hoyler, for example, was aninfantry and artillery officer, as well as a Harvard LawSchool graduate. In World War II he saw action onTulagi and earned the Silver Star Medal on Guam,where he commanded a battalion. He was awardedthe Purple Heart for wounds received on Bougainvillewhile a member of the 3d Raider Battalion. Duringthe Korean War he commanded the 5th Marines and,before heading the Marine Corps' Discipline Branchin 1961, served as chief of staff of the 3d Marine Di-vision.

MajorJames F Lawrence, Jr., had been an infantryplatoon commander on Guadalcanal and Cape Glou-cester. In Korea he was awarded the Navy Cross forhis leadership of an infantry battalion during thebreakout from the Chosin reservoir. He gained his lawdegree in 1953 and later became the first officerpromoted to the grade of brigadier general as a lawyer.

Major Duane L. Faw held two Air Medals, earnedas a dive-bomber pilot in combat over Guadalcanal,Munda, Rabaul, and other World War II Pacific is-lands. He later was the first brigadier general Direc-tor of the Judge Advocate Division.

MajorJoseph R. Motelewski held a law degree whenhe was commissioned in 1942. As a motor transport


officer he saw combat on Guadalcanal and Peleliu. InKorea he briefly commanded the 1st Battalion, 7thMarines. In Vietnam he would be the chief of staffof the 3d Marine Division.

These men, and others, exemplified the MarineCorps tenet that every Marine is a rifleman. Comman-dants and commanders wanted their newly highlight-ed legal officers to be regular, as opposed to Reserve,officers with line experience and preferably with com-mand experience. Such a background provided an ad-vocate with insight into the problems of both thecommander and the enlisted Marine. But it proveddifficult and, finally, impossible to meet the desirefor lawyers with such qualifications.

Since the end of World War I the Marine Corps haddetailed a few officers each year to duty as law stu-dents, ordering them to civilian law schools. Duringthe 1920s and 30s it was Harvard University's Schoolof Law from which Marine Corps officers often gradu-ated.° During World War II the program languished,but thereafter several majors were sent each year tolaw school with full pay. The post-war program, whichplaced officers at George Washington, Georgetown,or Catholic Universities, all in Washington, D.C., wasin full force in 1950 in anticipation of the UCMJ's re-quirements for lawyers.41 Marine Corps law studentswere required to purchase their own books and to as-sume duties in the office of the judge Advocate Gener-al of the Navy during school breaks and vacations.Army, Air Force, and Coast Guard law students hadno similar requirements. Major Earl E. Anderson, astudent at George Washington University's law schoolfrom 1949 to 1952, recalled that "many of us had full-time [military] jobs. . . . Fbr example, for over a year,I was the Foreign Claims Officer for JAG, handlingall foreign claims."42 After 1952, largely due to MajorAnderson's petitioning the Judge Advocate Generalof the Navy on the matter, naval service law studentswere no longer required to simultaneously mix lawstudy and military duty, or to spend school breaks inthe office of the Navy JAG. During the 1950s thegraduating officer received a secondary military oc-cupational specialty (MOS) designator of 0185, tri-al/defense counsel, upon passing a state barexamination.

The assignment of a secondary, rather than aprimary MOS, after three years of specialized and ex-pensive civilian schooling, was significant. It reflect-ed a philosophy that legal work was the graduate'ssecondary job, his primary duty remaining infantry

Department of Defense Photo (USMC) 311245

Gen Clifton B. Cates, 19th Commandant of the Ma-rine Corps, was a second lieutenant in France duringIVorld lVar I, a year after graduating from law school.

command, or flying, or whatever his pre-law schoolspecialty had been. Every Marine a rifleman. It alsoput the lawyer who was a regular officer in a difficultposition.

In the years between World War II and Vietnam,a law degree, combined with command experience,was recognized as a positive factor in gainingpromotion — not necessarily to employ as one's primaryduty, but as an indication of drive, ambition, and abil-ity. Indeed, until 1967 when James Lawrence waspromoted to brigadier general, only three of the eightserving or future general officers who had lawdegrees — Cates, Anderson, Wensinger, Twining, Ax-tell, Beckington, Kier, and Snedeker — ever practiced


law in the Marine Corps, or anywhere else.* Yet in the1950s, the Marine Corps fostered an approach ofspecialization without application by creating lawyerson the one hand, while branding their specialty assecondary on the other. The Marine Corps lawyer withcareer ambitions recognized that he should try to re-main in his former nonlegal specialty and, more im-portantly, obtain command of a unit.** That outlooksquared with Headquarters Marine Corps' view thatlegal expertise was needed, but only as a specializedskill for the commander to call upon when neces-sary.*** The Marine Corps looked for a solution to the

*General Clifton B. Cates, 19th Commandant of the MarineCorps, was a 1916 University of Tennessee law school graduate. Heretired from the Marine Corps in 1953. General Earl E. Andersonwas a lieutenant colonel when he graduated from George Washing-ton University's school of law (as law review editor-in-chief) in 1952.For the next 12 years he mixed legal and aviation duties then, untilhis retirement in 1975, was an aviator and a senior staff officer. Lieu-tenant General Walter W. Wensinger was a 1917 University of Michi-gan law school graduate before joining the Marine Corps and, otherthan duty in the Office of the NavyJAG for three years, was a careerinfantry officer. General Merrill B. Twining, a 1932 graduate of Ge-orge Washington University's law school, was a career infantry officer.Lieutenant General George C. Axtell was a career aviator who gradu-ated from George Washington University's law school as a majorin 1952. Lieutenant General Herbert L. Beckington, an artillery andinfantry officer, graduated from Catholic University law school in1953, as a major. Major General Avery R. Kier was a 1927 graduateof Kansas City School of Law, but was a career aviator. BrigadierGeneral James Snedeker, an infantry officer, was a 1940 law schoolgraduate who represented the Marine Corps and the naval serviceon numerous boards and committees relating to military law, andwas the first Marine to hold the billet of Deputy Judge AdvocateGeneral of the Navy. In an earlier era, General Holland M. Smith,who retired in 1946, was a graduate of the University of Alabama'slaw school, and practiced, briefly, before entering the Marine Corps.(RefSec; and Gen Anderson 1cr to author, dtd 22Feb89; Andersonfolder, Marines and Military Law in Vietnam file, MCHC).

**After World War II, when the postgraduate law program wascurtailed for several years, Congress became concerned over the num-ber of new lawyers who were returning to their pre-law school mili-tary specialties without practicing that which had been paid for withpublic funds. Additionally, General Earl E. Anderson recalls thatNavy law specialists lobbied Congress for an end to Marine Corpsparticipation in the law program because of dissatisfaction that theirJAG and deputy JAGs remained line officers, rather than mem-bers of a JAG corps. (Gen Anderson 1cr to author, dtd 22Feb89,Anderson folder, Marines and Military Law in Vietnam file, MCHC).

***As late as 1964, the Commandant of the Marine Corps, Gener-al Wallace M. Greene, Jr., expressed that view when he said, Wewant Marine lawyers to vary their legal duties with command andstaff assignments because we feel they make better military lawyersas a result." (The Army, Navy, andAir Force Journal and Register,4Jan64, p. 13.)

issue of traditions versus specialization. Is every Ma-rine, including the lawyer, a rifleman? The MarineCorps found the answer in Vietnam.

During the 195 Os and 60s the legal community wasalso securing its position in the command structureof the Marine Corps. After World War II, lawyer as-signments were not tracked or controlled in any for-mal way, there being no reason to be concerned withattorneys. With the advent of the UCMJ and its man-date for lawyers, concern became a necessity.

Gen Holland M. Smith, seen in 1919 as a major inFrance, graduated from law school in 1903 and prac-ticedin Alabama before being commissioned in 1905.

Department of Defense Photo (USMC) 515291

•_''


Legal matters were conducted by Discipline Branch(usually referred to by its Headquarters designation,"Code DK"), a part of the Personnel Department ofHeadquarters Marine Corps. Although DisciplineBranch had existed during World War II, not until theUniform Code of Military Justice became effective wasDiscipline Branch headed by a lawyer.* The first at-torney to be designated head of Discipline Branch wasColonel James C. Bigler, who had been assigned tothe branch since 1949. Successive branch heads wereColonels St.Julien R. Marshall in 1952, Paul D. Sher-man in 1954, and John S. Twitchell in 1956. As law-yer identification, assignment and utilization becameroutine, Discipline Branch, or Code DK, evolved intoa branch concerned solely with legal matters.

