FPCD-77-47 Eliminate Administrative Discharges in Lieu of ...

DOCUOENT RBCMEf

05737 - [B1226163]

Eliminate Administrative Discharges in- Lieu of Couar-leatial:Guidance for Plea Agreements in Military Courts Is Needed.FPCD-77-47; B-186183. April 28, 1978. 34 p;. + 5 appendices (19pp.) .

Report to the btngress; by Elmer B. Steats, Cosptroller .General.

Issue Area: Federal Personnel Management and Compensatiot:military Justice (317).

Contact: Federal Personnel aud CoepGnbation Div.Budget Function: lational Defense: Cefense-related Activities

(054).Organization Concerned: Department of Defense; Department of the

Navy; Department of the Arm); Departmoant of the Air Force.Conqressional Relevance: House Committee on Armed Services;

Senate Committee on Armed Services; rongres. A'ithority: 10 U.S.C. 801. United States v. Cummings, 38 C.H.R.

174 (1968). United States v. Avery, 50 C.A.r. 827 (1975).United States v. Elmore, 51 C.M.i. 254 (1976). United Statesv. Green, 52 C.N.R. 10 (1976). Urnited States v. Banner, 22C.I.R. 510 (1956). United Statas v. Haaness, 4# C.B.B. E46(1974). Uni'ed States v. Schseltz, 50 C.H.B. 83.

Plea bargaining in the military involves the exchbangeof a guilty plea for reduced charges cr a specific miniumvsentence. It also includes exchanging an adrission of guilt toan offense punishable by a bad conduct or dishonorable dischargeimposed by a military court for the assurance that the accusedwill Lot be brought to trial but instead will beadministratively discharged. Tha Uniform Code cf militaryJustice does not cover plea agreements or discharges in lieu ofcourt-martial, and they are not addressed in the Manual forCourts-Martial in which the President establishes proceduralrules. Findings/Conclusioas: Disparities in service policiesand requlations governing the results cf plea bargaining meanthat people charged with the same crimes often are treateddifferently. The option of a discharge in lieu of court-martialalso allows similar cases to be disposed of eitheradministratively or under the judicial process which furthercontributes to the nonuniform treatment of individuals. Theservices often use the discharge in lieu of court-martial as anexpedient way to get rid of people. Such discharges have risenfrom less than 500 in 1967 to alaost 27,000 in fiscal year 1976.About 90% result in the most severe tFye of administrativedischarge -- a discharge under other than honorable conditions.Altho(uqh not desiqnated punitive, this discharge has the sameeffect in terms of restricting el. 4gibility for veteran henafitsand limiting civilian employment opportunities. military colurtsappear more hesitant to irpose punitilv discharges than aredischarqe authorities to approve requests for discharges whichare potentially as harmful. Lecoamendationa: Because discharges

in liou of court-aartial limit the effectiveness of the silitaryservice and allow symptoms of a pr'oble: to ke treated ratherthan its root cause, the Secretary of -Defense should revise thedirective on administrative di3charesA to Elirinate dischargesin lieu of court-martial and di'ect the services to dispose ofcriminal charges in a manner consistent with the lnitorn code ofMilitary Justice and the Manual fcr Ccurta-lartial. ThePresident, in the Hanual for Courts-rar£iasl, should providepolicy guidance, procedures, rules, stsadards, and fcrsat cn theuse of plea agreements in i'itary couzrt. (BBS)

BY THE COMPTROLLER GENERAL

Report To The CongressOF THE UNITED STATES

Eliminate Administrative DischargesIn Lieu Of Court-Martial: Guidance ForPlea Agreements In Military CourtsIs NeededPlea bargaining in the military involves the ex-change of an admission of guilt for reducedcharges, e specific maximum sentence, or adischarge in lieu of court-martial. The mostfrequent result--a discharge in lieu of court-martial--is not subject to judicial safeguards.

Contrary to congressional intent, criminal of-fenses are often not dealt with under the Uni-form Code of Military Justice and disparitiesexist in the administration of military justice.Tne discharge in lieu of court-martial.whichallows for administrative handling of offenses~utside of military courts, is an importantcause of this.

GAO recommends that:

--The President, under authority delegatedto him by law, provide guidance on theuse of plea agreements.

-- The Secretary of Defense direct theservices to stop using the discharge in lieuof court-martial and to deal with allegedcriminal wrGngdoing in a manner consistentwith the Uniform Code of Military Justice.

OTq SI27

FPCO-7747tQCOLJ$T' APRIL 28, 1978

COMPTPOLLER GENERAL OF THE UNITED STATE$WASHINGTON. D.C. ZOU

B-186183

To the President of the Senate and theSpeaker of the House of Representatives

This repcrt discusses rlea bargaining in the military.One result of plea bargaining--the discharge in lieu of cuurt-martial--is used outside the protections of military courts.We are recommending that the Secretary of Defense direct theservices to stop using this type of discharge and that thePresident revise the Manual for Courts-Martial to Provideguidance for plea agreements in military courts.

Our authority for making this review is the Budget andAccounting Act, 1921 (31 U.S.C. '3), and the Accounting andAuditing Act of 1950 (31 U.S.C. 67).

We did not obtain formal agency comments. However, thereport was discussed with representatives of the Office ofthe Secretary of Defense and each service, and their commentswere considered.

We are sending copies of this report to the Presidentof the United States; the Director, Office of Management andBudget; the Attoraey General of the United States; and theSecretaries of Defense, Transportation, the Army, the Navy,and the Air Force; the Chairman, Civil Service Commission;and other interested parties.

omptroller Generalof the United States

COMPTROLLER GENERAL'S ELIMINATE ADMINISTRATTVE DISCHARGESREPORT TO THE CONGRESS IN LIEU OF COURT-MARTIAL:

GUIDANCE FOR PLEA ACREEMENTSIN MTL[rARY COURTS IS NEEDFD

D I G F S T

Plea bargaining in the military invulves theexchange of a guilty plea for reduced charqesor A specific maximum sent nce. As used inthis report. it also includes exchanging anadmission of guil- to an ,ffense punishableby a bad conduct oi dishonorable disc ha-qeimposed by a militAry court for the a.surancethat the accused will not be brought to trialbut instead wi'.l be administtative'y dis-charged. One result of this bargaining, anagreement to redLued cnarges or a specificmaximum sentence, is subject to review andapproval by a military judge. But bargainingwhich results in discharges in lieu of court-martial is done much more frequently and is notsubject to judicial safeguards.

The Uniform Code of Military Justice--the solestatutory authority establishing the means andprocesses to uF in dealing with militarypeople accused _f crimes (see p. 3)--does notcover plea agreements or discharges in lieu ofcourt-martial; nor are they addressed in theManual for Courts-Martial, in which thePresident establishes procedural rules. (Seepp. 4 and 17.)

Disparities in service policies and regula-tions governing the results of ple:a bargainingmean that people charged with the same crimesoften do not have the same rights which in-evitably leads to differing treatment. (Seep. 31.) Also, the option of a discharge inlieu of court-martial allows similar cases tobe disposed of either administratively or un-der the judicial process. This further con-tributes to the nonuniform treatment of in-dividuals and is contrary to congressionalintent. (See p. 26.)

The Congress intended that all criminal of-fenses be dealt with under the provisions ofthe Uniform Code of Military Justice. (See

Tcvr Sgt. Upon removal, the reportcover date should be noted hereon.

i FPCD-77-47

pp. 4, 13, 14, and 15.) This is necessary to safe-guard the rights of the accused and to pro'Lectthe interests of society as a whole.

The services use the discharge in lieu of court-martial as an expedient way to get rid of prob-lem people. But the legislative history ofthe Uniform Code of Military Justice does notsupport that the Congress intended this to bedone in instances involving criminal offenses.In GAO's opinion, the administrative dischargesystem should be used only to discharge fromthe service individuals who clearly demonstratethey are unqualified for retention, not to dis-pose of alleged criminal offenses.

Accordingly, GAO recommends that the President,in the Manual for Courts-Martial, providepolicy guidance, procedures, rules, standards,and format on the use of plea agreements inmilitary courts. Any restriction on the useof plea agreements should be specified.

GAO further recommends that the Secretary ofDefense

--revise the directive on administrative dis-charges to eliminate discharges in lieu ofcourt-martial and

-- direct the services to dispose of criminalcharges in a manner consistent with theUniform Code of Military Justice and the Man-ual for Courts-Martial. (See p. 29.)

DISCHARGES IN LIEU OFCOURT-MARTIAL

Discharges in lieu of court-martial have in-creased dramatically from less than 500 in1967 to almost 27,000 in fiscal year 1976.About 90 percent result in the most severetype of administrative discharge--a dis-charge under other than honorable conditions.Although not designated punitive, this dis-charge can have the same effect in terms ofrestricting eligibility for veteran benefitsand limiting civilian employment opportuni-ties. (See pp. 17 and 18.)

ii

A discharge in lieu of court-martial can onlybe imposed at the request of the accused andupon approval by the discharge authority. Inrequesting this type of discharge, the accusedwaives his right to protections guaranteed un-der the Uniform Code of Military Justice, whichinclude the Light to trial and appellate re-view. Before a discharge Lcn be imposed by amilitary court, charges must be filed andlegally admissible evidence must be developedto judicially establish the person as guiltybeyond a reasonable doubt. Punitive discharges(bad conduct anc dishonorable) can only be im-posed by special and general military courtsand do not becone effective until reviewedand approved by a court of military review.(See pp. 19 and 20.)

The Congrcss has warned against the use of theadministrative discharge system to impose pun-ishment. If an administrative discharge isnot punishment, then the discharge in lieu ofcourt-martial uues not allow for any form ofpunitive action. GAO believes this does notserve the interests of society. It is alsoanfair to those who are criminally chargedwith similar offenses but are forced to facecourt-martial. (See p. 27)

Military courts appear far mcre hesitant toimpose punitive discharges than are dischargeauthorities to approve requests for dis-charges, which are potentially as harmful.GAO's test of 1,094 cases showed that a puni-tive discharge was included in the sentencesimposed in 13 percent of the cases tried bycourt-martial. In contrast, 92 percent ofthose opting to be discharged in lieu ofcourt-martial received a discharge underother than honorable conditions. (Seepp. 24, 25, and 26.)

Many cases, in which a discharge in lieu ofcourt-martial was approved, may never havegone to trial or may have been tried in acourt which did not have the authority toimpose a punitive discharge. (See p. 26))This is because service regulations do notrequire that

iii

-- a decision be made to refer the case to acourt having the authority to impose a puni-tive discharge before a di'scharge can be re-guested or

--a strong case be developed against the ac-cused before a discharge in lieu of court-martial can be approved. 'See p. 27.)

GAO believes that discharges in lieu of court-martial:

-- Limit the effectiveness of military courts.These courts must enforce the law and alsoprotect the rights of individual servicemembers. They cannot accomplish these ob-jectives if a major portion of criminal of-fenses are dealt with outside the judicialprocess.

