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January 2019
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ALCOHOLISM IN THE MILITARY.  “What do you do with a drunken sailor— or soldier or airman?”    In “12 Stepping the Military,” Nancy Olson summarizes the history of alcoholic treatment in the military.  According to the GAO, DOD had no reliable historical data showing the extent of alcoholism in the armed forces.

Commanders generally choose between four unpalatable alternatives

·         leave the alcoholic alone

·         transfer him/her

·         counseling/treatment

·         punishment

A Pearl Harbor survivor named Sgt. Bill Swegan apparently started a one-man operation at Mitchel Field, NY in 1948.  In1953, he transferred to Lackland AFB with the title of psychiatric social worker.  

By the end of the 1950s, however, the military withdrew all support from alcohol treatment programs.

The story then moves to late 1969, where the Navy attempted an alcohol rehab program at Long Beach, California.  It was judged a success.  However, some individuals vehemently opposed viewing alcoholism as an illness.  Among those who sought treatment at the Navy’s Long Beach program – Billy Carter, the president’s brother; and Betty Ford. 

A LIBERAL PERSPECTIVE.  How many people go bankrupt every year because of medical bills?  A liberal friend responds:

Great Britain








United States

GRAND TOTAL:   643, 000

LAWYER’S CORNER.  Jeffrey Toobin, CNN legal analyst and New Yorker contributor, spoke at Stanford Law School on the subject of the Supreme Court in the” age of Trump.”   

A reporter summarized Toobin’s views as follows:

One of the greatest political events of our lifetime is the evolution of the Republican Party since the 1970s.  Moderate and liberal Republicans were formerly well represented, along with conservatives, in all branches of public life; that was reflected in the court.   That Republican Party is gone –the evolution of the court will again reflect the political composition of the country. 

Placing a new appointee on the court has become contentious, taking on strong left/right partisanship.  This is a relatively recent development – Ruth Bader Ginsberg was confirmed with 90 votes.

Republicans much more than Democrats have been focused on a court reflecting their own views and values.  In the 70s, the Republican platform called for gun control, had no provision on abortion.   As Republican views developed on those issues, their advocates, focused more and more on composition of the courts as a specific vehicle to alter legislation and public policy.

Democrats, in contrast, did not especially focus on the courts in their conventions and campaigns or appeal to voters on that basis.

Evangelicals focused on these social issues and chose to set aside negative aspects of Trump’s values and behaviors – they sought transformation of the judiciary (which they are substantially getting, at lower court levels as well.)

In Justice Gorsuch’s first 15 votes, there is only one Justice with whom he has consistently voted – Clarence Thomas.  So the new judge’s conservative credentials have borne out, says Toobin.

What does this mean for the future?     Toobin predicts:

·         Roe v. Wade will be overturned, if not in the next months, at some point.  Many states have positioned themselves to pass legislation banning abortions, which will go into effect as soon as they perceive a court majority supporting this.  Passing such legislation ensures appeals to the Supreme Court and the opportunity to overturn.

·         Affirmative action – gone

·         Gay Rights – public acceptance of marriage might prevent its overturn, but the Bakery case and Hobby Lobby are models to expand the assertion of the religious rights of service providers or employers, exempting them from requirements now seen as civil rights

·         Expansion of gun rights beyond the Heller case

·         A permissive view toward campaign financing following Citizens United

·         Narrowing the bounds of regulatory agencies.  Justice Kavanaugh appears to support  limiting regulatory agencies to only areas directly covered by legislation.

The reporter concludes:

Despite these predictions, [Mr. Toobin ] remains optimistic that our institutions will hold and the country will get through whatever changes come without great social upheaval.  Despite the wide political divide, we are not on the verge of fascism or collapse.  Change will come through the electoral system.  The Resistance is focused on demonstrations, awareness and a great increase in women seeking office — a responsible effort within the political system.  We have not seen significant political violence beyond the Charlottesville events. He mentioned journalism, universities and churches as important institutions holding to the center.


NO MORE BREAD AND WATER PUNISHMENT.  Come 2019, junior sailors will have one less worry chasing them: no more bread and water punishments.

Beginning one January, skippers can no longer sentence NJP enlisted shipmates to three days in the ship’s brig solely on bread and water.

