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Jack of All Trades, Master of One:

 

Why Military Justice Experts Need Experience in Other Areas of Military Law

 
 
   
   
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(Credit: istockphoto.com/Iryna Chubarova)

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Expertise and Versatility Can Be Mutually Supporting

In 2017, Lieutenant General (LTG) Charles N. Pede, The Judge Advocate General (TJAG) of the Army, announced a shift in the Army Judge Advocate General’s Corps (JAG Corps) career model to deliberately develop expertise in one or two particular areas.1 At the same time, the JAG Corps officially eliminated the concept of the “broadly skilled” judge advocate (JA) as the ideal career path, replacing it with a career model that places a premium on balancing expertise and versatility.2 While the “expert and versatile” model applies to all the JAG Corps legal functions, the renewed emphasis on expertise has particular significance for the practice of military justice. The military justice system’s recent evolution demanded this shift away from the generalist “broadly skilled” model to address concerns pertaining to litigation inexperience, career progression, and victim care throughout the court-martial process.

The shift away from “broadly skilled” to “expert and versatile” provides an excellent opportunity for the JAG Corps to build military justice expertise, as well as reinforce within the JAG Corps culture that expertise and versatility are not mutually exclusive. Military justice experts should certainly spend the majority of their careers in military justice assignments, yet competence in other areas deepens their expertise by refining legal knowledge, enhancing advocacy, and developing the leadership abilities necessary to develop the next generation of military justice experts. Experience in other assignments and legal functions ultimately makes judge advocates (JAs) better military justice practitioners—both in the courtroom and in the office. The JAG Corps should deliberately and progressively cultivate military justice expertise without fragmenting the Corps by creating a cohort of officers who focus exclusively on military justice. To meet these goals, JAG Corps personnel policies—as well as informal mentorship and messaging—should facilitate both expertise and versatility by encouraging military justice practitioners to occasionally serve in positions outside of military justice. Individual JAs striving to build military justice expertise should not be reticent about accepting positions in other legal disciplines. The past six years have seen incredible changes in military justice.3 Throughout this period of change, many expressed concern that JAG Corps military justice practitioners4 and their supervisors do not have sufficient experience to litigate felony-level trials.5 Congress shared this concern and, in 2016, directed each military service to “carry out a pilot program to assess the feasibility and advisability” of establishing a military justice specialization track.6

In the authors’ experience, many junior JAs who seek a career “specializing” in military justice see the ideal career path as one that stays within the field. For example, one justice career path might include serving as a trial counsel, then defense counsel or appellate counsel, then a special victim prosecutor, and—following promotion to major—assignments as senior defense counsel, professor of criminal law, service in the criminal law policy division, or the U.S. Army Legal Service Agency litigation division, before culminating with assignment as a military judge. While this is certainly a path toward building military justice expertise, it is not necessarily the optimal one.

Historically, JAG Corps senior leadership emphasized the benefits of generalization and fungible skills to the Army and the JAG Corps as a whole, as opposed to the individual JA. The result was a cautionary inference that “broadly skilled” was the ideal way to remain competitive for career advancement.7 Accordingly, the “broadly skilled” model was controversial within the Corps; while some saw it as a positive feature of a JAG Corps career, others expressed frustration with the barriers, perceived or actual, to specializing in a preferred practice area.8 By explicitly encouraging expertise, the JAG Corps addressed part of that frustration. But those who saw vindication of their criticisms of the “broadly skilled” model in TJAG’s current guidance would do well to notice the second part of his expectations—that JAs, while experts in a particular field, must maintain competence in all areas.9 The JAG Corps continues—appropriately—to promote versatility. Therefore, the JAG Corps should emphasize the mutually supporting relationship between the two concepts, especially in its core statutory mission of military justice.