--Allow symptoms of a problem to be treatedrather than its root cause. Thib possf-bility for misuse is of concern because ofthe increasing rate at which this type ofdischarge is being used..

Most offenses leading to discharges in lieuof court-martial are peculiar to the mili-tary. The majority of those affected by thestigma of a bad discharge are young people--most below age 20. GAO questions whethermany of the people electing a discharge inlieu of court-martial understand its poten-tial long-term consequences. (See pp. 28and 29.)

PLEA AGREEMENTS INMTLITARY COURTS

The Army, Navy, and Marine Corps encouragethe use of plea agreements in military courtsbased on the belief that they are advanta-geous to botn the Government and the accused.

The Air Force dicagrees, however, and permitstheir use only in exceptional circumstances.In doing so the Air Force Fas created animportant policy difference among the services.(See pp. 31 and 32.)

iv

Military appellate courts have approved theuse of plea agreements in military courtsbut have expressed the need for caution.Problems found by these courts support theneed for the President to establish Policyguidance for the use of plea agreements.

AGENCY COMMENTS

GAO did not obtain formal agency comments.However, the report was discussed with De-partment of Defense and service judge ad-vocate general representatives. They gen-erally agreed that uniform guidance cover-ing the use of agreements in militarycourts would be useful. The reaction wasmixed, however, regarding GAO's proposalto discontinue the administrative separa-tion of individuals to avoid trial bycourt-martial.. Some supported its dis-continuance because it compromises theprocess by which the Congress intendedcriminal offenses should be dealt with.Others voiced concern that its eliminationwould increase the workload of militarycourts.

IAALjSh. Upon removal, the report3ovir aas should be noted hereon.

v

Contents

Paqe

DIGEST i

CHAPTER

1 INTRODUCTION 1Role of the commander 1Relationship of the discharge

system to criminal wrongdoing 2Uniform administration of justice

is the objective of the code 3Plea bargaining is done withoutdefinitive guidance 5

Results of plea bargaining 5

2 CARE IS NEEDED IN PLEA BARC...I.T1NG 7The plea bargaining process 7Agreements used in military courts 11Discharges in lieu of court-martial 13Plea agreements in Federal courts 15

3 ADMINISTRATIVE DISCHARGES IN LIEU OFCUURT-MARTTAL SHOULD BE ELIMINATED 17

Frequencyv 17Adverse effects of bad discharges 18Waiver of rights under the code 19Differences among services' requ-

latiorns 20Comparison of severity of discharges

imposed in lieu of court-martialwith discharges imposed by court-martial 24

Conclusions 26Recommendations 29

4 PLEA AGREEMENTS IN MILITARY COURTS 30Frequency 30Differences in service policyguidance 30

Conclusions 32Recommendatiors 33

5 SCOPE 34

APPENDIX Pet. a

I Concerns of appellate courts over theuse of plea agreements 35

II Items included in some, but not all,military service guidelines for theuse of plea agreements 42

III Differences in what service guidancesays about plea agreements 45

IV Comparison of clauses contained inAir Force, Army, and Navy suggestedformats for plea agreements 48

V Principal officials responsible foradministering activities discussedin this report 52

ABBREVIATIONS

DOD Department of Defense

GAO General Accouiiting Office

CHAPTER 1

INTRODUCTION

Plea bargaining in the military involves the exchangeof a guilty plea for reduced charges or a specific maximumsentence. As used in this report, it also includes ex-changing an admission of guilt to an offense punishable bya bad conduct or dishonorable discharge imposed by a mil-itary court 1/ for the assurance that the accused will notbe brought to trial but instead will be administrativelydischarged. A plea (also known as pretrial agreement) re-sults from bargaining for reduced charges or a specific maxi-mum sentence and is subject to review and approval by amilitary judge. But bargaining for a discharge in lieu ofcourt-martial is done much more frequently and the result isnot subject to judicial safeguards.

To understand how plea bargaining works iL is necessaryto understand the role of the commander in the military crim-inal law system, and how the discharge system is used todeal with criminal offenses.

ROLE OF THE COMMANDER

Commanders have important responsibilities and functionsadministering the military criminal law system. Each com-mander is responsible for both enforcing the law and protect-ing the rights of the accused individual. He has the duty ofpromptly investigating the circumstances of an alleged crime.From this preliminary investigation he will determine whetheradministrative action, nonjudicial punishment, or court-martial action is appropriate. Such factors as the serious-ness of the offense, the past record of the individual, andthe state of morale and discipline in his unit will determinewhether he refers the matter up the chain of command or dealswith it himself. If the unit commander forwards the case tohis superior, that officer will apply the same criteria in de-ciding whether to take appropriate action himself or to for-ward the casp 'o a higher authority.

i/In this report, the terms court-martial and military courtare used interchangeably. Also, effective January 1, 1977,an undesirable discharge was redesignated a discharge"under other than honorable conditions." Because of thischange, it has not always been possiole to refer to thistype of discharge by its current designation.

1

The commanding officer who approves the trial of theaccused is referred to as the convening authority. Thecode requires that after trial he review the record and ap-prove a finding of guilty and the sentence imposed. Hemay exercise clemency in the form of disapproval, mitigation,commutation, or suspension of the sentence, or he may ordera rehearing. This authority enables him to honor the termsof any plea agreement he enters into.

RELATIONSHIP OF THE DISCHARGESYSTEM TO CRIMINAL WRONGDOING

The military often deals with criminal offenses throughthe discharge system. In desending order of desirability,discharges are characterized as (1) honorable, (2) general,(3) under other than honorable conditions, (4) bad conduct,and !5) dishonorable. The first three characterizationsare handled under an administrative process; the latter twocan be imposed only by a military court.

Under Department of Defense (DOD) Directive 1332.14, theservices have the right and duty to administratively separatemembers who clearly demonstrate they are unqualified for re-tention. At the same time, such members have rights whichare to be protected. For example, this directive states thatno individual is to receive a discharge under other than hon-orable conditions--the most severe type of administrativedischarge--unless he is given the right to present his casewith the advice and assistance of counsel before an adminis-trative discharge board composed of at least three officers.Any such discharge imposed must be supported by an approvedboard finding and recommendation. An individual can waivehis right to board action; he must waive this right in re-questing a discharge in lieu of court-martial.

Service regulations call for an individual requesting adischarge in lieu of court-martial to receive a dischargeunder other than honorable conditions unless a less seversdischarge can be justified. A discharge under other thanhonorable conditions can also be imposed for reason of mis-conduct. To be separated for misconduct, the board mustdetermine from the member's military record in the currentenlistment period that he is unqualified for further mi-litary service based on patterns of conduct and certainacts or conditions. Acts or conditions which would warranta discharge for reason of misconduct include convictionsin both civil and military courts. In contrast, the dis-charge in lieu of court-martial is intended for use in amanner indicated by its designation--to dispose of specificcriminal charges outside of court.

2

Discharges imposed for criminal offenses by militarycourts are punitive and do not become effective until re-viewed and approved by a court of military review. A gen-eral court can impose both bad conduct and dishonorabledischarges. A special court can only impose a bad conduct4ischarge.

The chart below shows the major reasons why people aredischarged and the type of discharges authorized for eachreason.

Administrative dischargesOther Punitivethan discharges

honor- Bad Dis-Honor- able con- con- honor-

Reason able General ditions duct able

General grounds(including endof enlistment) yes Yes No No No

Unsuitability Yes Yes No No NoMisconduct Yes Yes Yes No NoIn lieu of court-martial. Yes Yes Yes No No

Court-martial Mo No No Yes Yes

Service members administratively separated under traineedischarge and marginal performer programs receive either anhonorable or general discharge. Only discharges awarded bya court-martial or in lieu of a court-martial can involveplea bargaining.

UNIFORM ADMINISTRATION OF JUSTICEiS THE OBJECTIVE OF THE CODE

The Uniform Code of Military Justice (10 U.S.C. 801-940)(Code) was enacted in 1950 and serves as the basis for themilitary criminal justice system. With the enactment of thecode, the services became subject to the same law. The leg-islative history 1/ shows that this law was to provide anew and better system of justice by insuring that there wouldbe nc disparities in the administration of justice among themilitary services. It set forth the fundamental rights ofmilitary people in the three main steps of criminal prosecu-tion: pretrial proceeding, trial, and appellate review.

1/81st Cong., ist Sess., S. Rep. No. 486, June 10, 1949, onH.R. 4080.

3

Shortly before passage of the code in 1950, a member ofthe Committee on Armed Forces made the following comments onthe Senate floor concerning its intended role in achievinguniformity in the administration of justice among the serv-ices. 1/

"* * * the code will be the sole statutory author-ity embodying both the substantive and the proce-dural law governing military justice and its ad-ministration. There will be the same law and thesame procedure governing all personnel in the armedservices. That this should be so is the settledconviction of most people,' and I believe no argu-ment is necessary to demonstLate its validity.

"* * * The procedure before trial, at the trial,and on review will be the same as if the case hadoccurred in any of the other armed forces. * * *The objective is to make certain not only that jus-tice be done to the accused, but that there be nodisparities between the services. * * *" (Under-scoring added.)

In commenting on the ccde durinq its debate in theCongress, the Secretary of Defense highlighted the import-ance of the protection and eauality of treatment it wouldprovide individuals in all the services. 1/ He stated:

"* * * it represents a great advance in militaryjustice in that it provides the same law and thesame procedures for all persons in the armedforces. By its terms, the same rights, privi-leges, and obligations will apply to Army, Navy,Air Force, and Coast Guard. I cannot emphasizetoo much the importance of this equality and thefact that I believe it will be an item which willenhance the teamwork and cooperative spirit ofthe services. (Underscoring added.)

Articles 36 and 56 of the code delegate authority tothe President to establish procedural rules and maximumpunishments. In exercising this delegation, the President,by Executive order, issued the Manual for Courts-Martial.Article 36 states that the President should

1/Vol. 96, "Congressional Record," 81st Conq., 2d Sess.,Part 1, p. 1,355.

4

"* * * so far as he considers practicable, aPPlythe principles of law and the rules of evidencegenerally recognized in the trial of criminalcases in the United States district courts * * *."

PLEA BARGAINING IS DONEWITHOUT DEFINITIVE GUIDANCE

Although not addressed in the code or covered in theManual for Courts-Martial, the services engage in plea bar-gaining in cases triable by court-martial, frequently withone of two results.

1. A plea aareement used in a military court-martialwh.n a .,ilty plea is exchanged for reduced chargesor a specific sentence. This agreement is authorizedby the individual services.

2. An administrative separation, at the request of theindividual, in lieu of a court-martial. Each ofthh services has its own regulations cover-ing thisprocess under broad authority from DOD.