Bread and water had for decades been an arcane disciplinary tool at the disposal of commanding officers at sea. The non-judicial punishment potentially affected E-1 to E-3 sailors and embarked Marines.

NEW UCMJ PROVISIONS.  The Military Justice Act of 2016 makes some substantive changes to the UCMJ, including updating the ways the armed forces can prosecute sexual crimes, cyber-stalking, public corruption, credit card theft, and cruelty to animals.

IMPROPER COMMAND INFLUENCE?  President Trump has tweeted that he will review the ongoing case of an Army Green Beret charged with the premeditated murder of a Taliban bomb-maker in Afghanistan.

The tweet – referring to Major Mathew Golsteyn as a “U.S. Military hero” – may run afoul of the military’s prohibition on unlawful command influence.

Golsteyn and fellow elite soldiers captured the alleged bomb-maker while deployed in Afghanistan in 2010.   According to the  New York Times, they took the man back to their operating base; fearing he would identify a Taliban informant, they took him off base, shot him, and buried the body.

A year later, Golsteyn admitted the killing while applying to the CIA. The Army investigated, eventually stripping his combat award and Special Forces tab, and reprimanded him, the Times reported.

The Army opened a new investigation and charged Golsteyn with murder.


Four petty officers accused of sex crimes with a child in the barracks of a Washington state base have received non-judicial punishment and are being kicked out of the Navy, officials confirmed this week.

The four avoided court-martial because an officer reviewing the case found insufficient evidence to take the charges to trial.  According to a command spokesman, “there was insufficient evidence that they were aware the victim was underage.”

LAWYER’S CORNER.  In a recent blog, we posed the question of what would happen if explorers found a small group of living Neanderthals.  Now, one of them has allegedly murdered another. What should happen?

Here is one attorney’s response:

Under U.S. law the intellectually disabled are not eligible for the death penalty.  Except for Florida and Texas, he would probably be found ineligible for the death penalty. In most of the rest of the world, it would not be an issue.

With regard to the underlying conviction, who had the jurisdiction to try him?  Who could testify? If he could not communicate with his attorney, how could he have effective assistance of counsel?  How could he assist in his own defense?

And another response:

Who sits on the jury? Isn’t the Neanderthal man entitled to a jury of his peers? 

Also, what is our historical record many years ago, dealing with crimes committed by indigenous Americans?   What about individuals in decidedly different cultures – e.g., acquired territories such as American Samoa?


[S]EXTORTION.    Service members have been duped into sending money to male prisoners posing as women on dating apps.

Agents from the Naval Criminal Investigative Service have served warrants for a ring victimizing hundreds of service members since 2015.

“Operation Surprise Party” uncovered a prisoner-led extortion, money laundering and wire fraud scheme that “cost 442 service members from the Army, Navy, Air Force and Marine Corps from across the United States more than $560,000 in financial loss,” an  NCIS release said.

Army officials and South Carolina law enforcement revealed in October that prison inmates – posing on dating applications as women in the same age bracket as the targeted soldier – were conning service members into wiring cash following nude photo exchanges.

After swapping photos, the unsuspecting soldier would receive a text from another phone number, where another prisoner would pose as the fictional girl’s father or law enforcement official.

CONNECTICUT AND THE VA.  For +/- 500,000 veterans, leaving the military with an other than honorable discharge typically ends benefits and VA health care.   This is often true even when their problems involved in PTSD.  But last month, Connecticut opened state VA resources to such vets, according to press reports.

Comment:  We are unclear how Connecticut achieved this laudable goal‘s eligibility should turn on Federal – not state – standards.


USAF BEARD WAIVER….   The Air Force has granted a religious accommodation beard waiver to a Muslim airman, making him the first airman so treated.  SSgt.  Abdul Rahman Gaitan, Travis AFB, California, received the exemption.  Raised as a Catholic, he developed an interest in the Muslim faith while stationed in Turkey.

… ARMY’S NEW POLICY ON ACCOMMODATION.  Meanwhile, a new Army policy OK’s soldiers wearing hijabs, turbans and religious beards.   Observant Sikhs and conservative Muslims may wear religious head coverings and beards, thanks to a directive that updates Army grooming and appearance regulations.