The Services’ Approach to Specialization

Each of the services has its own system to identify and manage JAs assigned to practice military justice. The Air Force takes a generalist approach, much like that of the Army’s prior model of the “broadly skilled judge advocate.”10 The Coast Guard has fewer than 200 active duty attorneys, at least fifty of whom serve in non-attorney roles. The structure of the Coast Guard does not allow for specializations. Due to the small number of practicing attorneys, the Coast Guard policy assigns only a handful of officers as defense counsel at a centralized location; it relies on its Memorandum of Understanding with the Navy to provide additional support.11 The Navy and Marine Corps have established formal military justice specialization tracks.

The Navy and Marine Corps systems provide a useful basis for comparison; like the Army, they emphasize both expertise and versatility. While the Navy and Marine Corps have formalized iterative systems, the Army provides a more flexible framework centered around a progressive system of proficiency codes. The Navy and, to a lesser extent, the Marine Corps, explicitly emphasize the need for versatility. Despite the dual emphasis on both versatility and expertise, the Army model does not link the two.

The Navy and Marine Corps Programs

The Navy and Marine Corps build their military justice communities differently. The Navy has created the Military Justice Litigation Qualification (MJLQ) designation which feeds the Military Justice Litigation Career Track.12 The MJLQ allows JAs to hold qualifications as Specialist I, Specialist II, and Expert.13 At each level, JAs who have the requisite experience and time in service may apply to the MJLQ Board—which is held on a yearly basis.14 Ordinarily, JAs become eligible for each level after four (Specialist I), ten (Specialist II), and sixteen (Expert) years of active duty, provided they meet additional requirements.15 If the Board grants an officer a designation, they must meet the qualifications for the next level within seven years, or they will be considered “inactive” and must reapply for the previously held designation.16

In line with these qualifications, the Navy has designated MJLQ-required billets.17 These billets necessitate a certain level of military justice experience, and MJLQ JAs will primarily be detailed to such billets.18 However, despite the military justice experience required to fill the designated billets, the Navy recognizes that all JAs must have a “familiarity with the broader mission of the Navy.”19 These MJLQ JAs are explicitly “encouraged to experience the wide variety of naval experiences that contribute to the broad understanding of the duties of JAs, and to seek out detailing to non-litigation billets even after receiving an MJLQ designation.”20 Experience in other legal functions is beneficial for the Navy and individual JAs; Navy policy recognizes this.

The Marine Corps’s approach differs slightly from that of the Navy. In the Marine Corps, JAs are considered line officers—they can fill billets requiring a JA or any free billet.21 They also compete with all officers for promotion, schools, and command.22 This framework makes it more difficult to carve out a military justice track with the same specificity as the Navy. However, the Marine Corps acknowledges the need to grow experts in military justice; certain jobs require them.23

To assure those specialists are available to fill certain assignments, the Marine Corps sends JAs to The Army’s Judge Advocate General’s Legal Center and School (TJAGLCS) to obtain an LL.M. in Military Law with a specialization in Military Justice.24 A competitive board process selects senior captain JAs who have already served in several legal functions during their time as a captain.25 Once a Marine JA receives an LL.M. in Military Law with a specialization in Military Justice, they receive a new Primary Military Occupational Specialty (MOS) code and may be assigned to the properly coded billets.26 This creates a de facto military justice track; however, those individuals are expected to remain versatile Marine officers.27

The Army Approach: Skill Identifiers and Redesigned Organization for Prosecutors

The Army approach has never been as rigidly structured as the Navy or Marine Corps. But over the last decade, the Army has embraced—to varying degrees—the concept of specialization. Since 2008, the Army has used a system of Military Justice Additional Skill Identifiers (ASIs), which provide helpful context for assignment managers.28 In 2019, the Army replaced the ASI system with a system of Professional Development Proficiency Codes (PDPCs).29 However, the JAG Corps has never required any particular level ASI or PDPC as a prerequisite for any position—it is theoretically possible, for example, for a division chief of military justice to have never tried a case.