In the late 1950s the Commandant found it difficultto meet the requirements for junior officer-lawyers.The Marine Corps had 129 officer-lawyer billets, filledprimarily by Reserve officers augmented by a fewsenior, regular officer-lawyers who alternated betweenlegal and nonlegal assignments. Lawyer shortages werea continuing problem. To resolve that problem, in1959 the Commandant proposed establishing a new,primary MOS for lawyers who desired to perform onlylegal duties. He also proposed safeguards against pro-motion discrimination and sought more reservists tomeet the expanding requirement for lawyers. Hehoped to avoid a separate legal corps, such as the Navywas proposing.43 By Marine Corps order Reserve law-yers were soon being recruited as candidates for regu-lar commissions Within two years 0185 (trial/defensecounsel), and 0195 (law officer), became primaryMOSs, assigned upon graduation from law school andthe passing of a state bar examination, and lawyerswere assured equality of promotion opportunity.**45

That was the situation on the eve of the Marinelandings at Da Nang in March 1965. The U.S. Army'sJAG Corps had existed since 1948. The Air Force em-ployed a de facto JAG Corps while claiming opposi-tion to a separate category of lawyer-officer. The Navy

*Before 1941, legal issues arising in the field, few as they were,were an aspect of the personnel officer's duties. Courts-martial andlegal matters were first mentioned in Headquarters Marine Corps'organization in 1941 when the Personnel Department formed aCourts and Boards Branch. Courts and Boards evolved into Dis-cipline Section, then Discipline Division, and finally, DisciplineBranch, which continued in existence until the Judge Advocate Di-vision came into being on 17 April 1968. (RefSec, MCHC).

**In 1964 the 4405 MOS designator was first assigned MarineCorps lawyers. (LtCol Brian B. Kent ltr to author, dtd 28Feb89, Com-ment folder, Marines and Military Law in Vietnam file, MCHC).

was seeking legislation providing for its own JAGCorps, but the Marines opposed it because the intend-ed legislation precluded a Marine from again becom-ing the Judge Advocate General of the Navy, no matterhow remote such a possibility was6 (The Navy hadto wait until 8 December 1967 for its lawyer-officersto become aJAG Corps.)47 The Marines, while com-plaining that one of their own could not be Navy JAG,insisted that a Marine Corps JAG corps was neitherneeded nor desired.

In Support: Navy Lawyers

In 1942 the Naval Courts and Boards TrainingCourse was established at the Advance Base Receiv-ing Barracks, Port Hueneme, California. It was thenaval services' first legal school attended by both Navyand Marine Corps personnel. In April 1946 a seven-week training course for Navy yeomen and Marine le-gal clerks was added to the curriculum, and in Febru-ary 1950 the school, now redesignated the U.S. NavalSchool (Naval Justice), was relocated to the Naval Base,Newport, Rhode Island. It was again redesignated inMay 1961, this time as the Naval Justice School.

In 1965 Navy lawyers were properly referred to as"law specialists." Confusingly, law specialists could alsobe staff judge advocates, if assigned that specific billeton the special staff of a commander. The title "staffjudge advocate" was a carryover from the period be-fore the UCMJ, when the senior officer in a legal billeton the commander's staff was referred to as the "staffjudge advocate," whether he was a lawyer or a layman.Marine Corps lawyers remained unmentioned and un-titled in the UCMJ. Nevertheless, as with their Navycounterparts, if they served in a legal billet, they werecommonly, if inaccurately, called "judge advocates."

The UCMJ's omission of the Marine Corps lawyerhad an effect on a more substantive level. Records ofcourt-martial proceedings must be reviewed for legalsufficiency and correctness. Cases involving significantpunishment, as defined in the Uniform Code, re-quired review by appellate courts. The 1950 UCMJspecified that the records of some lower-level courts,summaries and specials that did not include a bad con-duct discharge as a part of the sentence, need not goto the appellate level. They did, however, requirereview for legal sufficiency and correctness by a lawspecialist or judge advocate. Marine Corps lawyers, notbeing classified as either, were in the position ofprosecuting significant numbers of courts-martialwhile lacking the authority to review many of them.The solution was for the Navy to assign a law

specialists, who were authorized to conduct the re-quired review, to all major Marine commands that con-vened courts-martial. The Navy was glad toaccommodate the Marines, because such assignmentsoffered Navy lawyers a broader exposure to militaryjustice practice. In exchange, Marine Corps lawyers inroughly equal number were assigned to Navy legaloffices and the appellate sections in the Office of theJudge Advocate General of the Navy.48

The Navy sought legislation, with Marine Corpsconcurrence, to amend the UCMJ to permit review ofall court-martial records by "any qualified officer law-yer of the Navy or the Marine Corps, whether or nothe is designated as a law specialist."9 But in Marchof 1965, when the Vietnam landings occurred, pas-sage of that amendment was several years away andthe Marine Corps relied on Navy lawyers to help manits legal offices. At the same time, Headquarters Ma-rine Corps continued to hold that Marine Corps law-yers remained unrestricted officers who could serve in

any billet. By fiat, every Marine was still a rifleman.*

In Washington disagreement continued betweenthe Marine Corps and the Navy's Judge AdvocateGeneral's office over the establishment of a Navy JAGcorps. The Marines still opposed legislation offered bythe Navy that would create a Navy JAG corps, nowbecause the Navy would not include provision for aMarine Corps AssistantJudge Advocate General of theNavy, a rear admiral/brigadier general billet.5° (The

*During this period, acceptance of a primary legal MOS was stilloptional for regular officers. Lawyers commissioned prior to 1961had primary MOSs other than legal. Another Marine Corps orderdecreed that "when there is a sufficient number of lawyers to meetthe needs of the Marine Corps, those officers not assigned a primarylegal MOS will be detailed to assignments other than legalin accordance with the requirements of the Marine Corps." (Head-quarters, U.S. Marine Corps, Division of Information, Service In-formation Release, Release No. RWJ-67-63, 29Mar63; and MCO1040.21, dtd 26Dec62, Subj: Marine Corps Lawyers; policy concern-ing, Para 3.b(3); 4400 MOS Establishment folder, Marines and Miii.tary Law in Vietnam file, MCHC).


- Photo courtesy of Col Robert C. Lehnert, USMC (Ret.)

The staff of the Naval School ofJustice, Port Hueneme, California, March 1948. lstLtRobert C. Lehnert, secondfrom right, was the school's first Marine Corps instructor thoughnot yet a lawyer In 1967 he became Staff Legal Officer of the 1st Marine Aircraft W/ing inDa Nang, Vietnam. His relief at the School ofJustice was Capt W/illiam A. Murphy,USMC, secondfrom left. Navy Li' (later Capt) W/yman N. Jackson, third from right, was alaw officer in Vietnam during 1966 and 1967. The school's commanding officer Cdr (laterRAdm) Frederick Albrink, center later was Assistant Judge Advocate General of the Navy.

lullSTATES NAVAL SCHOOL OF J(


Marines had given up their insistence that languagebe included in the legislation to provide for the possibility of a Marine in the top billet, Judge AdvocateGeneral of the Navy.) This conflict, though withoutimpact on Marine Corps lawyers in Vietnam, raisedbasic issues. For example, in the Navy legal community it was suggested that there should only be one"law firm," and it should wear a blue suit; that is, becomposed entirely of Navy personnel,51 Eventually, theMarine Corps itself was to ask if that might not bethe wiser course.52

In Support: Headquarters Man'ne Corps

Critical to Marine Corps lawyers in Vietnam was thesupport of those in charge of legal matters at Headquarters Marine Corps. Since the UCMJ had gone intoeffect, the number of Marine Corps lawyers had grownsignificantly. Headquarters' Discipline Branch continued its evolution within the Personnel Department.In the branch's Navy Annex offices plans were formulated for eventually moving from Personnel and making "legal" a separate division. Colonel John S.Twitchell and his successors, Colonels Hamilton M.Hoyler, Robert A. Scherr, and Robert B. Neville, laidthe groundwork for the future Judge Advocate Division during their tenures in Discipline Branch, from1956 to 1966.53