… WHILE  MARINES SEEK GENDER NEUTRALITY.  In a push to be more gender-neutral, the Marine Corps is removing the term PREG from fitness reports for pregnant Marines.
GRADE CREEP?   The Navy’s admiral-to-ship ratio, then and now?  According to the publication Task & Purpose, in 1944 there were 256 flag officers for 6,084 ships; today there are 359 flags for 280 ships.

PINKS AND GREENS.  Formerly known as the “pinks and greens,” the World War II-era officers uniform could go Army-wide as soon as 2020, according to a release that was posted  to the Army’s website.

“The current Army Blues Uniform will return to being a formal dress uniform, while the Army Greens will become the everyday business-wear uniform for all soldiers,” the release said.

LAWYER’S CORNER.  Suppose that explorers come across a small group of living Neanderthals.  They remain “primitive,” echoing what archaeologists surmise about their culture.  Under a United Nations mandate, these Neanderthals are protected.   However, there appears to be a clear case of murder in their small colony.

The prosecutor asks for the death penalty.

The defense counters that Neanderthals are a distinct species and should not be measured by Homo sapiens standards.

What result?

PURELY PERSONAL.  A favorite uncle comments that you were old when…

…..  Your sweetie says, “Let’s go upstairs and make love,” and your answer is “Honey, I can’t do both!”

…..  Friends compliment you on your new alligator shoes and you’re barefoot.

….A sexy woman catches your fancy and your pacemaker opens the garage door.

…..  You don’t care where your spouse goes, just as long as you don’t have to go along.

….  You are cautioned to slow down by the doctor instead of

by the police.

….. An “all-nighter” means not getting up to go to the bathroom.




LEADERSHIP Author Doris Kearns Goodwin has just published “Leadership In Turbulent Times.” The title is said to echo a Latin saying that anyone can navigate when the sea is calm.  Only able sea captains — and good leaders — perform well in tough times. She focuses on Theodore and Franklin Roosevelt, Abraham Lincoln, and Lyndon Johnson.


VOTING RIGHTS. The Washington Post reports that approximately 1.7 million felons are not allowed to vote in Florida – representing about a fifth of possible black voters.


NEVER HILLARY?  Ken Starr, surely an insider – has written a memoir of the Clinton/Lewinsky investigation.  He has harsh words for Hillary Clinton:  “No matter the subject, Hillary was… smug and dismissive.  Her brilliant personality was evident in all her interactions… There were two Hillarys.    Super smart, articulate policy-wonk Hillary, private, mean streak, vulgar Hillary.”


CAPITALISM AND INEQUALITY?   Katherine S. Newman is a professor of sociology at the University of Massachusetts.   She has authored a new book on whether capitalism can survive.    One of her main points: The US now is experiencing rising rates of inequality, with the favored top 1 % gaining from engineered policy changes, sharply tilted tax benefits, a froze minimum wage, and constraints on union organizing.

STAND TALL   From a “how to do it book” on presenting a strong personality:

  • Smile – but do it slowly, which lends credibility
  • Maintain eye contact
  • Never take your eyes off their face; if you must look away, do it slowly
  • Make a new acquaintance feel they are truly important
  • Imagine the individual as a long lost pal


A HISTORICAL NOTE   Author Thomas Cahill’s interesting “Heretics and Heroes” lists an interesting claim about reformer Martin Luther.   Supposedly, his version of the Bible in German cites St. Paul as authority for the concept that Christians are saved solely by the redemption of Christ – “by faith alone.”  Cahill comments that nowhere in earlier translations does the word “alone” appear.



THIS REALLY HAPPENED IN ALASKA A FEW YEARS BACK.  A young airman was disrespectful towards his sergeant.  When the Article 125 specification came to the JAG shop for legal review, we could not have improved on – or better visualized – what had happened:

… X, at Eielson Air Force Base Alaska, was disrespectful in deportment toward M Sgt Y, who was then in the execution of his office, by raising his middle finger heavenward in a gesture of contempt.


CANCER.   Author Barbara standards, citing international studies showing that mammograms and not reduce mortality from breast cancer – but may even expose women unnecessarily cancer-causing levels of radiation.

WHITE SUPREMACY.   The Soutehern Poverty Law Center records 9548 groups operating in the United States – from white nationalists to neo-Nazi, anti-Muslim, anti- LGBT.