In January 2018, the JAG Corps implemented its Military Justice Redesign Pilot Program (MJRPP) to ensure the best use of its resources and compliance with Congressional mandates.30 In July 2019, following a period of evaluation, the pilot program became the JAG Corps standard as the Military Justice Redesign Program (MJRP).31 The duties formerly performed by trial counsel are now diffused between full-time prosecutors and command military justice advisors.32 The preferred model further divides prosecutors between special victim cases and general crimes cases.33

The MJRP gives installation staff judge advocates flexibility to implement the program’s tenets.34 However, from its initiation, the basic division of labor has remained the same. Military justice advisors bear primary responsibility for providing advice to commanders and brigade staff on administrative actions, separations, policies, and investigations.35 The general crimes and special victim trial counsel, on the other hand, exclusively prosecute courts-martial.36 They are not assigned specific jurisdictions and take over cases from the relevant military justice advisor.37

Dividing attorney responsibilities in this way, at the lowest echelon, is only a first step toward building proficiency, and it does not significantly mitigate the risk of assigning new counsel to litigation billets. The JAG Corps assumes risk each time it assigns a new captain to a trial counsel billet. The JAG Corps assumes even more risk by assigning a captain—or first lieutenant—with no military justice experience to Trial Defense Service (TDS).38 Even if the JAG Corps does away with the expectation that nearly every JA will get a “turn” to be a trial counsel, there will always be some level of residual risk. But this risk is minimal and greatly mitigated with the right people leading those captains. When it comes to the mid-level leaders of military justice—the chiefs of justice, senior trial counsel, senior defense counsel, and special victim prosecutors—the JAG Corps should not continue to assume the level of risk that it has in the past. It should not be “luck of the draw as to whether experienced litigators occup[y] those positions.”39

The Army JAG Corps’s current posture of “no single assignment is a prerequisite for…future assignments”40 is counterproductive toward building expertise. By creating an entirely new MOS for military justice and restricting certain key positions to those with such an MOS, the Marine Corps goes further than any other service.41 The Army need not adopt such a rigid model. Between the MJRP and the PDPC system, the Army has the tools in place to identify and cultivate military justice experience; but superior performance as a litigator should be formalized as a presumptive requirement for litigation leadership.42 The Judge Advocate General recently announced that “possession of skill identifiers…will now be a significant factor and part of our assignment discussions.”43 A more formal step to ensure effective litigation experience may be coding certain military justice positions, particularly leadership and instructor positions, with a certain level of skill identifier or proficiency code to ensure sufficient experience for these positions.44

Even with these measures to generate experience, the collective MJRP and PDPC system still has no mechanism to promote versatility in other legal functions. Meanwhile, while encouraging expertise, current guidance continues to promote versatility—primarily for its benefit to the JAG Corps as a whole.

We need judge advocates who are expert in one or two practice areas and competent in all others. Make no mistake, you need to be ready to practice justice one day and sprint to a targeting cell in country Y the next day. There is simply no room for a single purpose tool for a modern Army.45

This perpetuates the cultural gap that existed with the “broadly skilled” paradigm. The JAG Corps has struggled to explain how broad legal competence contributes to individual military justice expertise, both to political leadership and to its own members. A military justice practitioner who eschews the other legal functions (i.e., administrative and civil law, contract and fiscal law, Soldier and Family legal services, national security law) and assignments to generalist leadership positions will ultimately be less effective not only as a JA in general, but specifically as a litigator and litigation leader.

Exposure to Other Areas of Military Law Makes Better Military Justice Practitioners

The JAG Corps’s military justice experts benefit from full, tour-length assignments in non-litigation billets. These assignments can be as diverse as a national security law attorney at a division or corps, an attorney in the administrative law policy division of the Office of The Judge Advocate General, an observer-controller-trainer, an advisor in a contracting brigade, or countless others.