The most significant difference between the two resultsis that one--an agreement used in courts-martial--is partof the judicial process and the other--discharge in lieu ofcourt-martial--is an administrative action. Tne latter doesnot give the accused the safeguards and protections quaran-teed under the judicial process. There are also importantdifferences in service policies and regulations governingplea bargaining.

A guilty plea is an essential component of a pleaagreement used in military court. The responsibilities ofa trial judge in determining whether a quilty plea shouldbe accepted are set forth in article 45 of the code andsection 70 of the Manual for Courts-Martial.

RESULTS OFPLEA BARGAINING

Of the 57,749 cases triable by court-martial in fis-cal year 1976, 29,909 (52 percent) were affected by pleabargaining. Some involved plea agreem.,ents but the greatmajority (87 percent) were administrative discharges in lieuof court-martial.

5

Numberinvolving

Number of pleaProcess cases bargaining

Administrative discharges inlieu of court-martial 26,940 26,940

Courts-martial without au-thority to imposepunitive discharges 1.4,862 (b)

Courts-martial with au-thority to imposepunitive discharges a/15,947 2,969

Total 57,749 29,909

a/Includes 982 Army courts-martial for which the number ofplea agreements was not available.

b/The number of plea agreements for this category of court-martial s not available. A DOD study shows, however,that they are used less frequently in courts-martial with-out authority to impose punitive discharges than thosewith this authority.

6

CHAPTER 2

CARE IS NEEDED IN PLEA BARGAINING

Ailitary appellate courts have approved the use of pleaagreements in military courts. However, they have expressedthe need to exercise caution in their use.

Since discharges in lieu of court-martial are used out-side of the military court system, they are not subject toreview by the military appellate courts. The Congress haswarned against taking administrative actions to circumventthe constitutional rights of service personnel, includingthe use of the administrative discharge system to imposepunishment.

THE PLEA BARGAINING PROCESS

After consulting with his defense counsel, the accuseddecides whether he wants to plea bargain. Agreements usedin a court-martial must be negotiated between the trial coun-sel and defense counsel, put in writing, and approved by theconvening authority. These agreements have two parts. Thefirst part contains the guilty plea and the second, the sent-ence agreed upon. The judge examines the first part of theagreement and determines from his questioning of the accusedwhether the agreement is acceptable. In a jury trial, thejudge may look at the second part of the agreement at anytime. If the trial is by judge alone, the judge must waituntil he has announced sentence before lookinq at the secondpart.

The process for getting a discharge in lieu of court-martial is much simpler. Once the accused reauests the dis-charge, approval is needed only by the discharge authority(normaliy an officer having the authority to convene a generalcourt).

Although the practices and procedures vary somewhat be-tween the services, the following chart generally outlinesthis process.

7

ALTERNATIVES FOR DISPOSING OF CRIMINAL OFFENSES TRIABLE BY COURT-MARTIAL

ACCUSED MAY IREQUESTIS NORMALLY REVIEWED THE DISCHARGEREQUEST THE DISCHARGREOUISCHARGEST0 AND RECOMMENDED FOR APPROVAL AUTHORITY ACCUSED IS

IN L EU OF I - I BY THE ACCUSED'S COMMANDER APPROVES DISCHARGED

COUR' MARTIAL OR THE STAFF IUDGE ADVOCATE THE REQUEST

AGREEMENT IS FORWARDED

TO STAFF JUDGE ADVOCATEGENERAL COURT-MARTIAL WHO ADVISES CONVENING

AUTHORITY ON A7TION TOCASE_~~~~ IS/~~ \BE TAKEN ON PRGPOSED

CASE IS ~~~~~~~~~~~~~~~AGREEMENTAGREEMENT ~~~~~~~~~~~~~~~~~~~~SENTENCE IS REVIEWED1

COMMANDING FORWARDED TO DEFENSE COUNSEL AT TRIAL, SENTENCE IS REVIEWEDDEFENSE ~ EFNS COUNSELN BY THE CONVENINGOPFICER OF APPROPRIATE MAY NEGOTIATE CNEIGTHE MILITARY B H OVNN

AN OFFENSEE OE ACCUSED SUPE9IOR A HAS THREE PLEA AGREEMENT AUTHORITY JUDGTE APOEMAY NSENTENCE IS SAUTEORITY AND THEPLEA AGREEMENT IMSED BSENTENCE HE APPROVESIS ~~~RECOMMENDS OFFICER WITHTRIA APPROVES THEWITH TRIAL CANNOT EXCEED THAT

COMMITTED COURT ICONVENING NATIVES COUNSEL AGREEMENT THE COURT CN ECEED THATCOUNSEL AGREEMENTSPECIFIED IN ANY PLEA

______________________ ~~~~~~~~~~~~AGREEMENTAGREEMENT IS SUBMITTED

DIRECTLY TO CONVENING

SPECIAL COURTMARTIAL AUTHORITY BY TRIALCOUNSEL

CASE MAY BE

TRIED WITH NO

PLEA AGREEMENT

,I___ _i

AGREEMENTS USED IN MILITARY' COURTS

The accused benefits from plea agreements in militarycourts by making certain that in exchange for a quilty pleathe sentence will be less than the authorized maximum thatcould be imposed by a court. But there are possible dangersinvolved in the use of these agreements.

The opportunity to plea bargain may induce an improvidentconfession of guilt from the accused. In highlighting thispotential effect, the Air Force Court of Military Review re-cently noted that a judge must bear in mind that an indivi-dual's freedom of choice could easily be compromised whenthere is a plea agreement. 1/ This court stated:

"* * * t..C military jiude must be finely attunedto the obvious fact that the convening authorityis in a greatly advantageous position in the ne-gotiations, and a great danger exists that thefreedom of choice of the accused may be easilyoverborne * * *

The code and Manual for Courts-Martial contain guidanceto insure the integrity of guilty pleas. Article 45 of thecode states that if the accused has entered the plea ofguilty improvidently or through a lack of understanding,the court shall proceed as though he had pleaded not guilty.The Manual for Courts-Martial, paragraph 70.b.(3), states:

"A plea of guilty will not be acceoted unless themilitary judge, * * * after the accused has beenquestioned, is satisfied not only that the accusedunderstands the meaning and effect of his Plea andadmits the allegations to which he has Pleadedguilty but also that he is voluntarily pleadingguilty because he is convinced that he is in factguilty."

In 1969 the U.S. Court of Military Appeals--the highestappellate court in the military judicial system--enunciatedthe exhaustive interrogation required by the judge beforeaccepting the agreement. 2/ It stated that the record oftrial

"* * * must reflect not only that the elementsof each offense charged had been explained tothe accused but also that the military trial

l/United States v. Avery, 50 C.M.R. 827 (1975).

2/United States v. Care, 40 C.M.R. 247 (1969).

11

judge or the president has questioned the ac-cused about what he did or did not do, and whathe intended (where this is pertinent), to makeclear the basis for a determination by the mi-litary trial judge or president whether theacts or the omissions of the accused constitutethe offense or offenses to which he is pleadingguilty. This requirement will not be satisfiedby questions such as whether the accused rea-lizes that a guilty plea admits every elementcharged and every act or omission alleged andauthorizes conviction of the offenses withoutfurther proof. * * * We believe the counsel,too, should explain the elements and determinethat there is a factual basis for the plea, buthis having done so earlier will nct relieve themilitary trial judge or the president of hisresponsibility to do so on the record."

* * * * *

"Further, the record must also demonstrate themilitary trial judge or president personallyaddressed the accused, advised him that his pleawaives his right against self-incrimination, hisright to a trial of the facts by a court-martial,and his right to be confronted by the witnessesagainst him; and that he waived such rights byhis plea. Based upon the foregoing inquiriesand such additional interrogation as he deemsnecessary, the n.ilitary trial judge or presidentmust make a finding that there is a knowing in-telligent and conscious waiver in order to ac-cept the plea.'

Even with this guidance the U.S. Court of Military Ap-peals has continued to express concern over the use of pleaagreements in two general areas.

-- The providence of the guilty plea, that is, the oru-dence or wisdom of the plea.

--The contents of the agreements.

In a 1975 decision this court staced: 1/

1/United States v. Holland, 50 C.M.R. 461 (1975).

12

"* * * Indeed, the many and varied schemes Lhathave been employed in dipsng of charges byway of the guiltplea oute have demanded ourcontinued scrutiny uf tne plea bargainin pro-cess. That this effort. under the guise of ef-ficiency and expeditioln is on-going is demon-strated by the circums:ances of the presentcase." (Underscoring added.)

In a 1976 decision this court stated: j_

"* * * trial judges must share the responsibil-ity, which until now has been borne by the ap-pellate tribunals, to police the terms of pre-trial agreements to insure compliance with sta-tutory and decisional law as well as adherenceto basi- notions of fundamental fairness."

The concerns expressed by appellate courts regarding the useif plea agreements are discussed in detail in appendix I.

DISCHARGES IN LIEU OF COURT-MARTIAL

Discharges in lieu of court-martial are used outside ofcourt and the protections of the judicial process. The ac-cused is faced with the decision of whether it is better tobe expeditiously discharged with virtual certainty of receiv-ing the most severe form of administrative discharge, orface a trial which could be lengthy and may result in a moreserious consequence--a Federal conviction, confinement, anda bad conduct or dishonorable discharge.

A February 18, 1975, letter from the Army Judge AdvocateGeneral to field commanders and staff judge advocates statedthe many advantages to the Government of adiinistratively dis-posing of offenses. This letter indicates that the use ofthe adm'nistrative process should be encouraged whenever ap-propriate. It states in part:

"* * * I am transmitting this letter to enlistyour personal aid and attention in insuringthat court-martial action is resorted to onlyin those cases where fully warranted and wherealternative administrative measures are clearlynot suitable.

1/United States v. Green, 52 C.M.R. 10 (1976).

13

"* * * This leads me to suggest that, in consider-ing the appropriate course of action in dealingwith such individuals, commanders take into ac-count that court-martial processes must inevit-ably consume a considerable amount of manpower,time, and effort, often requiring that the in-dividual be retained on duty in a pay statusuntil protracted statutory appellate processesare completed."

* * * * *

"I can asLure you that every effort is being madeto reduce processing time in the court-martialprocess. However, the requirements of the UniformCode of Military Justice cannot be short circuited,and * * * a fairly long period elapses from theinitial date of charges or apprehension until thefinal step in the appellate process is completed.As an illustration, it takes an average of slightlymore than one year for 'not guilty' plea cases andover nine moinths for 'guilty' plea cases to processfrom the beginning through decision by the Court ofMilitary Review. If action by the Court cf Mili-tary Appeals follows, another three to five monthswill be necessary. All during this period. the in-dividual is carried on the rolls and chargedagainst the Army strength. Unless he is in con-finement or on excess leave, the individual will becarried as a duty soldier, probably drawing fullpay and allowances after any forfeiture, fine, orconfinement portion of the sentence has beenserved. There are currently about 1,400 general orBCD [bad conduct discharges] special court-martialcases in some stage of appellate processing. Itis obvious that, as this number is reduced, effec-tive Army strength can be proportionately in-creased."