The problems they faced were daunting. Shouldlawyers be assigned only legal duty? If so, that wouldreduce the number of lawyers required and probablyenSure "green suit" (Marine), rather than "blue suit"(Navy) lawyers. Legislation to this effect was proposedin 1958, but then withdrawn for fear of establishinga single-skill, JAG-type corps in the Marines. Instead,in 1962, a Marine Corps order established the compromise policy that regular officers would not have toperform solely legal duties if they did not wish to, butcould if they wanted; on the other hand, Reserve lawyers (usually captains and lieutenants) could serve onlyin legal billets. A later modification established thepolicy that lieutenant and captain lawyers would serveone tour of duty out of three in a nonlegal billet.Presumably, this would ensure that every Marine wouldcontinue to be a rifleman.54 Another issue was the lawyers' continuing concern that they might not receiveconsideration by promotion boards equal to that ofline officers.* In 1964 that, too, was addressed by Ma-

*A "line officer" is an officer assigned ro rhe com bar arms of rheservice involved. In rhe case of rhe Marine Corps rhose are infanrry.arrillery. armor, and engineer officers; as opposed ro sraff, service,and specialisr officers.

rine Corps order.55 Further, to be on a par with theother services, Marine Corps lawyers sought credit forthe time spent in law school preparing for the specialized duty they performed. Such "constructive service"would be significant when promotion eligibility wasconsidered, because the practical effect would be thatlawyers would be promoted to captain with less timeon active duty than nonlawyer officers.

Without constructive service, not only was there alack of recognition for the effort and time spentpreparing to become a service lawyer, but disparitiesin grade could arise between lawyers. Captain W. HaysParks, for example, initiated his service while still acollege undergraduate. He arrived in Vietnam sevenyears later, a captain with seven years time in service.Although he had not been on active duty, he had beenadvanced in grade throughout the seven years he hadbeen in college and law school. His law school classmate,Jerald D. Crow, was commissioned upon graduation from law school, and arrived in Vietnam at aboutthe same time as Captain Parks. Without constructive service, and because of his later commissioningdate, Crow was a second lieutenant receiving littlemore than half the pay that Captain Parks did.56 Constructive service would have put the two officers, whohad equal time actually in uniform, on a par, ratherthan essentially rewarding Parks for merely havingsigned his service contract earlier. Legislation was proposed to meet the constructive service issue, but it remained unresolved for several more years.

The number of lawyers being commissioned in theMarine Corps was not sufficient to meet the needs ofa Service expanding to meet the Vietnam War. Nordid the pressure of the draft entirely close the lawyermanpower gap. A solution came in 1961, when a traditional source of officer accessions, the Platoon Leaders' Class (PLC), was expanded to embrace law studentcandidates as well as undergraduates who intended topursue a law degree following graduation.57 The PLC(Law) program allowed prospective officers betweencollege graduation and law school to be commissionedas second lieutenants. Previously this route had beenopen only to graduating college seniors who could immediately begin Marine officer training. The PLC(Law) program, by committing lawyers to MarineCorps service before law school, addressed the shortage of lieutenants and captains. However, the continuing paucity of midlevellawyers, majors and lieutenantcolonels, was a retention problem which was to burden the Marine Corps for the entire war.

14

Solutions to the problems were hammered out.Lawyers soon were assigned legal duty almost exclusively; the Commandant directed parity in promotions; and law school graduates were to receiveconstructive service. Those resolutions and their implementation were the result of long planning, intenseeffort, and inspired staff work. The officers in Discipline Branch in the late 1950s and early 1960s madethe UCMJ a practical and workable system of militaryjustice in the Marine Corps.

Among those matters upon which they advised theCommandant was the legal status of those Marineswho were to land in Vietnam: invaders or invitees?

The Pentalateral Agreement: Diplomatic Riflemen

Few Marine riflemen in Vietnam knew that in termsof legal jurisdiction they were considered to be diplomatic mission clerks.

A basic tenet of international law is that the courtsof a country have jurisdiction to try all cases arisingout of wrongful acts committed in that country. WithVietnam's permission the United States could, in Vietnam, try US. citizens for wrongful acts committed inVietnam, or lacking permission, the trial could be heldelsewhere. But generally, a sovereign state has primaryjurisdiction over all persons within its territory. Thisincludes the military personnel of another nation, unless the host state consents to surrender its jurisdiction.58

The United States, naturally, desired to retain thegreatest possible measure of jurisdiction over its ownforces in Vietnam. In time of peace jurisdiction is amatter for negotiation with a host country, formalizedin a status of forces agreement, or SOFA.*

Usually a SOFA is not concluded when one nationis engaged in a war on the soil of another nation.Moreover, in Vietnam government courts were stillfunctioning and, according to international law, thosecourts retained primary jurisdiction over Americantroops in Vietnam. Clearly, an accord regarding jurisdiction was needed.

The Agreement for Mutual Defense Assistance inIndochina, commonly referred to as the PentalateralAgreement, was concluded long before the 1965 landings, and resolved the issue of jurisdiction. That docu-

*The concept of a SOFA first arose in 1941, when the UnitedStates leased bases in Great Britain in exchange for destroyers. Theconcept was "perfected" in the North Atlantic Treaty SOFA of 1951.(Burdick H. Brittin, International Law For Seagoing Officers (Annapolis: Naval Institute Press, 4th ed., 1981), pp. 187-193.

MARINES AND MILITARY LAW IN VIETNAM

ment, governing the legal status, rights, andobligations of American personnel in Vietnam, wassigned in Saigon by the United States, France, Cambodia, Laos, and Vietnam on 23 December 1950.Although similar to mutual defense assistance agreements the United States had concluded with other allies, the Pentalateral Agreement was brief (less thansix pages long), and its terms were broad and general, leaving many legal questions to be settled on a caseby-case basis.

The agreement provided that all American forcesentering Indochina were to be considered membersof the US. diplomatic mission with the same legal status as actual members of the US. mission of corresponding grade. American military personnel weredivided into three categories: senior military membersof the US. mission with full diplomatic status; a lesser, undefined category which, significantly, excludedits membership from the civil and criminal jurisdiction of Vietnam; and the third category, whose membership was again undefined, but with the legal statusof clerical personnel of the diplomatic mission. In1958, the United States advised the Vietnamesegovernment that it would consider top US. militarycommanders to be in the first category, officers andwarrant officers to be in the second, and enlisted mento be in the third category. So, in diplomatic terms,Marine riflemen were considered diplomatic missionclerks. Major General George S. Prugh, Judge Advocate General of the Army, wrote:

When the pentalateral agreement was signed in 1950, thesignatory parties obviously meant the agreement to applyto the activities of the small U.S. Military Advisory AssistanceGroup staffs operating at the time in Cambodia, Laos, andVietnam. During the early 1950s, there were 200 to 300 ofthese military advisors .... It is unlikely that the diplomats ever imagined that its simple provisions would governthe legal StatuS and activities of almost 600,000 Americansin Vietnam. Yet ... no more detailed agreement was evernegotiateds •

As Major General Prugh pointed out, once largenumbers of American forces were in the country, theywere immediately engaged in combat, and a status offorces agreement, a peacetime document, never became necessary. The Pentalateral Agreement provided a minimal but adequate framework, and thegenerality of its provisions allowed a flexibility thatproved valuable in meeting the many legal complications that were to arise.ao

The legal status of American civilians in Vietnam,other than the actual diplomatic mission, was not ad-


Department of Defense Photo (USA) SC-613296

LtCol Paul J. Durbin was Deputy Staff JudgeAdvocate, US. Army, Pacific, when selected for tem-porary duty in Saigon in June 1959, the first ArmedService lawyer to be assigned legal duty in Vietnam.

dressed when the Pentalateral Agreement was reached.Eventually, 10,100 civilians would be in Vietnam, com-mitting their share of criminal offenses, so their legalstatus and amenability to trial was no small issue. In1965 military dependents, contractor employees, mer-chant seamen, reporters, and businessmen, were notconsidered by the American military legal system inVietnam. Marine Corps lawyers would later be close-ly involved in the question of whether Americancivilians were subject to court-martial jurisdiction.