To give just a few examples: the Army’s policy concerning family support is punitive and regularly enforced through the Uniform Code of Military Justice (UCMJ).46 Few attorneys—indeed few people in the Army—understand the Army’s policy concerning family support better than legal assistance attorneys; this experience aids the trial counsel who drafts the charge alleging a family support violation and the defense counsel who defends his client against it. A JA who is fully integrated with a combat unit and has spent months practicing national security law will be able to speak and think like the clients, witnesses, panel members, and convening authorities that they will encounter in the military justice process. A chief of justice who understands contract law comprehends the process and reasons for an expert witness to register through the System for Awards Management, why a sole-source contract is acceptable,47 and why giving the expert a “read ahead” before the contract is awarded violates fiscal policy.48 Although courts-martial have jurisdiction to try violations of the law of war,49 the United States prefers to use the punitive articles of the UCMJ to prosecute law of war violations.50 Therefore, command legal advisors and prosecutors must understand where and how the law of war, rules of engagement, and punitive articles of the UCMJ intersect.

Particularly for military justice leaders—chiefs of justice, special victim prosecutors, senior defense counsel, senior trial counsel, and even military judges—understanding of complex administrative law is vital. In-depth understanding of the interplay between the regulations governing unfavorable information,51 suspension of favorable personnel action,52 personnel evaluations,53 and officer eliminations54 is essential for the lawyers who advise the individual under investigation and the lawyers advising the command administering those processes—none of which can be found in the Manual for Courts-Martial. With increasing regularity, medical issues intersect with the timing of adverse administrative actions. To assess the best course of action, counsel must understand the Integrated Disability Evaluation System.55 A proficient attorney in a military justice billet can, of course, research these issues and produce a satisfactory result; after all, learning through immersive administrative law experience enhances the ability to thoroughly and efficiently spot issues, synthesize multiple concepts, and provide a comprehensive solution.

To provide another example, consider senior leader misconduct. Criminal investigators rarely investigate allegations of misconduct by senior leaders. Typically, these are either local command administrative investigations or investigations by the Inspector General (IG).56 Allegations of senior leader misconduct frequently touch on a variety of issues, including the standards of conduct for federal employees and the Department of Defense Joint Ethics Regulation (JER).57 Depending on the jurisdiction, allegations of senior leader misconduct and JER violations are relatively uncommon, and a military justice practitioner is unlikely to build familiarity with the myriad of unique and detailed aspects of these standards in a tour as a trial or defense counsel. Because there are so many different, yet overlapping, regulations applicable to these investigations, it is important to have a sufficient foundation in all of them to spot issues and determine whether an ethical violation has actually occurred. When a senior officer walks into a TDS office under IG investigation, the senior defense counsel or regional defense counsel is infinitely more prepared to advise this client if they have served as an ethics counselor.

It is not physically possible, nor optimal, for a military justice expert to serve in every type of assignment available in the JAG Corps. But neither is it healthy to balkanize the JAG Corps, creating a cabal of officers who solely practice military justice. Duties as ethics counselors, national security law attorneys, administrative law attorneys, or contract and fiscal law attorneys help leaven the JAG Corps’s pool of military justice expertise with necessary breadth and diversity. This knowledge is essential for when those military justice experts serve as command legal advisors at the brigade, division, corps, and installation levels. Furthermore, service in those command advisory positions in turn builds that diversity of experience as well as the leadership skills necessary to excel when they return to military justice leadership and litigation billets.

Service in Command Advisory and Leadership Positions Makes Better Military Justice Practitioners

Assignment as a command advisor is absolutely critical to the professional development of any military justice practitioner—particularly those who entered the JAG Corps without any prior military experience. Although these assignments typically do not involve court appearances or litigation, they are nonetheless instrumental in developing JAs who will later become chiefs of military justice, senior defense counsel, senior trial counsel, special victim prosecutors, and military judges. The lessons learned while serving as a command advisor directly translate into those positions, thereby resulting in a higher quality of JAG Corps litigation. In fact, absent that command advisor time, JAs will never learn many of those valuable lessons. The MJRP exacerbates this deficiency because it deliberately removes military justice practitioners from individual brigades and, in the case of prosecutors, drastically reduces their interactions with Army commanders and units.58 As the JAG Corps implements the MJRP, it will become even more critical for military justice experts to gain this experience through service in command advisory billets.

