Headquarters, Department Army

1 THE army headquarters , Department of the army Department of the army Pamphlet 27-50-210 June 1990 Table of Contents Articles Officer Administrative Eliminations-A System in Disrepair .. 3 r) Major D. Ben Tesdahl USAREUR Regulation 27-9. Misconduct by Civilians .. 16 Captain James Kevin Lovejoy USALSA Report .. 21 United States army Legal Services Agency The Advocate for Military Defense Counsel DAD Notes .. 21 Resistance as a Component of Force in Rape: Clear Guidance From the army Court of Military Review; Uniform Code of Military Justice Article 38(c): Trial Defense Counsel s Under Utilized Tool of Appellate Advocacy Trial Defense Service Note .. 24 Avoiding Conflicts of Interest in Trial Defense Practice Captain Nancy A. Higgins Government Appellate Division .. 31 Charting Scylla and Charybdis: A Guide for Military Judges and Trial Counsel on Admitting Evidence of Other Crimes to Prove Intent Captain Karen K Johnson Trial Judiciary Note.

2 33 Mistake of Fact, Specific Intent. and v. Langley Lieutenant Colonel Patrick P. Brown Contract Appeals Division Note .. 37 When Winning Isn t Enough: Boards of Contract Appeals and Monetary Sanctions for Frivolous and Bad Faith Conduct in Administrative Lltigation Lieutenant Colonel Clarence D. Long Ill Regulatory Law Office Note .. 43 TJAGSA Practice Notes .. 45 Instructors, The Judge Advocate General s SchoolP Criminal Law Notes .. 45 Military Rules of Evidence Update; Who Must Read Article 31(b) Warnings; COMA Decides Loukas; Multiple Requests, Profit Motive, and Entrapment; Rioting as an Offense Under Military Law; Proving Lack of Consent for Intra-Family Sex Crimes Legal Assistance1tems .. 54 Tax Note (Distributions From Individual Retirement Arrangements); Estate Planning Notes (he Life Insurance Proceeds Included in Decedent's Oross Estate?; Property Included in Federal Gross Estate Despite State Court Order); Landlord-Tenant Law Notes (Fair Credit Reporting Act Applies to Reports on Tenants; Dollar-a-Day Charge for Late Rent Constitutes Unlawful Penalty); Consumer Law Note (Credit Card Address and Phone Number Requirements); Family Law Note F (Uniformed Services Former Spouses' Protection Act Update) Claims Report.

3 64 United States army Claims Service POV Shipment Claims: Demystifying the Recovery Process Mr. Andrew 1. Peluso Claims Notes .. 69 Personnel Claims Recovery Note (Addressing DD Form 1843); Personnel Claims Note (Claims for Military Uniforms); Affkmative Claims Notes (Deposits; Compromise and Waiver Requests); Management Notes (Missing Settlement Checks and Checks Returned by Claimants; Sorting and Marking Claims Files Sent to USARCS; Command Expenditure Allowance (CEA) Reporting Requirements) Labor and Employment Law Notes .. 71 OTJAG Labor and Employment Law Ofice, FORSCOM Staff Judge Advocate's Oflee, and TJAGSA Administrative and Civil Law Division Labor Law (Contracting Out; Reconsideration of Arbitrator Awards; Exclusivity of Grievance Procedure; Negotiability-"Excessively Interfere"; Unfair Labor Practices-General Counsel Discretion); Equal Employment Opportunity Law (Standing; Handicap Discrimination; Religious Discrimination; Sex Discrimination; Attorneys' Fees); Civilian Personnel Law (Excepted Service Employees; Civilian Drug Testing; Attorneys' Fees; Handicap-Firm Choice; Qualified Handicapped Employee; Reinstatement to Former Position; Security Clearance; MSPB Jurisdiction; Employee Denial of Misconduct; Office of Special Counsel Stays Crlmlnal Law Division.)

4 17 Criminal Law Division, OTJAG Supreme Court-1989 Term. Part 111 Colonel Francis A. Gilligan and Lieutenant Colonel Stephen D. Smith Change 4 to the Manual for Courts-Martial Notes From the Field ..,.. 80 /--Video Teleconferencing; Legal Administrator Techical Certification Training at Fort Hood Guard and Reserve Affairs Item .. 82 Judge Advocate Guard and Reserve Affairs Department , TJAGSA JAGC-USAR Professional Development and Assignment Patterns for the 1990's Dr. Mark Foley CLE News .. a5 Current Materlel of Interest .. 87 The army Lawyer (ISSN0364-1287) Editor Captain Matthew E. Winter The army Lawyer is published monthly by The Judge Advocate General's School for the official use of army lawyers in the performance of their legal ksponsibilities. The opinions expressed by the authors in the articles, however, do not necessarily reflect the view of The Judge Advocate General or the Department of the army .