Military Law Comes to Vietnam

President Truman ordered the establishment of aU.S. Military Assistance Advisory Group (MAAG) inFrench Indochina, to provide materiel support to theFrench Expeditionary Corps fighting there. LieutenantColonel Victor J. Croizat, the first Marine Corps ad-visor to serve in Vietnam, arrived in August 1954'Five years later, inJune 1959, Lieutenant Colonel PaulJ. Durbin, U.S. Army, was the first military lawyer as-signed to Vietnam. He and five successor Army law-yers served on the staff of the U.S. Army Element,MAAG, in Saigon before Captain Pete Kress, the firstMarine assigned exclusively for legal duty in Vietnam,arrived in March 1965.62

Beginning in May of 1961, volunteers from the 3dMarine Division, on Okinawa, and the 1st Marine Air-craft Wing, at Iwakuni, Japan, went to Vietnam as ad-

visors for 30-day periods. In April 1962 a Marinehelicopter squadron deployed from Okinawa to an oldJapanese-built landing strip near Soc Trang. It sup-ported forces of the Government of Vietnam battlingCommunist guerrillas. The squadron and its support-ing establishment, known by the codename Shufly,moved from Soc Trang to Da Nang five months later.The French had rebuilt Da Nang's civilian airfield asa military base following World War II. The airbase,surrounded by the city itself, was relatively modernand was occupied by Vietnamese and U.S. Air Forceunits. It served the city as a commercial airport, as wellas a military airbase.63

Marine Corps lawyers stationed in Japan and Okina-wa noted that units were deployed in combat and con-sidered how they also might get to where the actionwas. First Lieutenant Robert J. Blum, on temporaryadditional duty with Marine Aircraft Group 11 atP'ing-Tung, Formosa, convinced his commandingofficer that the Marines at Da Nang were in need oflegal assistance. (Legal assistance is the military termfor counsel on virtually any legal matter other thanmilitary justice, e.g., indebtedness, divorce, taxes,adoption, to name but a few.) On 18 April 1963, Lieu-

The Da Nang Airbase was closely surrounded by thecity of Da Nang. 9th MEB Headquarters and CaptKress' office lay just to the left of the runways.

Department of Defense Photo (USMC) A423023

"'-i

1.iJI

MARINES AND MILITARY LAW IN VIETNAM

Courtesy of Col Robert J. Blum, USMC (Ret.)

lstLt Robert J. B/urn was in Da Nang on 18 April 1963 to provide legal assistance forShufly Marines alrnost a year before the 9th Marine Expeditionary Brigade landed

tenant Bob Blum became the first Marine to reachVietnam as a lawyer, and provided legal assistance forthree days to the Shufly Marines. Although he did pro-vide a service to the aviation unit, in truth, he said,he wrangled his way in-country "mostly just to seewhat was going on." Three months later he was againdirected to Da Nang, this time to conduct a pretrialinvestigation.64

Two months after Lieutenant Blum's Vietnam visit,in June 1963, Colonel Earl E. Anderson arrived atMAAG Headquarters in Saigon to assume duties aschief of staff of the MAAG. Since attainment of hislaw degree in 1952, Colonel Anderson had been thestaff legal officer of the 3d Marine Aircraft Wing, inaddition to commanding several aviation units.* hiVietnam, Colonel Anderson served as chief of staff ofthe MAAG for the next year, while also flying morethan 40 combat missions.65

A few other Marine Corps lawyers were in Vietnam

*Colonel Anderson had no further assignments in the legal field.After billets including Commanding General, Fleet Marine Force,Atlantic, and Assistant Commandant of the Marine Corps, he re-tired in 1975 as a general.

before the 9th MEB landed in March 1965. Major Bri-an B. Kent went ashore at Da Nang in September orOctober 1964 as counsel to an investigation conduct-ed by the 1st Marine Aircraft Wing inspector. Therehad been reports that helicopter extractions had beennegligently delayed, resulting in casualties to theSouth Vietnamese and their U.S. Marine Corps advi-sors. Major Kent remained in Vietnam for a week. Theinvestigation determined that the delays had result-ed from an insufficient number of available aircraft.66Major Paul F. Henderson, Jr., accompanied othermembers of the 9th MEB staff to Shufly headquart-ers for a week-long period in August 1964.67 A fewweeks before the Marine landings the staff legal officerof the 3d Marine Division, Colonel Olin W. Jones, ac-companied the division commanding general on a liai-son visit to Da Nang and Hue, as well.68

On the day of the initial 1965 Marine Corps land-ings, when Captain Pete Kress arrived for duty, Navylaw specialist Lieutenant Hugh D. Campbell was al-ready ashore at Da Nang. He was on temporary dutyfrom the 3d Marine Division and provided income taxlegal assistance to Shufly personnel.69 The Navy andMarine Corps joint legal support for Vietnam Marines


represented by Captain Kress and Lieutenant Camp-bell was to continue throughout the war and beyond.

A Beginning

On 8 March 1965 when Captain Kress stepped fromthe C-130 that had brought him to Da Nang, therewere 168 lawyers in the Marine Corps.* Only 83 ofthem were regular officers. Forty-five percent of themwere majors or above — an inordinately high percen-tage of supervisory officers. But the stage was set fortrials in a combat zone.

*Qf this number 19 were colonels, 34 lieutenant colonels (in-cluding the sole woman lawyer in the Marine Corps, LtCoI Lily H.Gridley, a non-deployable reservist who was the long-time legal as-sistance officer at Headquarters Marine Corps in Washington), 25majors, 20 captains, 60 first lieutenants, 9 second lieutenants, anda CWO-2 who had first enlisted in 1935. Two colonels and a majorwere lawyers but did not practice law in the Marine Corps. (HQMC,Code Al, Directory of Marine Officer Lawyers, dtd 1May65; Direc-tories folder, Marines and Military Law in Vietnam file, MCHC).

Marine Corps Historical Collection

Gen Earl E. Anderson, here a colonel, received theLegion of Merit with Combat "V" on 15 October 1964for service with the MAAG in Saigon. In 1952 he waseditor-in-chief of the George Washington Universitylaw review and graduated with highest honors.

—4

I

CHAPTER 2

1965: 3d Marine Division and 9th MEB Open ShopFrom aLawyer's Case File: One Homicide, Two Vzctzms - Tryzng Cases - III MAF: Headquarters Wtihout Lawyers1st Marine Aircraft Wing: Touching Down-Legal Duty zn a Combat Zone: Problems-From aLawyer's Case File:

The Marine Corps' First war Crime Convzction in Vietnam-Perspective

Captain Peter N. Kress, acting Staff Legal Officer(Sill) of the newly arrived 9th Marine ExpeditionaryBrigade (MEB), discovered that he was less than overworked. In fact, his earliest employment of any significance was as the civil affairs officer, his secondaryassignment.

Rats infested the old French compound that wasnow the MEB headquarters and billeting area. Thequestion put to the legal-cum-civic action officer washow best to end this situation; traps or poison?Presumably Captain Kress fell heir to the problem because of the potential impact that poisoned rats mighthave upon the surrounding Vietnamese community.On occasion, the rodents found their way into the local diet. The consequences of civilian illness or deathcaused by American poison would be tragic. Sagely,Captain Kress recommended traps, which were subsequently requisitioned from Okinawa, delivered, andput to use. The value of a legal officer was thus demonstrated on another Marine Corps field of conflict.

In early May the MEB was redesignated III MarineAmphibious Force (III MAF), reflecting the Marines'increased strength and role in Vietnam. The changein designation had no effect on the legal section, whichcontinued to service III MAF Headquarters, the 3dMarine Division, and until late May, the 1st MarineAircraft Wing, as well.

Until 9th MEB's arrival in Vietnam, Shufly's fewcases requiring ttial by special or general coun-martialhad been disposed of by sending the accused and theessential witnesses back to Okinawa or to Atsugi,Japan, for trial. With so many Marines now in Vietnam, that course was less practical.