* * * * *

"* * * If these numbers could be reduced by employ-ing alternative administrative actions where appro-priate, there would be fewer people tied up in thetrials and the processing of trials, fewer personsin confinement, and more rapid returr of the in-dividual to useful duty or else his early depar-ture from the service so that a more effectivesoldier can promptly take his place. * * *"

14

The main advantage of using the discharge system todeal with criminal offenses is that it is expedient. How-ever, it lacks safeguards guaranteed under the code. Thereis no judge or ether neutral party involved when a dischargeis given in lieu of court-martial. As discussed earlierregarding plea agreements used in court, appellate courtswarn that the accused is at a great disadvantage even withthe presence of a judge. The judge must be certain that theaccused knowingly and voluntarily entered into the agreementand his actions are subject to appellate review.

The Congress has expressed concern about the administra-tive process and its lack of fundamental protections and dueprocess guaranteed under the code. In its report on hearingsin 1962, the Subcommittee on Constitutional Rights, Committeeon the Judiciary, United States Senate made it clear that theuse of an administrative system to circumvent the Protectionsprovided by the code would be viewed as an encroachment onthe rights of military people. The report 1/ states:

"* * * to the extent that the armed services useadministrative action to circumvent protectionsprovided by the Uniform Code, the intent of Con-gress is thwarted and the constitutional rightsof service personnel are jeopardized."

A 1971 report 2/ on legislation proposed by the HouseArmed Services Committee stated that over the years manyindividual Members of Congress as well as congressionalcommittees and bar associations have been concerned aboutrepeated complaints of administrative discharge practices.Cases were reported alleging that administrative separationswere being used as a substitute for punitive action. ThisCommittee was concerned about this problem because of theserious consequences of discharges under conditions otherthan honorable.

PLEA AGREEMENTS IN FEDERAL COURTS

The U.S. Supreme Court views plea agreements as an im-portant element in the judicial process, provided they are

1/Subcommittee on Constitutional Rights, Committee on theJudiciary, United States Senate, Constitutional Rightsof Military Personnel/Sumrmary-ReEort of Hearinjs, Pursuantto S. Res. 58, 88th Conq., 1st Sess., pp. IV and V (1963).

2/H. Rept. No. 92-496, 92d Conq., 1st Sess., 1971.

15

properly administered. In a 1977 decision 1/ thin courtstated:

"Whatever might be the situation in an idealworld, the fact is that the guilty plea and oftenconcomitant plea bargain are important componentsof this country's criminal justice system. Prop-erly administered, they can benefit all concerned.The defendant avoids extended pretrial incarcera-tion and the anxieties and uncertainties of atrial; he gains a speedy disposition of his case,the chance to acknowledge his guilt, and a promptstart in realizing whatever potential there maybe for rehabilitation. Judges and prosecutorsconserve vital and scarce resources. The publicis protected from the risks posed by thosecharged with criminal offenses who are at largeon bail while awaiting completion of criminal pro-ceedings."

l/Blackwedge, Warden, et al. v. Allison, 431 U.S. 63 (1977).

16

CHAPTER 3

ADMINISTRATIVE DISCHARGES IN

LIEU OF COURT-MARTIAL SHOULD BE ELIMINATED

Administrative discharges in lieu of court-martial arenot addressed in the code or Manual for Courts-Martial. Anumber of laws refer to one or more of the conditions underwhich administrative discharges are characterized, but nonespecifically mentions a type of discharge.

Department of Defense Directive 1332.14 prescribes thepolicies, standards, and procedures for discharging enlistedpersonnel under the administrative discharge program. Itstates that the services may discharge individuals "undercertain circumstances or conditions to meet the needs of theServices and members." In the directive three dischargecharacterizations are authorized--honorable, general, and un-der other than honorable conditions. An administrative dis-charge is authorized for individuals accused of crimes when

--punishment for the crime under the code includes abad conduct or dishonorable discharge which can onlybe imposed by a court-martial and

-- the accused requests an administrative discharge inlieu of court-martial.

The directive does not specifically require that a de-cision be made to court-martial or that the court whichwould try the case have the authority to impose a dischargebefore a dischiarge can be requested.

FREQUENCY

As can be seen from the following schedule, the use ofthe discharge in lieu of court-martial has rapidly increasedin recent years.

17

Number of discharges in lieu of court-martialFiscal Air Forceyear Army Marine Corps Navy (note a) Total

1967 294 1 0 129 4241968 384 7 0 370 7611969 532 471 0 425 1,4281970 6,993 3,351 0 386 10,7301971 12,041 4,704 214 557 17,5161972 25,515 1,825 1,363 915 29,6181973 21,066 1,684 1,657 475 24,8821974 17,672 2,728 2,266 285 22,9511975 14,784 3.437 2,790 601 21,6121Q76 16,055 7,976 2,446 463 26,940

a/Includes administrative discharges given for other reasons.

ADVERSE EFFECTS OF BAD DISCHARGES

If warranted, discharges in lieu of court-martial can behonorable or general. About 90 percent, however, are underother than honorable conditions. There are serious long-term consequences of a bad discharge, whether it is labeledpunitive and imposed by a court-martial or granted under theadministrative discharge system. Bad discharges adverselyaffect eligibility for veterans benefits and carry a stigmawhich may limit opportunities for civilian employment. 1/

The services recognize the stigma of a discharge inlieu of court--martial. For example, the Army"s applicationfor a discharge in lieu of court-martial contains the fol-lowing statement:

"I understand that, if my reauest for dischargeis accepted, I may be discharged under other thanhonorable conditions and furnished an UndesirableDischarge Certificate. I have been advised andunderstand the possible effects of an undesirabledischarge and that, -s a result of the issuanceof such a discharrc, I will be deprived of manyor all Army bene-its, that I may be ineligiblefor many or all benefits administered by the Vet-erans Administration, and that I may be deprivedof many rights and benefits as a veteran under both

1/See our report to the Chairman, Committee on Armed Services,United States Senate, "Need for and Uses of Data Recordedon DD Form 214' Report of Separation From Active Duty,"FPCD-75-126, Jan. 23, 1975.

18

Federal and State law. I also understand thatI may expect to encounter substantia-- prejudicein civilian life because of an undesirable dis-.charge" (Underscoring added.)

For purposes of establishing eligibility for benefits,the Veterans Administration subjects the discharge underother than honorable conditions to the same type of reviewas a bad conduct discharge. If the discharge under otherthan honorable conditions is given to escape trial by qen-eral court-martial, it is considered to have been imposedunder dishonorable conditions and benefits are automaticallydenied as if it were a dishonorable discharge.

WAIVER OF RIGHTS UNDER THE CODE

The code provides service members fundamental rightsin each of the three main steps in criminal prosecution--pretrial proceeding, trial, and appellate review. Whenthe accused chooses the alternative of a discharge in lieuof court-martial, he waives his right to a tr'al and any ac-companying appellate review.

In a judicial proceeding, a neutral party (militaryjudge) presides over the court. If a plea agreement is in-volved, the judge rules on its wisdom and acceptability. Heis required to be satisfied that the agreement was knowinglyand voluntarily entered into.

Without a trial in a military court there can be no ap-pellate review. Such a review is made to determine if court-martial proceedings are correct and the sentence is not un-duly harsh. Criminal cases are subject to two levels ofcourts--the courts of military review (the Army, Navy, andAir Force have separate courts) and the U.S. Court of Mili-tary Appeals. Both types of courts have the authoLity to setaside sentences.

Before a punitive discharge can be imposed, the cod,and Manual for Courts-Martial require that:

-- The accused be assigned qualified legal counsel toprepare and defend the case.

-- The accused be tried by a special or general court-martial which upon finding the accused quilty mustdecide that an appropriate sentence should includea punitive discharge.

19

-- The record of trial be reviewed by a staff judge ad-vocate or legal officer who must make a written rec-ommendation to the convening authority on the actionhe should take.

-- The findings and sentence of the court-martial bereviewed and approved by a general court-martialconvening authority.

-- The findings and sentence of the court-martial bereviewed and approved by a court of military review.

Upon appeal by the accused, the case may be reviewedby the U.S. Court of Military Appeals.

In contrast, the DOD directive and implementing serviceregulations governing idministratlve discharges in lieu ofcourt-martial require only that:

-- The accused be assigned qualified legal counsel priorto initiating the request.

---The accused sign a statement that he understands theadverse nature and possible consequences of a dis-charge under other than honoLable conditions.

--The discharge authority decide whether to approve therequest and if so, the type )f discharge.

DIFFERENCES AMONGSERVICES' REGULA'2IONS

Regulations covering discharges in lieu of court-martialdiffer among the services in the issues they address.

Contained in regulations ofArmmy Ar Force Marlne Corps Navy

Requirements:Filing of charges Yes No No YesAdmission of guilt Yes No Yes Yes

Guidance on:Evidence of gu:ilt No No Yes NoCircumstances jus-

tifying approval yes No Yes No

Also, there are important differences in what these reg-ulations say about the matters addressed and what actionsmust be completed before the accused is eligible to request

20

a discharge in lieu of court-martial. It is likely thatthese differences will produce inconsistencies in the out-come of similar cases.

The most important actions that occur from the time aperson is accused of a crime until trial by court-martial aresummarized below.

-- The immediate commander of the accused will make, orcause to be made, a preliminary inquiry into the sus-pected offenses sufficient to enable him to make anintelligent disposition of them.

--When the preliminary inquiry shows that offenses pun-ishable by the code have been committed, the immedi-ate commander will refer_ aropr iate charges forthose offenses which he believes cannot properly bedisposed of under nonjudicial punishment. In decidingwhether to file charges, the c(cmmander will considerthe evidence and past behavior of the accused. How-ever, conclusive proof is not needed. All that isgenerally needed is an honest belief that a crime wascommitted and that the accused was the person who com-mitted it. The amount and nature of the evidence ne-cessary to prefer charges is not the same as that re-quired to obtain a conviction. After the charges areprepared, the accuser must personally appear beforean officer authorized to administer oaths and swearto the charges.

-- If the immediate commander believes trial by court-martial is in order, he will forward the chargesand related papers through the chain-of-command un-II-the deci-sion to court-martial is approved by

the proper convening authority (or the case is re-turned to the immediate commander for nonjudicialpunishment).

-- If a decision is made to recommend the accused betried by general court-martial, an article 32 in-vestigation must accompany the charges and relatedpapers to the general court-martial convening au-thority. An article 32 investigation is conductedby a field gradie officer independent o the caseto inquire into the truth of the matters set forthin the charges and to determine what dispositionshould be made of the case. At the conclusion ofthe investigation, a formal report is prepared bythe investigating officer with his recommendationsas to what disposition should be made of the case.