5 Masculine or feminine pronouns appearing in this pamphlet refer to both genders unless the context indicates another use. The army Lawyer welcomes articles on topics of interest to military lawyers. Articles should be typed double-spaced and submitted to: Editor, The army Lawyer, The Judge Advocate General's School, army , Charlottesville, Virginia 22903-1781. Footnotes, if included, should be typed double-spaced on a separate sheet. Articles should also be submitted on floppy disks, and should be in either Enable, WordPerfect, Multimate, DCA m,or ASCII format. Articles should follow A Uniform System of Citation (14th ed. 1986) and Military Citation (TJAGSA. July 1988). Manuscripts will be returned only upon specific request. No compensation can be paid for articles. The army Lawyer articles are indexed in the Index to Legal Periodicals, the Current Law Index, the Legal Resources Index, and the Index to Government Periodicals.

6 Individual paid subscriptions are available through the Superintendent of Documents. Oovernment Printing Office, Washington. 20402. Address changes: Reserve Unit Members: Provide changes to your unit for SIDPERS-USAR entry. IRR, IMA, or ACR: Provide changes to personnel manager st ARPERCEN. National Guard and Active Duty: Provide changes to the Editor, The army Lawyer, TJAGSA. Charlottesville, VA 22903-1781. Issues may be cited as The army Lawyer, [date], at lpage number]. /h Second-class postage paid at Charlottesville. VA and additional mailing offices. POSTMASTER Send address changes to The Judge Advocate Oeneral's School, army . Attn: JAGS-DDL, Charlottesville, VA 22903-1781. Officer Administrative Eliminations-A System in Disrepair Mdor D. Ben Tesdahl Administrative Law Division, OTJAGPI Introduction Officer administrative eliminations are governed by army Regulation (AR) 635-100,1 as supplemented by the resignation provisions of AR Although officer eliminations occur less frequently than enlisted elimina tions, they tend to be high-visibility cases and often involve field grade officers with many years of service.

7 Therefore, the procedures outlined in the above regula tions must be thoroughly understood by all judge advo cates, especially those serving as board recorders, legal advisers, defense counsel, staff judge advocates, or administrative law attorneys reviewing elimination proceedings. Unfortunately, poor organization, sloppy draftsman ship, and numerous ambiguous provisions have resulted in elimination regulations that are extremely difficult to understand. In addition, overly generous due process provisions and numerous layers of administrative review have made the officer elimination system extremely slow and cumbersome. With the above problems in mind, this article will take a critical look at the officer elimination system,3 focusing primarily on the involuntary relief from active duty (REFXAD) and elimination provisions contained in AR r . 635-100, along with the related resignation provisions in AR 635-120.

8 First, the article will provide a brief over view of the officer elimination system. Second, the arti cle will focus on those areas where the elimination regulations are archaic, ambiguous, or incomplete. The article will suggest ways to deal with these problem areas when they arise in the field. Finally, the article will pro pose revisions to these regulations that could improve and greatly streamline the officer elimination system. Overview of the Officer Elimination System To assist those unfamiliar with officer eliminations, the following section will provide a general overview4 of the applicable regulations, the officer REFR4D proce dures, and the officer elimination procedures. The Applicable Regulations Historically, one of the biggest challenges facing a judge advocate involved in an officer elimination case was ensuring that he or she had a complete copy of the applicable regulations. For example, at one time AR 635-100 had twenty-seven changes incorporated into the basic regulation and twelve additional interim AR 635-120 was only slightly better, with sixteen changes incorporated into the basic text and two addi tional interim Now that these regulations have been published in UPDATE form, they should prove to be a much more useful reference tool.

9 Even with the republication of the above regulations, however, a few problems still exist. For example, the updated regulations were supposed to have all current changes incorporated into the main body of the text. The repealed paragraphs were to be deleted and the remaining paragraphs were to be renumbered accordingly. No sub stantive changes were supposed to be made. Neverthe less, at some point during the editing phase a number of words were changed or omitted and a number of para graph cross-references were not correctly renumbered. Perhaps the most glaring of these errors was the total omission of overweight as a ground for elimination.* Judge advocates in the field should realize that changes and omissions in the current UPDATE form of the reg ulations are merely administrative errors and are not the result of any conscious policy change. army Reg. 635-100,Personnel Separations: Officer Separations (1 May 1989)[hereinafter AR citations are to the above version, unless otherwise noted.]

10 * army Reg. 635-120,Personnel Separations:Officer Resignations and Discharges (1 May 1989)[hereinafterAR 635-1201. As used in this article, the term officer elimination system is intended lo encompass the relief from active duty (REFRAD)and elimination provisions in AR 635-100as well as the resignation in lieu of elimination and discharge in lieu of elimination provisions in AR tions for the Good of the Service under AR 635-120,chapter 5, are not included in this article. For a more detailed discussion of officer eliminations, see Heuer, Oficer Eliminations: A Defense Perspective,The army Lawyer, Aug. 1987,at above article was written prior to the 1988changes lo and 1989republicationof AR , its discussion of probationary and nonprobatlonary officer elimination procedures is somewhat outdated. JScr AR 635-100(C27,I Aug. 1982)(102,2 July 1988)(superseded). 6 See AR 635-120(8 Apr. 1968)( July 1988)(superseded).]