The first potential general coun-martial case arosein March 1965, when a returning Marine patrol wasmistakenly fired upon by other Marines, resulting inthe death of two, and the wounding of twO others.Captain Kress requested legal suppon from ColonelOlin W. Jones, the 3d Marine Division Sill on Okinawa, who dispatched First Lieutenants Frederick C.Woodruff and Donald W. Harris from Okinawa to actas defense counsels in the investigation of the incident.They joined Captain Kress and the two enlisted clerkswho made up the MEB legal office. They were soon

18

joined by Navy law specialist Lieutenant (junior grade)Keith G. O'Brian.

Eventually an Anicle 32 investigation, akin to acivilian court's preliminary hearing, was held in theairbase chapel, to the distress of the Navy chaplain.(In time, Vietnam courts-martial were routinely triedin messhalls, officers' clubs, staff offices, chapelsany place with sufficient seating space.) An unnoticedelecttical outage stopped the recording of the proceeding before its conclusion and made the required verbatim transcript impossible. The panial record,though, was sufficient to allow the 9th MEB commanding general and convening authority, BrigadierGeneral Fredetick]. Karch, to determine that a counmanial was not warranted. The difficulty with electrical power, however, was a ponent of generatorfailures, power drops, surges, and outages that wouldplague courts-martial as long as the Marines remainedin Vietnam.

In April 1965 civil affairs and legal maners increasedas the number of Marines in Vietnam increased. Twoof the 3d Marine Division lawyers who had augmented Captain Kress' office for the shooting investigation,Lieutenant Harris and Navy Lieutenant O'Brian, remained in Da Nang, Lieutenant Harris as III MAF'sfirst civil affairs officer.! Lieutenant Harris' initial assignment was to write a handbook on civil affairs, asubject about which he knew little. Undaunted, hevisited a U.S. Army Special Forces unit in Da Nangand borrowed its Army civil affairs field manual. Hecopied most of it in longhand, making appropriatechanges to conform to Marine Corps terminology, andforwarded "his" handbook to the comnianding general. It was returned with the notation, "outstanding job,lieutenant." Lieutenant Harris' nonlegal assignmentwas secure.2 His later Navy Achievement Medal recognized his more substantive achievement in the Vietnamese pacification program.3

Sometime later the commanding general directedCaptain Kress to confer with Colonel George S. Prugh,the U.S. Army's StaffJudge Advocate at the U.S. Military Advisory Command, Vietnam (MACV), in Saigon. Colonel Prugh, a future Judge Advocate Generalof the Army, and Captain Kress coordinated commu-

nication procedures between their respective legaloffices, methods of handling foreign claims (overwhich the Army had cognizance), and other routineadministrative matters That was the second of manymeetings between Army judge advocates in Saigon andMarine Corps lawyers in III MAE The first had beenon 18 March 1965, when Colonel Prugh, along withhis Vietnamese counterpart, Colonel Nguyen MongBich, and the MACV Chief of Claims, had flown toDa Nang to meet Captain Kress, discuss claims mat-ters, and tour Marine Corps positions. Colonel Prughsaid, "I think we enjoyed excellent relationships be-tween MACV and Marine lawyers."

Through mid-1965 the 3d Marine Division (Rear),on Okinawa, continued to provide legal support forthe 9th MEB/IlI MAE Before the level of the division'seventual involvement in Vietnam became apparent,Colonel Jones, the Division SW, planned to rotatethe MAF's legal officer every few months. According-ly, in May 1965, MajorJames P. King deployed from

Okinawa to Da Nang to replace Captain Kress, whoreturned to Okinawa. On 1 July Lieutenant ColonelThomas B. Sparkman, in turn, replaced Major King.On 1 August Lieutenant Colonel Sparkman was suc-ceeded by Lieutenant Colonel Charles B. Sevier, whoassumed the billet of Staff Legal Officer, the first inVietnam to hold the title as well as the billet.6 Lieu-tenant Colonel Tom Sparkman remained as LieutenantColonel Sevier's deputy.

The SI.Os' increase in grade, from captain to lieu-tenant colonel in a period of five months, reflectedthe accelerating pace of Marine Corps deployments toVietnam. In April two battalion landing teams anda regimental landing team headquarters arrived, fol-lowed by three squadrons of the 1st Marine AircraftWing. Those additions brought Marine Corps strengthin Vietnam to 8,878. The future requirements for in-creased legal support, however, were not yet recog-nized, either on Okinawa or at Headquarters MarineCorps in Washington.

1965: 3D MARINE DIVISION AND 9TH MEB OPEN SHOP 19

Department of Defense Photo (USMC) A-184276

Commanding General BGen Frederick]. Karch, sits fifth from right, and Capt Peter N.Kress, acting staff legal offlcer and lstLt Donald W Hams, civil affairs officer stand,center row, seventh and fourth from right, in this photo of 9th MEB staff in May 1965.


In May 1965 airbase construction began at Chu Lai,a barren stretch of coastline 57 miles southeast of DaNang, where previously there had been no permanentAmerican military presence. Three more battalionlanding teams arrived there, and the 1st Marine Air-craft Wing established a forward headquarters at ChuLai, as well.

By mid-June another 9,000 Marines were ashore inthe three enclaves, now established at Da Nang, ChuLai, and Phu Bai. In July Okinawa's 3d Marine Divi-sion (Rear) joined 3d Marine Division (Forward), unit-ing the division in Vietnam. In August the newcommanding general of both III MAF and the 3d Ma-rine Division, Major General Lewis W. Walt, split thedivision staff by establishing another headquarters,Task Force X-Ray, at Chu LaiY As the build-upproceeded, the lawyers' caseloads increased as well. TheIII MAF SLO's small section was still servicing boththe MAF headquarters and the 3d Marine Division,both of which had grown in size dramatically, as wellas units of the 1st Marine Aircraft Wing.

The SLO, Lieutenant Colonel Charlie Sevier, hadalready been selected for promotion to colonel whenhe arrived in Vietnam. He had been an enlisted Ma-rine in World War II, eventually becoming a lieutenantand a tank platoon commander. He had seen combaton Saipan, Tinian, and Okinawa and after the warearned his law degree and returned to active duty andthe Korean War. In 1956 he was the prosecutor in thewidely reported McKeon case, in which a Parris Islanddrill instructor was convicted of negligent homicidein the drowning deaths of six recruits at Ribbon Creek8

Now in his third war, Lieutenant Colonel Sevier not-ed that, at first, the division moved support person-nel, including lawyers, from Okinawa to Vietnam onlywith reluctance. An example was demonstrated byMajor King, a 3d Division lawyer trained in civil af-fairs. Major King, having been relieved as the III MAFlegal officer by Lieutenant Colonel Sparkman, wishedto remain in Vietnam. Although there were no vacantlegal billets, Major King prevailed upon the SLO onOkinawa to offer him to III MAF as the civil affairsofficer, replacing Lieutenant Harris. Not long afterMajor King's arrival in Da Nang the commandinggeneral spotted him and, recognizing him as a law-yer, growled, "What the hell are you doing here?"9Nevertheless, for the first time since the Korean War,Marine Corps lawyers were in the field with combatelements. As support personnel, they had no directrole in combat operations, but answered the com-mander's need for specialized advice and support.

Photo courtesy of BGen James P. King, USMC (Ret.)

Maj James P King, Ill MAF Civil Affairs Officercenter looks on as an officer is questioned by LtGenVictor H. Krulak, the Commanding General, FleetMarine Force, Pacific, at Chu Li in May 1965.

For a year after the initial landings the Staff LegalOffice for III MAF headquarters and the 3d MarineDivision remained a single office. Major General Waltcommanded both units. Lieutenant Colonel Sevierrecalled, "Walt had two hats. We talked to him inwhichever office we happened to catch him, abouteither [unitj."° Although this duality of commandoften led to confused staff work, it was not a problemfor the SW, because the few court-martial casespresented no difficulty.h1 A general court-martial wasnot held in Vietnam for four months after the land-ings.'2 Initially, the Marines were too busy to fall preyto disciplinary problems. Lieutenant Colonel Seviersaid, "when we first got down there, they were not letstray too much. . . . It's a combat situation that's newto them, so initially you don't get a lot of trouble. It'sonly when they've been in country a while and they'vegot their confidence built up."