21

-- Before the convening authority can direct trial bygeneral court-martial, he must refer the case to hisstaff judge advocate for review and advice. Thestaff judge advocate or legal officer must give theconvening authority a signed opinion about whether(i) each allegation is identified as a crime by thecode, (2) there is sufficient evidence to supporteach allegation, and (3) the article 32 investiga-tion largely complies with legal requirements.

--As soon as the decision is made to try the case in aspecial or general court-martial, a trial counsel isassigned. It is the trial counsel's respinsibilityto prepare the Government's case. In preparing thecase, he may, among other things, recommend to theconvening authority (1) dismissal of all charges, (2)dismissal of some charges, (3) preferring of additionalcharges, (4) a different level of court-martial, or (5)what action should be taken on any plea agreements ini-tiated by the accused.

Filing of charges

None of the services requires that the decision be madeto refer a case to a court having the authority to impose apunitive discharge before a discharge can be requested. TheArmy and the Navy are the only services that require court-martial charges to be filed; but the Army regulation statesthat the request may be made "regardless of the type ofcourt-martial to which the charges are referred." Air Forceregulations, however, state that the request may be initiated"regardless of whether formal charges have been preferred";and Marine Corps regulations do not mention whether chargesmust be preferred.

Admission ofguilt

As part of the request for a discharge in lieu of court-martial, Army and Marine Corps regulations require that theaccused admit guilt; Navy regulations require that the indi-vidual acknowledge misconduct; and the Air Force does notrequire any expression of wrongdoing.

Service regulations require that the following languagebe made a part of the request;

-- Army. "By submitting this request for discharge, Iacknowledge that I am guilty of the charge(s) againstme or of (a) lesser included offense(s) therein con-tained which also authorize(s) the imposition of abad conduct or dishonorable discharge."

22

--Marine Corps. "This reauest is based on my commis-sion of the following offense(s) in violation of theUniform Code of Military Justice." (In setting forththe philosophy behind the requirement, the regulationstates "Since a prerequisite for the issuance of adischarge * * * is conduct triable by court-martial,the submission of such request must contain an a_-knowledgement by the member that he has committed theoffense resulting from such conduct.")

-- Navy. "The basis for my request for undesirabledischarge for the good of the service stems from mymisconduct contained in the court-martial charqespreferred against me as indicated in enclosure (1)."

-- Air Force. "I hereby request discharge under AFM39-12, paragraph 2-78 (authorizing discharge in lieuof court-martial) for the good of the service."

Evidence of guilt

Only the Marine Corps provides guidance to the dis-charge authority on how to evaluate the evidence againstthe accused. But the Marine Corps does not require that acase be perfected. Its regulation states:

"Acceptance of a request for discharge for thegood of the service and a resultant dischargebased thereon does not require that a case beperfected against a member. Nor is it requiredthat the discharge authority have available tohim legally admissible evidence sufficient tojudicially establish the member's guilt of thealleged offense(s) beyond a reasonable doubt.An offense(s) shall not be considered to be nottriable because, before a court-martial, themember would have available to him one or moremotions in bar of trial."

Circumstances justifying_9approval

Only the Army and Marine Corps provide the dischargeauthority guidance in determining whether a discharge inlieu of court-martial should be approved. However, thisguidance differs materially.

The Army regulation instructs the discharae authorityto be selective in approving discharges in lieu of

23

court-martial. Such discharges are not to be approved when

a punitive discharge and confinement are considered appro-priate. The regulation states:

"The discharge authority should not be used whenthe nature, gravity, and circumstances surroundingan offense require a punitive discharge and con-finement, nor when the surrounding facts do notestablish a serious offense, even though the pun-

ishment in the particular case, under the UniformCode of Military Justice, may include a bad con-duct or dishonorable discharge. Considerationshould be given to the member's potential for re-

habilitation and his entire record should be re-viewed prior to taking action pursuant to thischapter. Use of this discharge authority is ap-propriate and encouraged when the commander de-

termines that the offense charged is sufficientlyserious to warrant elimination from the Serviceand the individual has no rehabilitation poten-tial. . "

In contrast, the Marine Corps regulation states that

such a discharge should be approved only if the dischargeauthority would, under the circumstances, approve a punitive

discharge as part of a sentence imposed by court-martial.

"In determining whether to approve an undesirabledischarge for the good of the service, the dis-charge authority should not do so unless, in act-ing as the convening authority of a court-martialupon a conviction of the offense(s) for which thedischarge for the good of the service is requested,

he would approve an unsuspended punitive dischargeas part of the sentence awarded by the court."

Thus, the Army regulation prohibits discharges in lieu

of ccurt-martial when a punitive discharge and confinement

are considered appropriate. In contrast, the Marine Corpsregulation only allows such discharges if a punitive dis-

charge wsuld be approved as part of the sentence for theoffense.

COMPARISON OF SEVERITY OF DISCHARGESIMPOSED IN LIEU OF COURT-MARTIAL WITHDISCHARGES IMPOSED BY COURT-MARTIAL

A study we made showed that for the same offense mili-

tary courts appear more hesitant to impose punitive

24

discharges than are discharge authorities to approve re-quests for discharges which can have the equivalent effect.We randomly selected a study group of Army, Navy, and MarineCorps people accused of -the same military crime--absence with-out leave for over 30 days--who returned during the 12-monthperiod ending March 31, 1975. When individuals in this groupreceived a discharge as a result of this offense, we wantedto know the severity of discharges being given administra-tively in lieu of court-martial compared to those imposed bycourt-martial. Absence without leave for over 30 days ispunishable by confinement up to 1 year and a dishonorabledischarge.

Of the 1,094 cases included in this study which were tri-able by court-martial: 1/

-- 577 received an administrative discharge in lieu ofcourt-martial; 532 (92 percent) of these dischargeswere under other than honorable conditions.

--517 were tried by court-martial; 60 (12 percent) weregiven a bad conduct discharge and confinement; and 6(1 percent) received a bad conduct discharge and noconfinement. A total of 219 received a sentence ofconfinement only. None received a dishonorable dis-charge.

This test confirmed DOD statistics which show that aperson requesting a discharge in lieu of court-martial hasabout 3 90 percent chance ot receiving the most severe typeo2 administrative discharge--a discharge under other thanhonorable conditions. In contrast, only 13 percent of thosetried Dy court-martial received a punitive discharge in thesentence imposed. The discharge awarded in every case wasthe least severe the coLrt trying the case could award--abad conduct discharge.

1/A total of 1,547 were in the study group which was selectedin connection with our ongoing study dealing with unauthor-ized absence. Of the 453 cases not triable by courts-martial, 307 were dealt with using nonjudicial action. Theremaining 146 cases included incidences where no action wastaken; action may have been taken but was not recorded inpersonnel records; Action was not directly related to theincident (i.e., finalization of administrative or punitivedischarge in process at time of the incident); and actionmay have been delayed pending return from subsequent ab-sence.

25

Many of the cases in which a discharge in lieu of court-martial was approved would probably not have gone to trialor would have been tried in a court which did not have theauthority to impose a punitive discharge. Of the 517 in ourstudy group tried by court-martial, 91 were tried in a sum-mary court, which does not have the authority to impose anydischarge. Only 11 cases were tried in a general court,which is authorized to give either a bad conduct or dishonor-able discharge.

CONCLUSIONS

We believe that discharges in lieu of court-martial arenot in the best interests of the accused or society for thefollowing reasons.

Criminal offenses are dealtwith contrar tocongressional intent

The code was adopted to provide the same law and proce-dures for all military persons accused of crimes. But thedischarge in lieu of court-martial results in the nonuniformtreatment of individuals because:

-- Disparities in service policies and regulations denypeople who request a discharge in lieu of court-martialthe same rights and protections.

-- Similar cases can be disposed of either administra-tively or under the judicial process which produceswide variances in how a case is disposed of. Underthe administrative process the accused always re-ceives a discharge, whereas under the judicial proc-ess a discharge is only one of many options fordealing with an offense.

Disposing of criminal wrongdoing outside the judicialprocess is contrary to congressional intent. The dischargein lieu of court-martial lacks the safeguards provided un-der the code to protect the rights of the accused and theinterests of society. In return for assurance that he willnot receive a Federal conviction, confinement, or a punitivedischarge, the accused waives his right to trial and appel-late review or a hearing by a discharge board. No judge orother neutral party rules on the providency of "he dischargerequest or determines that the accused ful.y understands theconsequences of the actions he is about to take. The typeof discharge imposed in virtually every case is a discharge

26

under other than honorable conditions--the most severe formof administrative discharge. Such a discharge can restricteligibility for veterans benefits and limit civilian employ-ment opportunities the same as a punitive discharge.

Before a discharge can be imposed by a military court,charges must be filed and legally admissible evidence de-veloped to judicially establish the person guilty beyond areasonable doubt. Punitive discharges can be imposed byonly special and general military courts and do not becomeeffective until reviewed and approved by a court of militaryreview.

The main advantage of the discharge in lieu of court-martial is that the services can expeditiously get rid ofproblem people. However, the legislative history of thecode does not support that the Congress intended such expe-diency. The Congress has specifically warned against usingthe administrative discharge system to impose punishment.But if no administrative discharge constitutes punishment,then the system does not allow any form of punitive actionto be taken against individuals accused of crimes. Thisdoes not serve the interests of society, nor is it fair tothose who are charged with similar offenses, but are forcedto face court-martial.

Avoiding trial is usually not inthe best interests of the accused

In most cases a discharge in lieu of court-martial isnot a bargain for the accused in the long run. Our test ofcases triable by court-martial showed that military courtsare far more hesitant to impose a sentence which includes apunitive discharge than are discharge authorities to approvrdischarges in lieu of court-martial.

Many cases in which a discharge in lieu of court-martialis approved may not have gone to trial or would have beentried in a court which did not have the authority to imposea punitive discharge. This is because service regulationsdo not require that (1) the convening authority decidewhether the case will be referred to a court having the au-thority to impose a punitive discharge before a dischargecan be requested or (2) a strong case be developed againstthe ccused before a discharge in lieu of court-martial canbe approved.

The DOD directive authorizing discharges in lieu ofcourt-martial states that individuals can only request such

27

a discharge when they have committed an offense punishableby a punitive discharge. But the Air Force regulation statesthat a request for a discharge in lieu of court-martial maybe initiated regardless of whether formal charges have beenpreferred. And the Army regulation states tU : the requestmay be made regardless of the type of court-martial to whichthe charges are eferred.

Further, policies and regulations are inconsistentamong services. For example, only the Marine Corps has aregulation which provides guidance on how to evaluate theevidence against the accused; the Air Force is the onlyservice which does not require an expression of wrongdoingas part of the request for a discharge in lieu of court-martial; and the Army and Marine Corps regulations which setforth the circumstances justifying approval of the dischargein lieu of court-martial differ materially.