For example, brigade judge advocates (BJAs) are fully integrated into the brigade staff and the unit’s daily battle rhythm.59 They regularly attend—and often brief during—command and staff briefings, battle updates, and other meetings with brigade leadership. Further, they frequently work with other staff sections on various brigade projects and initiatives, thereby exposing them to the many other functional areas of the Army.60 Through these interactions, JAs gain a deeper understanding of how the Army works, how decisions are made through the Military Decision Making Process,61 and how different areas of expertise are utilized in order to accomplish the mission.

The personnel with whom a BJA must work are representative of the personnel who participate in a court-martial. Bailiffs, escorts, many witnesses, and—most importantly—panel members all come from Army units. Understanding who these people are, what they do, and how they process information to make decisions helps JAs prepare a more effective and persuasive presentation of their case. A focused and precise prosecution presented in a manner the panel can accept and understand is much more likely to produce the targeted result. Being immersed in a brigade also equips JAs with the knowledge to better relate to court-martial witnesses, know what questions to ask, and more clearly present their testimony at trial.

Second, BJAs typically have a weekly meeting with their brigade commander. This one-on-one interaction is not only useful to discuss current investigations, legal trends, pending courts-martial, disposition decisions, and other legal issues facing the unit, but it also offers JAs the opportunity to learn how senior commanders think and process information. Brigade judge advocates are exposed to several battalion and company-level commanders as well. Senior leaders typically compose court-martial panels62 to include past and present commanders; this added insight helps JAs better understand their audience at courts-martial, thereby enabling them to be more persuasive in presenting and arguing their case at trial. Brigade judge advocate experience helps litigators speak the same language as their audience when presenting and arguing a case at trial.

Third, the substantive legal tasks that BJAs complete provide further benefit to a military justice practitioner. Indeed, for mid-level justice leaders—principally chiefs of justice and senior defense counsel—there is no position better for quickly and thoroughly building competence in most of the JAG Corps’s other legal functions.63 Specifically, BJAs spend a considerable amount of their time advising or reviewing Army Regulation 15-6 investigations, commander’s inquiries, and financial liability investigations of property loss. While these fact-finding measures are administrative in nature, they often lead to an adverse administrative action against a service member. Military justice practitioners advise whether a particular case should proceed to court-martial or whether an alternative disposition is appropriate. Case analysis is a crucial part of a litigator’s job; knowing all of the options available to the commander and the second- and third-order effects of their decision is therefore critical in advising court-martial convening authorities on how to dispose of a particular case.64

Fourth, BJAs function as the officer-in-charge of the brigade legal section.65 As a supervisor to multiple individuals of various ranks and expertise, the BJA must lead effectively to keep cases moving and ensure timely completion of all legal tasks and responsibilities, all while bolstering the morale, enthusiasm, and professional development of all those assigned to the legal section. This provides an invaluable opportunity for JAs to develop, implement, and execute their own leadership philosophy.66 Not only does this experience help JAs become better leaders and supervisors, but it also provides them a small glimpse into common issues that arise in courts-martial. For example, the failure of leadership is a frequently presented theory by both prosecutors—when the accused has been charged with such—and defense counsel—in order to explain why the accused acted in a particular way. The BJA experience enables JAs to better understand the challenges of leadership and articulate and present these themes at courts-martial.

While serving as a BJA is perhaps the most important non-litigation assignment for a military justice practitioner to complete at some point in their career, it is by no means the only one. In fact, those who have already served as a BJA and subsequently returned to the courtroom should later seek an additional non-litigation assignment; this could serve as a refresher in the overarching issues confronting the institutional Army. Irrespective of rank or time in service, a career criminal law practitioner should seek positions and opportunities outside of military justice; such experiences are critical to the development of court-martial knowledge, skill, and expertise.