Lieutenant Colonel Sevier's new deputy, Major FredGrabowski, proved adept at the location and procure-ment of materiel useful to the legal office, oftenwithout disturbing usual supply channels. Shortly after

I¼

t


his arrival, inJuly 1965, Major Grabowski acquired fourhighly valued general purpose tents. One of these hegave to new-found acquaintances in a nearby wing en-gineer unit. They, in return, constructed wooden fram-ing and flooring for the remaining three tents, whichwere erected near the rear of MAF/Division Head-quarters. The tents allowed the small legal staff tomove from a partitioned corner of the messhall wherethey had previously been located. One of the tentswas employed as the work space for the SW, hisdeputy, and the enlisted legal chief, Master SergeantHarold L. Tetrick; another was for the defense coun-sels, legal assistance, and claims lawyers; the third wasfor trial counsels. Later, a fourth tent was added andused as a "courtroom," to the relief of the chaplain,as well as the mess chief, whose messhall had also beenpressed into service as a hearing room.14

The tents' sides could be rolled up in hot weather,but that provided little relief. The dank, heavy odorof a hot tent was not soon forgotten. The tentagefound in Vietnam was old. Rain created problems of

leakage, damage to documents, and drainage. Still,the lawyers knew they were better off than the manyMarines who lacked even a tent.

Through 1965 the number of cases assigned to eachcounsel — the caseload — remained low. Recollectionsof the actual number of cases assigned varied from twoor three cases to nine or ten.15 In any event, the num-ber was fluid and not very high. In September the sur-rounding city of Da Nang was put off limits to allMarines, except for purposes of official duty or busi-ness, two broad exceptions.16 The commission of minoroffenses and crimes was reduced by the off-limits order.Unlike later arriving units, the first Marines that land-ed in Da Nang were integral, cohesive units. That, too,contributed to the initially low offense rate. SecondLieutenantJohn E. Gillmor,Jr., recalled: "During thatperiod we sent half the legal department to ChinaBeach to go swimming . . . . Boredom was our big-gest real enemy."7

Of the three levels of court-martial under the 1951Manual for Courts-Martial, which was still in effect,

Maj Fred Grabowski, Deputy Staff Legal Officer, III MAF/3d Marine Division, works ina section of the messhall before legal personnel were ass:gned their own work space.

Photo courtesy of Col Daniel F. McConnell, USMC (Ret.)

the most serious offenses were tried at a general court-martial, which required lawyer counsel. Theintermediate-level special court-martial was employedfor the majority of cases. Lawyers were not a require-ment in special courts, although they were sometimesassigned. Summary courts-martial were one-officerhearings which disposed of minor offenses, as the termsuggests, in a summary, greatly simplified proceed-ing. The maximum permissible punishment a sum-mary court-martial could impose was much less thanthat of a special or general court-martial. The officerhearing the summary court-martial case did not haveto be a lawyer, and rarely was. The accused could re-fuse trial by a summary court, in which case the officerwith authority to convene the court-martial could, andusually did, upgrade the case to a special court-martial,which could not be refused.18

In many cases the non-lawyer officer assigned toconduct a summary court-martial would advise the ac-cused, before trial, to confer with a lawyer. That couldresult in the lawyer advising the Marine to refuse asummary and request a special court, if a lawyer wouldthen be assigned to represent him. Sometimes suchan agreement could be struck with a conveningauthority. In that way the accused would have attor-ney representation, although he also risked greater

punishment if found guilty at a special court-martial.However, most often, Marine Corps lawyers participat-ed in special courts-martial only when the offense ap-peared to warrant a bad conduct discharge.'°

Lieutenant Colonel Daniel F. McConnell, later adeputy SlO in Vietnam, noted that he regularly madethe more capable junior lawyers available to act as sum-mary courts-martial, as well. "The convening authoritywas generally pleased," McConnell recalled. "The ac-cused felt more secure, and justice was served."20 Butwithin a few years, Marine Corps lawyers would be toooccupied with more serious cases to allow such aluxury.

General and special courts-martial were decided bymembers. The 1951 Manual for Courts-Martial did notprovide for a case to be heard solely by a judge. In-deed, there were no judges, as such. A law officer,similar to a judge, presided at general courts-martial.Occasionally, a law officer was made available to actas the senior member of a special court, which hadno provision for a law officer and was otherwise direct-ed by a nonlawyer officer.21

Most of those cases that reached Marine Corps law-yers in Da Nang were serious. For example, a highnumber of negligent homicide cases were tried?2 Manyof those were referred to as "quick draw" cases in whith


Photo courtesy of Col Charles B. Sevier, USMC (Ret.)

In September1965, LtCol Charles B. Sevier III MAF/3dMarine Division StaffLegal Qfficerstands before his recently erected "office" in the rear of the III MAP compound


Marines mishandled their weapons, often .45 caliberpistols, with tragic consequences.

A typical caseload was that of First LieutenantRobert A. "Tony" Godwin. After spending five anda half months on Okinawa, he arrived in Da Nangin August 1965. In the seven and a half months heremained, he was defense counsel in ten general andfive special courts-martial. The general courts-martialincluded two homicides, a vehicular homicide, tworapes, and two robberies. Among the special courts-martial was a "quick draw" assault with a deadlyweapon, two assaults of officers, and sleeping on post.Seven of the 15 courts-martial were pleas of guilty,several with pretrial agreements which limited punish-ment to agreed upon limits. Of the eight cases thatwent to trial as not-guilty pleas, Lieutenant Godwingained acquittals in three, conviction of a lesser offense

lstLt Robert A. Godwin, starched andpressed, posesat Camp Courtney, Okinawa, shortly before his depar-ture for Da Nang and duty as a defense counsel.

Photo courtesy of Col Robert A. Godwin, USMCR

in one, and mixed findings (guilty of some offenses,not guilty of others) in three. Only one resulted ina straight guilty finding.23

Homicide, rape, robbery—serious offenses were be-ing tried in Vietnam, even at that early point. At thesame time, 15 cases in seven and a half months is avery light caseload, even with the other duties all coun-sels carried out.

Those other duties included legal assistance coun-selling (always of significant volume overseas); boardsof investigation which occasionally involved lawyer par-ticipation; administrative discharge boards; occasion-al informal, one-officer ("JAG Manual") investigations;and the usual legal advice to the command.*

From a Lawyer's Case File:One Homicide, Two Victims

Private First Class Kenneth Wheeler was 18 yearsold when he killed his best friend.24 Before comingto Vietnam he and the victim, Private First ClassRichard E. "Rick" Cronk, had been close, going onliberty together and living in the same squadbay.Wheeler had dated Cronk's sister. On 23 August 1965,with Company E, 2d Battalion, 9th Marines, they hadbeen in combat, and later, were relaxing with theirunit. As his friend, Cronk, floated on an air mattressin a shallow stream, Wheeler, thinking it unloaded,pointed his M-14 rifle at Cronk in jest. Cronk diedalmost instantly from a bullet that pierced his throat.Wheeler arrived at the battalion aid station in shock,unaware of his surroundings or those who carried himthere. He could neither walk nor speak.

Forty-seven days later, before a general court-martial,he pleaded guilty to culpably negligent homicide. Heoffered neither defense nor excuse and made no pleafor mercy. His defense counsel, First Lieutenant TonyGodwin, offered a letter in mitigation from themother of the victim. She wrote:

I was stunned and heartsick to hear that my son's friendK. Wheeler is being tried for his death. . . but we did knowin our hearts it was a tragic accident . . . . All of these menwere tired, dirty and probably tensed up from four days outon duty.

Rick leaves a family who loved him dearly and he was somuch a part of all our lives, but to know that Wheeler

must pay for his death won't make it any less hard tobear. In fact, we feel it will serve no purpose for this boy

*Boards of investigation, relating to non-judicial punishment,were provided for in the 1951 Manual for Courts-Martial. They ex-pired with the implementation of the 1969 Manual for Courts-Martial.

to be punished any more than he is already. He is in hisown private hell which is enough!