WORD MAGIC? Alexandra Petri  shows how words can be transformed.   Regarding the Kavanaugh hearing:     he made a mistake… People make mistakes… Mistakes were made

it did not happen… But if it happened, it would not be released to wrong


RURAL DENTISTS.  The Washington Capitals Outlook suggests that about 43% of rural Americans lack access to dental care.

HONORING DR. KING. In san diego, a street was named for dr. Martin luther king in the late 1980s – later reverted to its old name of market street after nearly 60, 000 petitioner’s the issue on the ballot.

S ABILITY. “Too often… We enjoy the comfort of opinion without the discomfort of  thought”   John F. Kennedy



  •  Adam and Eve were probably the first people not read the Apple and conditions
  • Too hot changing the sign.     Sin, bad. Jesus, good. Details inside
  • Be the kind of person your pet thinks you are
  • Honk if you love Jesus, while driving if you want to meet him soon
  • Love everybody – I’ll sort them out later – God
  • Tweet others as you would like to be tweeted
  • Forgive your enemies – it really messes with their heads
  • Careful!! Jesus is watching – but our local police have radar

Xmas Eve

TEACHING TOLERANCE.  The Southern Poverty Law Center has created a program designed to help children  separate fact/fiction on the Internet; the program director aims to convey “the ability to be fluent, savvy, and safe online.”


WHERE ARE US TROOPS?  A recent Time Magazine article reveals that approximately 16 percent of total US armed forces strength is in Europe; and – surprisingly – 18% in Africa!


GUNS. We pass without comment a statistic that, on a recent record-breaking day, over 203,000 Americans applied for gun permits.


BASIC PHYSICS?  Jeff Goodell has written THE WATER WILL COME, expressing his concerns over climate changes.  He argues basic physics: Warm air holds more water vapor than cold air.  As result, there’s more evaporation and resulting drought as the planet warms.    He claims that Hurricane Harvey produced the greatest rainfall in American history.  Meanwhile, he comments, Greenland and Antarctic are melting, returning that water back to the oceans.


LAWYER’S CORNER.   The Champion Magazine September/October 2017 has an excellent article on admitting emails into evidence. Plenty of material for thought as to theories of admissibility – business records, present sense impression, excited utterance, and the residual exception.   Good material on authentication completes the article.

The same issue has good advice on how to represent medical professionals in criminal cases, civil lawsuits, licensing board matters, and the loss of credentialing

GOLDEN OLDIES.  Years ago, during the 1984 Panama Canal treaty negotiations, a play was staged in the Republic.   An assertive Panamanian government sought to put “Uncle Sam” on trial for the supposed “rape” of the young nation.  Uncle Sam – a wily character, according to his detractors – raised the expected defense:   Panama had consented.    In this story, the wise Panamanian judges refuse to buy that argument; in those early days, they reasoned, Panama was a young woman who was underage; she was unable to consent to the lecherous Uncle Sam.

INTERNMENT.    Most Americans know about the internment of American Asians in World War II, particularly in California.  Not so well known is how England concurrently interned about 4,000 people of Italian origin amid general suspicion of their loyalties.  Most were sent to the Isle of Man.

Among them was the father of actor Tom Conti.  The senior Conti had been in the Italian army in World War I.  After the war, he settled near Glasgow, Scotland as a barber and ladies’ hairdresser.  He married a Scottish woman called Maisie    He hated Mussolini regime and was astonished – after 20 years in Britain – to be considered a potential fifth columnist.

Churchill apparently uttered the phrase “collar the lot” that summer- – a call for all enemy aliens in Britain to be locked up.  Invasion seemed imminent and Churchill was taking no chances.

In the following months, about 30,000 Germans and Austrians – including Jews who had fled the Nazis — were arrested. Also detained were about 4,000 Italians, most of whom, like the senior Conti, were loyal to the allies.

Actor Conti relates one story of interrogation – that of his godfather.  The British officer in charge said: “We know that you have two sons; we’ve found one.  You must tell us where the other is.  Immediately!”

The response: “Of course, I tell you.  He’s in the Royal Air Force.”



Article 93 prohibits cruelty and maltreatment of those “subject to his orders.”

The UCMJ generally requires an individual to obey lawful orders of his/her superiors.  But who is a superior?   The highest military court has selected a narrow interpretation.