“Specialization” Should Be Deliberate, Progressive, and Versatile

Within the constraints of the Army’s assignment management, evaluation, and promotion systems, the Army JAG Corps must find a way to continuously identify, develop, and maintain military justice talent. If properly implemented, the recent changes to JAG Corps policies—including the MJRP—can provide a way to build a “bench” of military justice experts. In the drive to shed the negative perceptions of the “broadly skilled” model, the JAG Corps must still consciously—and deliberately—ensure its military justice experts do not become so myopically focused on criminal litigation that they lose the cross-functional competence necessary both to practice criminal law and to develop the next generation of military justice experts. The JAG Corps needs to address three concerns: (1) identifying the right JAs to become military justice experts, (2) continually developing military justice expertise, and (3) adjusting the JAG Corps’s culture.

Identifying Military Justice Experts

Based on longstanding practice in the Army (at least unofficially) every JA captain, regardless of interest or capability, is expected to spend some time as a trial or defense counsel—most often as a trial counsel. Yet, the “broadly-skilled” model promoted the belief that too much time in those positions would be detrimental to career advancement. There was an unstated, Goldilocks-style, “just right” amount of military justice experience for every JA’s ideal career progression. The Army’s MJRP is at least a step toward acknowledging that not every JA can or should be a litigator. If the JAG Corps continues down this path, culture and expectations must change so that those JAs who have neither the aptitude nor the affinity for criminal litigation can still have successful careers if they excel in other aspects of military law.67 Positively, rotating fewer captains through litigation billets will allow each more time to gain a foundation of experience.68

Relatively junior captains will continue to try courts-martial.69 The military justice expert career path should focus on developing the senior trial counsel, special victim prosecutors, chiefs of justice, and senior defense counsel who will train, supervise, and mentor those junior litigators from among whom future justice specialists will be drawn. The JAG Corps acknowledges there is a subjective component to this decision and has implemented a talent-management system of “bench builders”—the functional proponents in the Office of The Judge Advocate General—and “talent scouts”—leaders throughout the JAG Corps—to identify and develop JAs with both interest and demonstrated expertise in a particular legal function.70 That identification process must recognize that litigation experience, while necessary, is not alone sufficient for military justice leaders and managers.71

Continually Developing Military Justice Experience While Adjusting the JAG Corps Culture

The first proposal to legislate a career litigation track contained a prohibition against “more than a total of four years total duty or assignments” outside of military justice.72 This reflects a begrudging nod to the reality of a military career in which diversity of assignments is unavoidable, but primarily exhibits a misinformed view that the only way to build military justice experts is to keep them solely in military justice positions.

As argued throughout this article, exceptional performance in military justice positions does not alone make the best career military justice specialists and leaders; this is primarily where even the new JAG Corps policies fall short. Policies that formalize requirements for experience in military justice only address part of the necessary conditions for expertise. The Navy career litigator track deliberately allows and encourages its participants to branch out.73 The current Army model, both the PDPC system and the MJRP, does not account for the benefits of versatility. This needs to change.

Despite shedding the moniker “broadly skilled,” the JAG Corps nonetheless reminds its officers that “[f]unctional expertise is not sole-discipline specialization, and as such developing expertise in a particular legal discipline does not guarantee exclusive utilization within that core competency.”74 On its face, it would seem that the guidance could not be any clearer, yet the JAG Corps continues to use cautionary language to promote versatility: “Officers with functional expertise must continue to seek diverse assignments of increasing responsibility, inside and outside of their area of expertise, to remain the most competitive for promotion, schooling, and assignments.”75 The JAG Corps policies and messaging still omit the fact that doing so also makes officers more competent within their area of functional expertise.76

Expertise certainly requires experience acquired through repetition. An officer who wants to become a better runner should follow a training program focused predominantly on running. But they should also seek to improve their overall strength and endurance, because doing so will ultimately make them a better runner. Similarly, the JAG Corps’s military justice experts should spend most, but not all, of their careers in military justice assignments. As the JAG Corps refines the PDPC system and implements the MJRP across the Army, JAG Corps leaders—particularly military justice leaders—must change the culture and views of those who see service in other legal functions as somewhere between distraction and detriment.77