I hope, on our behalf, you can enter a plea for completeacquittal . . . . He needs his friends now.

The court-martial took only two hours and thirty-five minutes from opening to sentencing: confinementat hard labor for 12 months, forfeiture of all pay andallowances for a year, and reduction to private. Neithera dishonorable discharge nor a bad conduct dischargewas a part of the sentence.

In his review of the trial the SLO, Colonel Sevier,wrote: "Under the circumstances of this case, confine-ment would be of no benefit to the United States orto the accused." The court-martial convening authority,General Walt, agreed and reduced the sentence to for-feitures of $60 a month for six months and reductionto private.

Within two weeks of the court-martial PFC Wheelerrequired psychiatric care, and on 18 November, suffer-ing from severe depression, he was admitted to thepsychiatric ward of the U.S. Naval Hospital in Yokosu-ka, Japan. After six months' hospitalization he was ad-ministratively discharged from the Marine Corps?5

Trying Cases

The lawyers of the combined 3d Marine Division/IllMAF legal office prepared to split into two separateoffices in early 1966. Meanwhile, that part of the air-base's former French Foreign Legionnaires' barracksthat now housed Marine Corps officers was known asthe bachelor officer quarters, orBOQ. Each room wasassigned a Vietnamese housemaid, usually referred toas a "house mouse," who washed the occupants'clothes, kept the room reasonably clean, and shinedboots to a high luster. The cost for these services was500 piasters, or about $4.50, per month. The cost ofrations was automatically deducted from each officer'spay. An officer's club which served 15-cent beer and20-cent mixed drinks and employed Vietnamesewaitresses, was available?6

The tent working spaces of the lawyers were not ona par with those of the staff in the permanent Frenchbuildings, but they were satisfactory. The four legaltents allowed for more space than the indoor staff en-joyed and a greater degree of privacy, which was neces-sary for interviewing witnesses and those accused.


Photo courtesy of RAdm Hugh D. Campbell, JAGC, USN (Ret.)

Drinks were inexpensive but ambience was in short supply, at the Chu Lai officers' club.

Mud, rain, and dust were endured by everyone. Themonsoon rains penetrated tents and rain gear. At timesblowing almost parallel to the ground, the rain leftpuddles on cots, desks, and plywood floors. Mildewquickly formed on virtually any stationary object. Insummer's heat the dust was ankle-deep in places, bil-lowing in the air with each footfall. Passing vehiclesleft dust clouds hanging in their wake which deposit-ed gritty coatings on exposed skin, papers, and court-recording equipment.

In Da Nang that important legal tool, the lawlibrary, was at best limited. The "standard issue" lawlibrary was not yet implemented. In 1965 and 1966advance sheets did not reach Vietnam.* The Da Nang"law library" contained only bound volumes of pastmilitary appellate opinions, the Martindale-Hubbell

*Advance sheets are copies of appellate court opinions, mailedto legal commands and offices as they are announced. Petiodicallythe accumulated advance sheets appear as bound volumes. Theyare important to lawyers because they are the latest word on theappellate court's interpretation and application of the law.

Law Directory (a digest of state laws and a guide toattorneys in the U.S.), and the 1951 Man ual for Courts-Martial. Volumes of the United States Supreme CourtReports, other Federal reports, form books, model juryinstructions, legal treatises, and similar references werenot among the combat materiel shipped to Vietnam.27In lieu of a law library the counsels relied on theirnotes from Naval Justice School and cited authoritywith which they hoped the law officer was familiar.Lieutenant (jg)John F. Erickson, a Navy law specialist,was once reduced to citing as authority a case he hadread about in a recent edition of the Stars and Stripesnewspaper, a lawyer's field expedient.28

Numerous Marines school-trained in the Viet-namese language were assigned to Vietnam as trans-lators, usually to interrogator-translator teams andintelligence units. None served with the legal officesthat often dealt with Vietnamese witnesses, victims,and claimants. For courtroom use the Marines hiredtranslators from the local Vietnamese population,some of whom spoke excellent French and English.


Photo courtesy of LtCol John L. Zorack, USMC (Ret.)

Vietnamese interpreters were not assigned to legal sections. LtCol John L. Zorack, TaskForce X-Ray's Staff Legal Officer in 1967, sits with an interpreter he hired 13-year-oldBinh Nguyen. With LtCol Zorack 's assistance, Binh later emigrated to the United States.

26 MARINES AND MILITARY LAW IN WETNAM

At Chu Lai's Thsk Force X-Ray Lieutenant Colonel JohnL. Zorack's first interpreter was a 13-year-old boy. Ofcourse, the Vietnamese were not trained as courtroomtranslators and their skills varied widely. In general,the standard was not high. "The problems in tryinga case with an interpreter:' Lieutenant Hugh Camp-bell recalled, "were just impossible . . . . [Theyj madeit almost impossible to cross-examine witnesses."29 Se-cond Lieutenant John E. Gillmor, a 3d Marine Divi-sion defense counsel, added:

Da Nang was on a border area for local dialects, and itwas difficult to get a translator who could communicate withthe [witnesses]. In addition, there was a cultural gap whichmade me suspect that the witnesses were trying to tell uswhat they thought we wanted to hear. .. . I was very much

afraid that if we had a contested trial, my case would col-lapse over the translation issue3o

Although their function was explained and althoughthe interpreter acknowledged understanding, coun-sel often realized in the midst of examination that thewitness and the interpreter were having their ownparallel conversation. The responses to questions oftenwere suspected to be an amalgam of the witness' andtranslator's view of what constituted an appropriateanswer. Sometimes a lengthy, obviously complexresponse by the witness would be translated by the in-terpreter as, "yes." But no case was reversed at the ap-pellate level for inadequacy of translation, perhaps inrecognition of the fact that all parties labored underthe same burden.

As challenging as accurate translations were, locat-ing and interviewing of witnesses, both military andVietnamese, was equally difficult. The problems inlocating a Marine witness, for example, were several.If he was an infantryman, he was probably in the field.But where was his company— if his company could bedetermined? Was the Marine unavailable because hewas on patrol? Assigned to an outpost? Sent out ofcountry on R & R? Had he been killed or woundedsince the offense was reported? Had he already rotat-ed back to the U.S. because his 13-month tour of dutyin Vietnam was completed? Had he been sent homeon emergency leave? Was he in an unauthorized ab-sence status?

Although the same problems arose in non-combatareas, they were heightened in Vietnam by tactical con-siderations and inadequate communications and trans-portation. For lawyers accustomed to instant telephonicaccess, Vietnam was a new experience. Telephoninganyplace outside the vicinity reached by the unit'sswitchboard was a significant chore. Static, poor and

broken connections, and interruption for higher pri-ority calls were the rule. Captain William B. Draper,Jr., recalled his attempts to go from one codenamedswitchboard to another via a military telephone, calleda "double-E-eight," for its military designation, EE-8.As he recalled:

It is doubtful if everyone doesn't have several hair raisingtales of. . . frustration. Who can forget hollering "Isher-wood, give me Grasshopper!" into a seemingly dead double-E-eight for hours on end, only to finally get the connectionand have it pre-empted immediately. Occasionally commu-nication foul-ups resulted in something more than janglednerves: . . . walls with your fist imprint in them31

As difficult as it was to locate a Marine, finding aVietnamese was even more challenging. Phone booksand subpoenas were not an option. To an American,Vietnamese names were similar and confusing. Theresimply was no practical way to summon a Vietnameseto a court-martial. All one could do, if the statementof a Vietnamese witness or victim was required, wasto go to them.

Twenty-seven Navy lawyers served in Marine Corps le-gal offices in Vietnam during the war. The first wasLt (later RAdm) Hugh D. Campbell, shown at DaNang in 1965. He was III MAF/3d Marine Divisionchief defense counsel. In November 1986 he assumedthe duties of the Judge Advocate General of the Navyand Commander Naval Legal Service CommandPhoto courtesy of RAdm Hugh D. Campbell, JAGC, USN (Ret.)