Effectiveness of militarycourts is Ilimited

Offering the accused an option of a discharge in lieuof court-martial limits the effectiveness of military courts.On the one hand, these courts must enforce the law; on theother, they must p otect the rights of individual servicemember<. These responsibilities cannot be accomplished ifa major portion of criminal offenses are dealt with outsidethe judicial process.

Allows for treatment ofsymptoms rather thanii-Isease

The option of a discharge in lieu of court-martial al-lows commanders to treat the symptoms of a problem withoutattempting to cure its root cause. To illustrate, the in-cidence rate for the crime of absence without leave can bereduced by allowing individuals accused of this offense torequest a discharge in lieu of court-martial. But this inturn leads to a higher attrition rate which is costly andharmful to mission effectiveness. Thus, the only realsolution would be to determine why people are committingthis crime and to work on eliminating the causes.

Most offenses which lead to administrative dischargesin lieu of court-martial, such as absence without leave, arepeculiar to the military. Yet the stigma of a bad dischargestays with the individual in civilian life. The majority ofthose affected are young people--most below age 20. We

28

suspect that many who elect a discharge in lieu of court-martial do not understand the potential long-term conse-quences of a bad discharge.

RECOMMENDATIONS

To help insure that criminal offenses are dealt withunder the safeguards and protections of the judicial process,the Secretary of Defense should

--revise the directive on administrative discharges toeliminate discharges in lieu of court-martial and

-- direct the services to dispose of criminal charges ina manner consistent with the code and Manual forCourts-Martial.

DOD and service judge advocate general representativesgenerally agreed that uniform guidance covering the use ofagreements in military courts would be useful. The reactionwas mixed, however, regarding our proposal to discontinue theadministrative separation of individuals to avoid trial bycourt-martial. Some supported its discontinuance because itcompromises the process by which the Congress intended crim-inal offenses should be dealt with. Others voiced concernthat its elimination would increase the workload of militarycourts.

29

CHAPTER 4

PLEA AGREEMENTS IN MILITARY COURTS

Under broad authority granted by the code, the conven-ing authority may enter into a plea agreement regardingcharges and specifications under which the accused will betried and/or the maximum sentence which will be approved ifthe accused pleads guilty.

There is no single authoritative guide for the use ofplea agreements in military courts. Most of the existingguidance is contained in individual service publicationsand case law (decisions of the courts of military reviewand the U.S. Court of Military Appeals). The code and Man-ual for Courts-Martial address (1) the responsibilities ofa trial judge in accepting guilty pleas and (2) maximumpunishments.

FREQUENCY

Service statistics for fiscal year 1976 show that formilitary courts with the authority to impose punitive dis-charges, plea agreements are used far more frequently ingeneral courts-martial, which try the .rost serious cases.

General courts-martial Special courts-martialPlea ... Plea

Total agree- Per- Total agree- Per-cases ments cent cases ments cent

Air Force 227 9 4 1,136 0 -Army 1,457 752 52 a/799 239 30Navy 240 99 41 4,893 845 17Marine

Corps 401 172 43 5,812 853 15

Total 2,325 1,032 44 a/12,640 1,937 15

a/Does not include 982 courts-martial for which the numberof plea agreements was not available.

DIFFERENCES IN SERVICEPOLICY GUIDANCE

The following service publications contain policy guid-ance on plea agreements.

30

Air Force "Military Justice Guide," AFM 111-1

Army "Staff Judge Advocate Handbook," DAPamphlet 27-5

"Military Justice Handbook," DAPamphlet 27-10

"Desk Book for Special Court MartialConvening Authorities," DA Pamphlet27-18

"Military Justice Trial Procedure,"DA Pamphlet 27-173

Navy (also ap-plies to MarineCorps) "Manual of the Judge Advocate General"

In comparing this guidance we found differences in

-- what issues the guidance addresses (epp. II);

-- what the guidance says about similar issues (app. III);and

-- the clauses contained in the suggested service formatsfor plea agreements (app. IV).

We made no attempt to assess the effect of the differencesfound either in the overall quality of justice or the out-come of cases. However, we believe that differences in serv-ice policies and procedures inevitably lead to differences inthe way similar cases are handled.

The Army has been using plea agreements since about1953 when the Acting Judge Advocate General suggested theiruse, at the discretion of the convening authority, after ob-serving that they would be mutually advantageous to the Gov-ernment and the accused. The Secretary of the Nary authorizedthe use of negotiated pleas in 1957. The benefits of suchagreements, from the Navy viewpoint, are stated in the NavyMalnual of the Judge Advocate General:

"Experience has shown that opportunities for ad-vanced planning, savings in money and manpower,and a more expeditious administration of justicecan be effected by such agreements."

In 1975 the Secretary of the Air Force authorized theuse of plea agreements, but only in specific situationsand when approved by his Judge Advocate General. The AirForce takes the position that plea agreements are not in

31

the best interests of the Goverament or the accused and al-lows their use only when there is an overriding reason toavoid trial of all or a part of the issues. Four possiblejustifications for the use of plea agreements are statedin the Air Force "Military Justice Guide."

--When a traumatic examination of a child, whether avictim or otherwise, would be required.

-- When a public trial in which exposure of nationalsecurity matters or evidence of sensational miscon-duct would be involved.

-- When essential or important witnesses are at excep-tional distances, are not amenable to process, orare not available because of serious illness, in-valid condition, or other comparable reason.

-- When several accused are involved and the testimonyof one is required in the trial of one or more of theothers. In this case, a plea agreement may be adesirable alternative to granting immunity.

CONCLUSIONS

We believe that the lack of definitive guidance govern-ing the use of plea agreements has contributed to the dif-ferences we found in service policies and regulations. Thesedifferences mean that individuals are treated unequally amongthe services, which is clearly not intended by the coce. Thecode was adopted to provide that the law and procedures forindividuals in all the services are uniform before trial,during trial, and during review. Of particular concern isAir Force policy which places limitations on the use of pleaagreements by convening authorities.

The convening authority is able to enter into pleaagreements under broad authority conferred by the code,yet, the Secretary of the Air Force permits the use of pleaagreements only in specific instances and with his JudgeAdvocate General's prior approval. In doing so he hascreated an important policy difference among the services.

Military appellate courts have approved the use ofplea agreements in military courts but over the years havecontinued to express the need for caution in how they areused. We believe that policy guidance by the Presidentis needed to alleviate problems found by %hese courts andto help eliminate differences in service policy.

32

RECOMMENDATIONS

To help insure that military people accused of crimesare given the same rights, we believe the President shouldrevise the Manual for Courts-Martial to

--provide policy guidance, procedures, rules, stand-ards, and format on the use of plea agreements inmilitary courts and

-- specify any restrictions or limitations on the useof plea agreements.

33

CHAPTER 5

SCOPE

The objective of this review was to determine whetherplea bargainiing in the military conforms with the intent ofthe Congress. We examined and compared

--pertinent laws including the Uniform Code of MilitaryJustice and its legislative history,

--DOD and service regulations,

--congressional hearings on the administrative dischargesystem and the constitutional rights of military per-soai.el,

-- court cases, and

--articles in legal periodicals.

We discussed at length the matters addressed in the reportwith Office of Secretary of Defense and service representa-tives responsible for administering the justice system. Inaddition, we considered information developed in other mili-tary justice reviews. For example, to compare the frequencyin which administrative versus punitive discharges are im-posed in similar situations, we selected a study group of1,547 individuals accused of the same military crime--absencewithout leave for over 30 days. This data was developed inconnection with our ongoiag review of unauthorized absence.

We made no attempt zo assess the effect of the differ-ences found either in terms of the overall quality of justiceor the outcome of cases. However, we believe that differ-ences in service policies and procedures inevitably lead todifferences in the way similar cases are handled.

34

APPENDIX I APPENDIX I

CONCERNS OF APPELLATE COURTS OVER

THE USE OF PLEA AGREEMENTS

The courts of military review and the Court of MilitaryAppeals have expressed concern over the use of plea agree-ments. These concerns have centered on two principal areas:

-- The providence of the guilty plea.

-- The contents of the agreements.

PROVIDENCE OF THE GUILTY PLEA

Over the years, the appellate courts have been fearfulthat an accused may improvidently enter into a plea agree-ment out o' a desire to establish a limit on his punishment.Although t.he Manual for Courts-Martial does not deal speci-fically with plea agreements, it clearly sets forth the re-quirements for a trial judge to accept a guilty plea. Ap-pellate court decisions strongly encourage the trial judgeto play a more active and critical role in his evaluationof the agreement and the circumstances surrounding itsevolution.

In a 1968 decision--United States v. Cummings, 38 C.M.R.174 (1968)--the Court of Military Appeals observed that itwas continuing to have to reverse and remand cases because ofimprovident pleas.

"This case raises an important question concern-ing the administration of military justice inthe area of pretrial agreements to plead guilty.They have been employed in military trials since1953, and this Court has approved of their use,though not without reservations. * * * The bene-fit to the accused is the ceiling which is setabsolutely on his punishment in return for theplea. The danger inherent in the arrangement isthe entry of an improvident plea in order to in-sure that celIing, as evidenced by the many casesin which we have been required, on that basis,to reverse and remand. Hence, we have noted theneed for the law officer to make a most painstak-ing inquiry into the question of providence andthe effect of the agreement prior to taking theplea. * * * This process, we have said, estab-lishes providence upon the record and gives thelie to later, extra-record claims of improprietyin the case." (Underscoring added.)

35

APPENDIX I APPENDIX I

In a 1969 decision--United States v. Care, 40 C.M.R. 247(1969)--the Court of Military Appeals elaborated on the ex-haustive interroaeaton it believed was required of the mili-tary judge before accepting a pretrial agreement as provident,even though it recognized the defense counsel will have pre-viously made a similar determination. The Court stated therecord of trial:

"* * * must reflect not only that the elements ofeach offense charged had been explained to the ac-cused but also that the military trial judge or thepresident has questioned the accused about what hedid or did not do, and what he intended (where thisis pertinent), to make clear the basis for a deter-mination by the military trial judge or presidentwhether the acts or the omissions of the accusedconstitute the offense or offenses to which he ispleading guilty. This requirement will not besatisfied by questions such as whether the accusedrealizes that a guilty plea admits 'every elementcharged and every act or omission alleged and au-thorizes conviction of the offenses without furtherproof.' * * * We believe the counsel, too, shouldexplain the elements and determine that there is afactual basis for the plea, but his having done soearlier will not relieve the military trial judgeor the president of his responsibility to do so onthe record."

* * * * *

"Further the record must also demonstrate the mili-tary trial judge or president personally addressedthe accused, advised him that his plea waives hisright against self-incrimination, his right to beconfronted by the witnesses against him; and thathe waived such rights by his plea. Based uponthe foregoing inquiries and such additional in-terrogat:on as he deems necessary, the militarytrial judge or president must make a finding thatthere is a knowing, intelligent and consciouswaiver in order to accept the plea."