In US v. Curry, a yeoman first-class was convicted of oppressing a female petty officer — junior to him only in rank — by suggesting she should give him a body massage.   Curry’s conviction was set aside – the victim was NOT subject to his orders despite the fact that he slightly outranked her.  She was under no duty to obey his orders; and he lacked authority over her and could not order her to do anything.   See US v. Curry, CMR LEXIS 1144, 882 – 0719 R N.M.C.M.R. 31 July 1991 – unpublished.

In  US v. Dickey, 20 CMR 486 (ABR 1956), the accused was commander of an army unit in Korea; he was responsible for the general supervision of certain Korean nationals.   Dickey was convicted of Article 93 maltreatment for instructing subordinates to have their guard dogs attack a victim without justification.   The Army board [predecessor to the Army Court of Criminal Appeals] limited Article 93 to persons in a command capacity, prohibiting them from maltreating those under their supervision.   Dickey was not “in command” over the Korean national; ergo, this was not maltreatment under Article 93.

See also the ARMY LAWYER for July 1995.  Major William T. Barro authored Sexual Harassment and the Uniform Code of Military Justice, A Primer for the Military Justice Practitioner.   He states that, based on the precedents, the rule of lenity applies.  This is a rule of statutory construction which provides that – in cases of ambiguity and where reasonable minds can differ as to the meaning — the phrase in question should be given the interpretation favoring the criminal accused.

Addressing Article 93 directly, the author concludes:

Application of the rule to this case would seem to limit the meaning of “subject to his orders” as contained in article 93, UC MJ, to those individuals supervised in some direct way by the accused [emphasis added].




MISSING CHILDREN.  Immigrant children from Latin America are in the news headlines lately.  But Rene Denfeld reminds us that an astounding 61,000 foster children in the US annually come up “missing.”

HOW TO ARGUE.  Author Kathy Cramer reminds liberal readers that arguing with political opponents may be a fruitless task.   0n the other side are populists –their views are not merely those of President Trump but, rather, represent a sincere electorate that sees the system as badly broken.

GO NAVY!  Dwayne Day reports that the modern GPS system was greatly forwarded by the Navy’s Transit Navigation Satellites, the first step towards personal GPS a few decades later.

A BORING PRESIDENT?   Former Sec Def Donald Rumsfeld honors the presidency of Gerald Ford.   It was Democrat Tip O’Neill who said “God has been good to America, especially during difficult times.  At  the time of the Civil War, He gave us Abraham Lincoln.  At the time of Watergate, he gave us Gerald Ford.”   Rumsfeld’s appreciation cites the late president’s kindness, Midwestern politeness, and willingness to put the interests of the Nation ahead of his own.

BREAST CANCER?  Author Barbara Ehrenreich challenges current beliefs.  She claims that repeated international studies indicate that mammograms have not reduced mortality from breast cancer but – to the contrary – exposed women unnecessarily to cancer-causing levels of radiation.

MACHINE VERSUS HUMAN. A Washington Post article on artificial intelligence points out that “thinking” machines are already writing financial news, sports stories, and weather reports!

TRIAL AND ERROR.  A Washington Post Outlook article resurfaces some “fake science.”  A 2013 study at Northwestern University’s Medill Justice Project reveals that the now-discredited shaken baby syndrome played a role in about 3,000 convictions.  The article faults appellate courts which have made it extremely difficult for those convicted by “bad science” to win a new trial.

Another target is bite mark analysis – the claim that there was scientific validity to dentists claiming they could match bite marks on a victim to the teeth of a defendant.  By 2004, 37 US jurisdictions had accepted this.  But in the 1990s, DNA analysis began to show that bite mark testing was “junk science” and hardly reliable.

4 GREAT QUESTIONS.  Mystery writer Louise Penny in Still Lives has her protagonist-detective mentor a young police officer with four sentences everyone should employ:

  • I’m sorry
  • I don’t know
  • I need help
  • I forget


LAWYER’S CORNER.  We understand that military attorneys dealing with ROTC have come against an interesting dilemma.  Suppose a college student signs on – in good faith – for a ROTC specialty open to males only.  That cadet later elects to have a “change operation” in which he becomes a she.   Should the individual lose the scholarship?