Colonel Sevier recalled when he first became awarethat his lawyers were taking the initiative in the wit-ness location process:

I walked out of the legal tent and I saw this [military]truck, and it had about four of my lawyers and two of myNCOs on it, and they were all holding goddamn rifles!

I turned to this Navy lieutenant [Campbell]: "Whatin the hell are you people doing?" "We're going out therein bandit country, and pick up the Vietnamese witnesses."Well, I looked, and then I said [to myself], I'm going to letthem go and they'll hang me. But I said, "Okay." A Navylieutenant! A helluva nice kid 32

Lieutenant Campbell, who became the Judge Advo-cate General of the Navy 21 years later, was on oneof the earliest forays to find witnesses in contested ter-ritory. In the next six years countless similar missionsto locate essential trial participants were carried out.It was a novel but necessary trial preparation methodin Vietnam. As Colonel Sevier noted:

It worked because of the people we had. . . . Lieutenantswho'd gone through OCS and the Basic School. They hadsome background in the infantry and could get around. Theywere capable of leaving the C.P. and going to a regiment,or a battalion and doing their investigation, running a pre-trial [investigation], going out in the bush with a patrol.They'd interview witnesses through an interpreter. They hadthat capability

When not locating witnesses or preparing for court,the lawyers often looked for other constructive activi-ty to occupy free time. Civic action, for example, wasnot only the concern of the staff officers assigned tothat section. The 3d Marine Division's command chro-nology for the period noted: "At this stage . . . Divi-sion Civic Action units are stressing maximum contactwith the local Vietnamese population."34 Although at-torneys had no formal connection with civic action,First Lieutenant Tony Godwin and other lawyers fromthe 3d Division/Ill MAF staff taught English in a lo-cal Vietnamese high school, using Vietnamese-Englishtextbooks. The Marine Corps teachers concealed theirsidearms under their utility uniform shirts.3 Through-out the war Marine Corps lawyers took an active rolein the civic action program.

III MAP: Headquarters Without Lawyers

After an enemy attack on the Da Nang Airbase inJuly 1965 General Walt, concerned with security, or-dered the 3d Marine Division command post movedfrom the airbase to a location three miles to the weston the northern slope of Hill 327.

From 11 to 15 November in heavy monsoon rainsthe 3d Division Headquarters, including the Staff Le-

gal Office, relocated to Hill 3276 The 1st Marine Air-craft Wing, including its legal personnel, and III MAFheadquarters, remained at the airbase.

Colonel Vernon A. "Vap" Peltzer was the first StaffLegal Officer assigned to III MAF Headquarters.(Although Colonel Sevier had been overseeing III MAFHeadquarters' legal affairs, he was actually assignedto the 3d Marine Division.) As a matter of fact,Colonel Peltzer was the headquarters's only legalofficer at the time. Several other attorneys were on theMAF staff, but they were acting in other capacities.

In retrospect, the assignment of a colonel as SLOof III MAF was notable. Those making assignmentsat Headquarters Marine Corps could not have antici-pated that, when the headquarters of III MAF and the3d Marine Division became geographically separated,III MAF would not be designated a court-martial con-vening authority. The commanding general of the 3dDivision had always had such authority. The commandhaving only recently been formed in Vietnam, IIIMAF's commanding general did not have suchauthority. Without this authority (a simple adminis-trative act by the Secretary of the Navy confers it) theMAF commanding general could not order a court-martial convened. Lacking that power, and having rela-tively few Marines assigned to it, the MAF had littleneed for lawyers, so the lawyers all moved to Hill 327with the command that conducted trials, the 3d Di-vision. It was not surprising that the SI.O for the 1stMarine Aircraft Wing wrote the legal officer for FleetMarine Force, Pacific that "although I do not knowif III MAF has requested a lawyer, I earnestly do notfeel that they need one. Any legal work that they havecan be accomplished by the lawyers presently on handas an additional duty." The 3d Marine Division SLO,Colonel Sevier, was more laconic when he said aboutthe III MAF legal office, "there wasn't much to do,down there."38

If Colonel Peltzer found himself without a greatdeal of work, the fault was not his. He shared an officewith the III MAF surgeon, had no law library, did nolegal assistance, and had no subordinates. What werethe responsibilities of the III MAF SLO? "Just to keepGeneral Walt informed as to what was going on,"Colonel Peltzer recalled with frustration. He alsoreviewed cases tried at other commands, convened anumber of investigations, and acted as counsel for thegrowing Da Nang port facility.

The other attorneys on the MAP staff were assignednonlegal duties. Colonel Olin W. Jones, SLO of the3d Marine Division, had served with General Walt in


Department of Defense Photo (USMC) A-413090

Marine Corps lawyers served in numerous roles in Viet-nam. In 1966 Maj Charles]. Keever became the IIIMAF Assistant Chief of Staff G-5 and Special Assis-tant to the Commanding General (Civic Action).

Korea. Shortly after assuming command inJune 1965,General Walt sent to Okinawa for Colonel Jones, whothen acted as General Walt's Deputy Chief of Stafffor Administration, Logistics and Area CoordinationMatters. That novel billet continued for two monthsand made Colonel Jones available for legal consulta-tion along with the MAF's assigned SLO.4°

Major Charles J. "Chuck" Keever, recently of theStaff Legal Office on Okinawa, was the Assistant Chiefof Staff, G- 5 and Special Assistant to the Command-ing General (Civic Action). General Walt believed thatcivic action was more than benevolence. He thoughtthat it could be used as a weapon to sever the populacefrom Viet Cong control. Major Keever, without priortraining in civic action, was directed to draft a policythat would give overall direction to the civic action pro-gram and focus the good-will efforts of individual Ma-rines. He wrote the first MAF order for civic actionand, upon its acceptance, saw to its implementation.

He later received the Legion of Merit for his work'Captain William T. Warren was assigned to the III

MAE G-4 office. Like Major Keever, he had been alawyer serving on Okinawa and had asked to be sentto Vietnam, even if in a non-legal capacity. In Junehe found himself the III MAE Real Estate Officer,another billet not found in the table of organizationbut closely related to the tactical security of the DaNang Airbase. After the July 1965 Viet Cong raid onthe airbase destroyed a number of Air Eorce planes,Captain Warren was tasked with clearing a 300-yardwide security zone around the entire perimeter of theairbase. That effort eventually involved the relocationof 826 Vietnamese houses, approximately 5,000 Viet-namese, and (a delicate matter) 6,000 graves. Work-ing with Le Chi Cuong, the mayor of Da Nang, therelocation effort took three and a half months to dis-mantle and move houses, shrines, shops, and templesto new locations. Work crews, with the approval of theowners, simply demolished some structures, and IIIMAF compensated the Vietnamese. Each familyreceived a 30,000 piaster (about $270) relocation al-lowance in addition to compensation, if their housewas demolished. Captain Warren was surprised to findthat the Vietnamese, although concerned, did not ap-pear to be at all hosti1e2 His work was one of the fewinstances in 1965 when a lawyer had opportunity todirectly support the commander's tactical mission.

Another lawyer on the staff of III MAF was MajorBenjamin B. Ferrell, the Assistant G-1/Civil AffairsOfficer. The citation for his Bronze Star Medal sum-marized his duties and performance:

[His] area of responsibility covered approximately 7,000square miles . . . . During the day he traveled throughoutthe area meeting the Vietnamese leaders of towns and ham-lets, discussing their problems and ascertaining their needs.At night Major Ferrell prepared the detailed orders andreports required to implement a meaningful civil affairs pro-gram and to procure needed. . . supplies and equipment3

The III MAF lawyers remained at the Da Nang Air-base while the 3d Marine Division Headquartersmoved to Hill 327 into newly erected strongback tents.

1st Marine Aircraft W/ing: Touching Down

Until 31 August the elements of the 1st Marine Air-craft Wing (1st MAW) in Vietnam were designated 1stMAW (Advance). Parts of the MAW headquarters re-mained at Iwakuni, Japan, until early in 1966, whilemost of the wing deployed to Da Nang in incrementsthroughout 1965

The MAW's first SLO, Major Paul A. A. St.Amour,

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cover: maj w/inn m. thurman presides at an …...cover: maj w/inn m. thurman presides at an...

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