The Air Force Court of Military Review, in its firstcase involving pretrial agreements, which occurred in 1975,expressed its reservations about such agreements--UnitedStates v. Avery, 50 C.M.R. 827 (1975)--because of t-H poten-tial for an improvident plea.

36

APPENDIX I APPENDIX I

"We, too, have our reservation about the proprietyof plea bargaining. A reading of the authoritiescited in the body of this decision teaches notonly that there_are-great risks of improvidentpleas being entered under the ressure of a desireto have a limit on 'he punishment, but also therei- real daner tat tr la-personnel, _arpEcuart yefense counsel, will become laxlin their atenttionto detail and -the-fTi-t-__tvof'-telr- avocacy. Wentend e extemely vigilant to any a use of

the accused's rights and protections and willclosely scrutinize every case in which a negotiatedplea has been entered." (Underscoring added.)

In two 1976 decisions, the Court of Military Appealsfurther expounded on the role expected of a trial judge indetermining the providence of the guilty plea and deter-mining the legality of the agreement.

1. In United States v. Elmore, 51 C.M.R. 254 (1976),the CiTef Judge state-d, n a coacurring opinion:

"The ambiguity and apparent hidden meanings whichlurk within various pretrial agreement provisionssuch as the one presently before us as well asthose in * * * [past cases] lead me to concludethat hence-forth, as part of the * * * [providence]inquiry, the trial judge must shoulder the primaryresponsibility for assuring on the record that anaccused understands the meaning and effect of eachcondition as well as the sentence limitations im-posed by an existing pretrial agreement. * * *

"In addition to his inquiry with the accused, thetrial judge should secure from counsel for theaccused as well as the prosecutor their assur-ance that the written agreement encompasses allof the understandings of the parties and thatthe judge's interpretation of the agreement com-ports with their understanding of the meaningand effect of their plea bargain. For * * *[providence] inquires conducted after the dateof this opinion, I will view a failure to con-duct a plea bargain lnuiryas a matter affect-ln[ the providence of the accused's lea." (Un-derscoring added.) -

37

APPENDIX I APPENDIX I

2. In a later case--United States v. Green 52 C.M.R.10 (1976)--the Chief Judge further observed thattrial judges must begin sharing with the appellatecourts the burden of policing pretrial agreements.

"Our discussion thus far has focused upon limitationson the trial judge's inquiry into the terms of a pre-trial agreement. Of equal importance are his af-firmative obligations insofar as negotiated pleasare concerned. In a concurring opinion in UnitedStates v. Elmore * * * I observed that trial judges,as part of their inquiry into the providence of aguilty plea, should carefully inquire into theterms and conditions of any existing pretrial agree-ment."

* * * * *

"We are not unmindful of the additional burden suchan inquiry would place on the trial judiciary.Nevertheless, the propriety and meaning of variousplea bargain provisions remains a fertile source ofappellate litigation. * * * Judicial scrutiny ofplea agreements at the trial level not only willenhance public confidence in the plea bargainingprocess, but also will provide invaluable assist-ance to appellate tribunals by exposing any secretunderstanding between the parties and by clarify-ing on the record any ambiguities which lurkwithin the agreements. More importantly, a pleabargain inquiry is essential to satisfy the sta-tutory mandate that a guilty plea not be acceptedunless the trial judge first determines that ithas been voluntarily and providently made. SeeArticle 45 (a), Uniform Code of Military Justice,10 U.S.C. S 845(a). Finally, we believe trialjudges must share the responslbillty, which un-til now has been borne by the aRpellatet-ib-unals,to police the terms of retrial agreements to in-sure compliance with statutory and decisional lawasweTas as aderence to basc inotions of funda-menal fairness-." (Underscoring ad&6a.)

CONTENTS OF THE AGREEMENT

Appellate courts have also expressed concern over con-ditions included in plea agreements that would deny the ac-cused a fair trial by interfering with his trial rights. As

38

APPENDIX I APPENDIX I

shown in appendixes III and IV the services have issued guid-ance on preparation of the agreement and clauses that may benegotiated and included in plea agreements. But the extentof guidance provided varies among the services and may not besufficiently definitive and complete in any service. Appel-late court decisions have provided additional guidance in anumber of areas including

1. The inclusion of conditions precluding the accusedfrom raising the issue of

-- jurisdiction (United States v. Banner, 22 C.M.R. 510(1956));

-- speedy trial (United States v. Cummings, 38 C.M.R.174 (1968) and United States v. Troglin, 44 C.M.R.237 (1972));

-- denial of due process (United States v. Cuimmings);and

-- double jeopardy (United States v. Troglln).

2. The suggestion that the Navy format tor pretrialagreements should be amended to provide the agree-ment be cancelled if the military judge rejects theguilty plea. (United States v Harness, 48 C.11.R.846 (1974)).

3. The determination that contingent provisions are con-trary to public policy and void if they require anaccused to waive fundamental rights, or if they mayinduce the accused to commit perjury. (UnitedStates v. Evans, 49 C.M.R. 86 (1974)).

4. The requirement that the accused elect trial by mili-tary judge alone (United States v. Schmeltz, 50 C.M.R.83 (1975)).

5. The finding that the agreement cannot limit the orderor timing when certain motions might be made at trial.(United States v. Holland, 50 C.M.R. 461 (1975)).

In the latter decision, the Court provided the followingexplanation for its decision (quoting a paragraph from one ofits prior decisions (united States v. Cummings).

"Attempting to make them into contractual typedocuments which forbid the trial of collateral

39

APPENDIX I APPENDIX I

issues and eliminate matters which can and shouldbe considered below, as well as on appeal, sub-stitutes the agreement for the trial and, indeed,renders the latter an empty ritual. We suggest,therefore, that these matters should be left forthe court-martial and appellate authorities toresolve and not be made the subject of unwarrantedpretrial restrictions.

"Under this particular standard, as well as themore general one implicit in opinions dealingwith command control, extra-judicial infringementor interference with the trial and its proceduresis forbidden. Even though well-intentioned, thelimitation on the timing of certain motions con-trolled the proceedings. By orchestrating thisprocedure, there was an undisclosed halter onthe freedom of action of the military judge, whois charged with the responsibility of conductingthe trial; it also might have hampered defensecounsel in his function of faithfully serving hisclient. Being contrary to the demands inherent ina fair trial, this restrictive clause renders theagreement null and void."

In a subsequent decision, the Chief Judge encouragedtrial judges to take a more active and critical role inevaluating the propriety of the pretrial agreement condi-tions (United States v. Elmore). He stated:

"Where the plea bargain encompasses conditionswhich the trial judge believes violate either ap-pellate case law, public policy, or the trialjudge's own notions of fundamental fairness, heshould, on his own motion, strike such provisionsfrom the agreement with the consent of the par-ties."

Again, the Chief Judge elected to emphasize the needfor trial judges to actively participate in policing theconditions of pretrial agreements (United States v. Green).He stated:

"Finally, we believe trial judges must share theresponsibility, which until now has been borne bythe appellate tribunals, to police the terms ofpretrial agreements to insure compliance withstatutory and decisional law as well as adherenceto basic notions oC fundamental fairness."

40

APPENDIX I APPENDIX I

To show the controversial nature of the inclusion ofvarious conditions in pretrial agreements, the senior judgein a recent dissenting opinion observed that very narrowlimitations should be placed on the legality of such condi-tions (United States v. Elmore). He stated:

"Why the military perpetuates its sequential foraysinto control of the trial proceedings via pretrialagreements is beyond my understanding, but I, forone, refuse to condone nonjudicial restriction ofthe due course of judicial process. Pretrialagreements have been employed in the military since1953 and this Court has permitted their use, thoughnot without certain reservations. However, in myopinion, inclusion in the agreement of any condi-tions other than those addressing the nature ofthe plea and the limitation on maximum sentenceposes an intolerable risk of jading military jus-tice. Therefore I respectfully dissent."

41

APPENDIX II APPENDIX II

ITEMS INCLUDED IN SOME, BU% NOT ALL, MILITARY SERVICE

GUIDELINES FOR THE USE OF PLEA AGREEMENTS

Is item included inthe following serv-

ice regulations?Air

Items Force Army Navy

1. An unreasonable multiplication of No Yes Yescharges which might tend to inducean accused to enter into a pleaagret.ent will be avoided.

2. An accused shall not be induced to No No Yesplead guilty to a lesser includedoffense by the preferring of moreserious charges.

3. In no instance should an accused No Yes Nowho indicates that he believeshimself innocent of the offensescharqed be permitted to enter aplea of guilty.

4. If it is the desire of the accused No Yes Nothat defense counsel attempt toprocure an agreement with theconvening authority, the defensecounsel is o3ligated to see thatthe accused's wishes are conveyedto the convening authority.

5. The defense counsel should not No Yes Nopermit the accused to submit anyproposal until all the terms ofthe proposed agreement have beenfully explained to the accused andthe latter has made an informedand unqualified request that suchproposal be prepared and submitted.

6. The accused should be apprised No Yes Nofully of the reaction of the con-vening authority to any proposalsmade on bcnalf of the accused.

42

APPENDIX II APPENDIX II

Is item included inthe following serv-ice reQulations?Air

Items Force Army Navy

7. If the convening authority rejects No Yes Nothe accused's offer to plead guilty,the written offer should not be in-cluded in the allied papers unlessthe defense requests inclusion.

8. The sentence to be approved by the No Yes Yesconvening authority nursuant tothe agreement must be appropriatefor the offense(s).

9. The Government can withdraw from Yes Yes Nothe agreement any time prior toarraignment.

10. Once entered, the Government must No Yes Noscrupulously carry out the agree-ment.

11. The plea agreement should never Yes Yes Nobe used as a substitute for hardwork and thorough preparation of acase. The sole consideration fora defense counsel should be thebest interest of the accused.

12. Defense counsel has a continuing No No Yesduty, despite a plea agreement,to vigorously represent the ac-cused before the court with re-spect to the sentence to be ad-judged.

13. The trial judge should pass on Yes No Nothe legality of the agreementand include it in the record asan appellate exhibit.

43

APPENDIX II APPENDIX II

Is item included inthe following serv-

ice regulations?Air

Items Force Army Navy

14. The judge is authorized to ex- No a/Yes Noamine the sentence provisionsof the plea agreement at anytime at his own discretion.

15. During the trial (in a reportedout-of-court hearing) the judgeshould

-- determine whether the accused Yes Yes Nounderstands the agreement,

-- advise the accused that the Yes Yes Noplea of guilty may be withdrawnat any time before sentence isannounced,

--determine whether the accused No Yes Nois satisfied with his counsel,

--determine from the accused Per- No Yes Nosonally whether he is pleadingguilty because he is guilty,

-- and again advise him of the No Yes Nomeaning and effect of theguilty plea.

16. The members of a court must not be Yes No Yesinformed of the existence of a pleaagreement.

17. The court must be made sufficiently Yes Yes Noaware of the circumstances of theoffense to adjudge an appropriatesentence.

18. Post-trial misconduct by the accused Yes No Nowill not be grounds for withdrawalfrom or failure to comply with theagreement.

a/In 1976, the Court of Military Appeals overruled this pro-cedure.

44

APPENDIX III APPENDIX III

DIFFERENCES IN WHAT SERVICE GUIDANCE

SAYS ABOUT PLEA AGREEMENTS

Guidance is includedin regulations ofAir

Guidance Force Army Navy

1. A plea agreement is an agree- Yes Yes Yesment between the accused and theconvening authority.

2. The agreement must be unambiguous Yes Yes Yesand in writing.

3. The suggested format must be modi- Yes No Yesfied as appropriate to include allthe agreement made between the ac-cused and the convening authority.No matters "understood" betweenthe parties should be omitted fromthe written agreement.

4. In plea agreements the accusedagrees to plead guilty to specifiedoffenses and the convening author-ity agrees to one or more of thefollowing:

-- The sentence approved will not Yes Yes Yesexceed the sentence agreed upon.

-- The offense charged will be re- Yes Yes Noduced to a lesser included of-fense.

--The remaining charges and speci- Yes Yes Nofications will be withdrawn.

-- The case will be referred to a Yes No Nocertain level of court-martial.

-- In very unusual cases, other Yes No Noclearly stated terms.

5. The guidance provided is general in No Yes Nonature and not intended to be de-finitive.

45

APPENDIX III APPENDIX III

Guidance is includedin regulations of

Guidance Force Ary Navy

6. Variations of such agreements may No Yes Notake the form of disapproval, sus-pension, or reduction of any adjudgedconfinement; disapproval, reductionin quality, or suspension, of an ad-judged punitive discharge; disap-proval, suspension, or reduction ofadjudged forfeitures; or a combina-tion of any of the foregoing.

7. For the purpose of an agreement, No No Yesthe sentence is considered to bein these parts: the punitive dis-charge, period of confinement orrestraint, amount of forfeitureor fine, and reduction in rank orgrade.

8. The sentence which will ultimately Yes Yes Yesbe approved by the convening au-thority should, considering thecircumstances of the particularcase, be appropriate for the of-fense(s).

9. The agreement must not waive the Yes Yes Yesaccused's rignt to present evi-dence in extenuation and mitigation.

46

APPENDIX III APPENDIX III

Guidance is includedin reaulations of

AirGuidance Force Armiy Navy

10. The agreement must not contain any Yes Yes Noprovision circumscribing the rightsof the accused.

11. Any provision of the agreement No Yes Nowhich purports to waive the ac-cused's right to due process iscontrary to public policy and void.

12. The agrement must not prohibit the No Yes Noparties from making the court suf-ficiently aware of the offense'ssurrounding circumstances to enablethe court to adjudge an appropriatesentence.

13. There should not be any agreement, No Yes Noexpressed or implied, that the ac-cused will forego his right to berepresented by counsel during ap-pellate review.

14. Normally, the agreement should con- Yes Yes Notain a provision for a writtenstipulation of facts entered intoby both counsels and the accusedconcerning the commission by theaccused of the offense(s) as ameans of furnishing the membersof the court-martial with a basicframe of reference within whichto adjudge an appropriate sentence.

15. Suggested form for the plea agree-ment shows the following signaturesare required:

-- accused. Yes Yes Yes

-- defense counsel. Yes Yes Yes

-- trial counsel. No Yes No

-- staff judge advocate. Yes No No

-- convening authority. Yes Yes Yes

-- another witness. No No Yes47

APPENDIX IV APPENDIX IV

COMPARISON OF CLAUSES CONTAINED IN

AIR FORCE, ARMY, AND NAVY SUGGESTED

FORMATS FOR PLEA AGREEMFUTS

CLAUSES IN ALL THE SERVICES' FORMATS

I (the accused), (the Navy format contains the added words:"for good consideration and") after consultation with mycounsel do agree to offer a (the Navy format contains thewords: "enter a voluntary") plea of Guilty to the chargesand specifications listed below, provided the sentence asapproved by the convening authority will not exceed thesentence hereinafter indicated by me.

That I am satisfied with my defense counsel (the Navy formatcontains the added words: "in all respects.")

That this offer to plead guilty originated with me (the AirForce and Navy format contains the added words: "and mycounsel") that no person or persons whomsoever have made anyattempt to force or coerce me into making this offer orpleading guilty.

That my counsel has fully advised me of the meaning andeffect of my guilty plea and that I fully understand andcomprehend the meaning thereof (the Air Force format containsthe added words: "and the consequences of this plea"; theNavy format contains the added words: "and all of its at-tendant effects and consequences").

That I understand that I may withdraw this plea at any timebefore sentence but not after sentence is announced.

That I understand this offer and agreement.

CLAUSES IN AIR FORCEAND ARMY FORMATS ONLY

I (the accused) have read (the Army clause states: "had anopportunity to examine") the charqe(s) and specification(s)alleged against me.

I am aware that I have a leqal and moral right to plead NotGuilty to the Charge(s) and Specification(s) under which Iam about to be tried and to place upon the prosecution theburden of proving my guilt (the Air Force clause containsthe following additional words: "beyond reasonable doubt bylegal and competent evidence").

46

APPENDIX IV APPENDIX IV

I further understand that this agreement will be automaticallycancelled upon the happening of any of the following events:

Failure of agreemert-with the trial counsel on the con-tents of the stipuLation of facts.

The withdrawal by either party from the agreement prior totrial.

The changing of my plea by anyone during trial fromguilty to not guilty.

The refusal of the court to accept my plea of guilty.

CLAUSES IN AIR FORCEFORMAT ONLY

The Charge(s) and Speci.fication(s) have been explained to me(the accused) by my defe:nse counsel.

I understand the Charge(s) and Specificationts).

I understand that this offer, when accepted by the conveningauthority, will constitute a binding agreement. I assertthat I am in fact guilty of the offense(s) to which I am of.-fering to plead guilty and I understand that this agreementwill permit the Government to avoid presentation in court ofsufficient evidence to prove my guilt. I offer to pleadguilty only because it will be in my best interest that theconvening authority grat. me the 'lief set forth in Appen-dix A. I understand that I waive my right to a trial of thefacts and to be confronted by the witnesses against me, andmy right to avoid self-incrimination so far as a plea ofguilty will incriminate me.

In making this offer, I state that:

My counsel has fully advised me of the nature of thecharges against me, the possibility of my defendingagair.st them and any defense which might apply.

I understand that the signature of the convening au-thority to this offer and to Appendix A, or to anymodified version of Appendix A which I also sign, willtransform this offer into an agreement binding upon meand the Government.

I understand that, if this agreement is cancelled for anyreason stated above, this offer for an agreement cannot be

49

APPENDIX IV APPENDIX IV

used against me in any way at any time to establish my guiltof the offense(s), and the limitations upon disposition ofmy case set forth .n Appendix A will have no effect.

This document and Appendix A include all of the terms of thispre-trial agreement and no other inducements have been made bythe convening authority or any other person which affect myoffer to plead guilty.

Also, defense counsel is required to complete the followingcertification:

I certify that I have given the accused the ad-vice referred to above, that I have explained tohim the elements of the offense(s) and that Ihave witnessed his voluntary signature to thisoffer for a pretrial agreement. I am a member ofthe bar of ( ) (and I am a judgeadvocate) (certifTed/not certified under Article27(b)).

CLAUSES INAIR FORCEAND NAVY FORMATS ONLY

I (the accused) consider my defense counsel Qualified (theAir Force format contains the word: ("competent") to rep-resent me in this court-martial.

CLAUSES IN ARMY FORMAT ONLY

I (the accused) have had the opportunity to examine the in-vestigating officer's report and all statements of witnessesattached thereto.

And I agree upon acceptance of this offer to enter into awritten stipulation with the trial counsel of facts as tothe circumstances of the offense(s). This stipulation is tobe used only in pursuance of this agreement to inform themembers of the court of matters pertinent to an appropriatesentence.

In offering the above agreement, I should like to statethat:

I understand that I have agreed to enter into thestipulation of facts as set out above. If my pleais not accepted, this offer to stipulate is nulland void.

50

APPENDIX IV APPENDIX IV

I further understand that this agreement will au-tomatically be cancelled upon the happening of anyof the following events:

Modification at any time of the agreedstipulation of facts without the consentof all parties to the stipulation.

CLAUSES IN NAVY FORMAT ONLY

I (the accused) do hereby certify:

That should the court award a sentence which is less, or apart thereof is less, than that set forth and approved inthe agreement, then the convening authority, according tolaw, will only approve the lesser sentence.

That I have been advised this offer cannot be used againstme in the determination of my quilt on any matters arisingfrom the Charges and Specifications made against me in thiscourt-martial.

That it is expressly understood that, for the puroose ofthis agreement the sentence is considered to be in theseparts, namely: the punitive discharge, period of confine-ment or restraint, amount of forfeiture or fine, and reduc-tion in rate or grade.

51

APPENDIX V APPENDIX V

PRINCIPAL OFFICIALS

RESPONSIBLE FOR ADMINISTERING

ACTIVITIES DISCUSSED IN THIS REPORT

Tenure of officeFrom To

DEPARTMENT OF DEFENSE

SECRETARY OF DEFENSE:Dr. Harold Brown Jan. 1977 PLesentDonald H. Rumsfeld Nov. 1975 Jan. 1977

DEPUTY SECRETARY OF DEFENSE:Charles W. Dullcan, Jr. Jan. 1977 PresentWilliam P. Clements Jan. 1973 Jan. 1977

ASSISTANT SECRETARY OF rFENSE(MANPOWER, RESERVE AT :RS, ANDLOGISTICS):

John P. White May 1977 PresentCarl W. Clewlow (acting) Jan. 1977 May 1977David P. Taylor July 1976 Jan. 1977

DEPARTMENT OF THE ARMY

SECRETARY OF THE ARMY:Clifford Alexander Jan. 1977 PresentMartin R. Hoffman Auq. 1975 Jan. 1977

DEPARTMENT OF THE NAVY

SECRETARY OF THE NAVY:W. Graham Claytor, Jr. Feb. 1977 PresentJ. William Middendorf II Apr. 1974 Feb. 1977

COMMANDANT OF THE MARINE CORPS:Gen. Louis H. Wilson July 1975 Present

DEPARTMENT OF THE AIR FORCE

SECRETARY OF THE AIR FORCE:John C. Stetson Apr. 1977 PresentThomas C. Reed Jan. 1976 Apr. 1977

52

APPENDIX V APPENDIX V

Tenure of officeFrom To

DEPARTMENT OF TRANSPORTATION

SECRETARY OF TRANSPORTATION:Brock Adams Jan. 1977 PresentWilliam T. Coleman Mar. 1975 Jan. 1977

53