The JAG Corps leadership can informally propagate this message through the Personnel, Plans, and Training Office, the Criminal Law Division, and the Criminal Law Department at TJAGLCS. Formally, the JAG Corps military justice career model must deliberately facilitate versatility through diverse assignments at both the captain and field grade levels.78 One simple solution would be adding “Brigade Judge Advocate” to the “Military Justice Opportunities” career model.79 Another may be requiring a modest amount of time spent in non-justice or command advisory positions as a prerequisite for successive PDPCs. This would reinforce the expectation of versatility and reassure criminal justice practitioners that serving in a command advisory position will not harm their prospects for future military justice assignments. Lastly, the JAG Corps should amend the current cautionary message80 and acknowledge the benefits of cross-functional versatility for all legal practitioners, including military justice experts.

Conclusion

It is possible to meet the intent of Congress and to develop more expertise in the area of military justice without formalizing a rigid construct that pigeon holes JAs into a specific legal function. Instead, for the Corps to remain flexible and versatile and build the next generation of JAs, JAs must occasionally step out of their comfort zones and out of the courtroom. This will allow them to see the greater Army function. “Our diversity makes us stronger, smarter, and more innovative, helping us better service the needs of our clients, our people, and our communities.”81 This sentiment rings as true for the Army as it does for any large corporation.

Versatility must not be subsumed by the quest for expertise. The JAG Corps will create the best military justice experts through a combination of deliberate progression in the military justice legal function and diverse experience elsewhere. The JAG Corps will avoid the pitfalls of the “broadly-skilled” paradigm when its career military justice practitioners see versatility as an asset, not an impediment. TAL

 


MAJ Borgnino is assigned as the Chief of Ethics for U.S. Army Reserve Command in Fort Bragg, North Carolina.

LTC Gilberg is assigned as a Special Victim Prosecutor in Fort Campbell, Kentucky.

MAJ Murdough is assigned as a Complex Litigation Attorney with the Trial Counsel Assistance Program in Fort Belvoir, Virginia.

MAJ Overgaard is assigned as the Chief of Military Justice for the 101st Airborne Division (Air Assault) in Fort Campbell, Kentucky.



The authors thank LTC Aimee Bateman, LTC Tiffany Pond, and MAJ Chadwick Brown for reviewing this article and suggesting improvements.

Notes

1. TJAG and DJAG Special Announcement 40-04: Announcement of Decisions on Strategic Initiatives 2 (20 Apr. 2018) [hereinafter Special Announcement 40-04].

2. Id. (“We will eliminate ‘broadly skilled.’”).

3. In addition to changing multiple procedural and evidentiary rules, every annual National Defense Authorization Act from 2013 through 2016 amended the statutory text of the Uniform Code of Military Justice (UCMJ). See, e.g., National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, §§ 1701-1705, 127 Stat. 672, 952-59 (2013) (codified at UCMJ arts. 6b, 32, 60(c), 43, 46(b), 56(b), 18(c)); Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 532, 128 Stat. 3292, 3366 (2014) (amending UCMJ art. 49); National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 531, 129 Stat. 726, 814 (2015) (amending UCMJ art. 6b); National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, Division E, 130 Stat. 2000, 2894-2968 (2016) (containing the Military Justice Act of 2016, which made major structural and substantive changes to the entire UCMJ).

4. For the purposes of this article, “military justice practitioners” refer to those who are directly and primarily involved in the litigation of courts-martial at the trial and appellate level, specifically trial counsel, trial defense counsel, special victim prosecutors, senior defense counsel, regional defense counsel, chiefs of military justice, appellate counsel, military judges, and appellate judges. However, a “military justice assignment” for career experts in military justice would also include professors of criminal law, the trial counsel assistance program, defense counsel assistance program, among others.

5. See, e.g., United States v. Mack, 2013 CCA LEXIS 1016, at *5 (A. Ct. Crim. App. 2013) (Pede, C.J., concurring) (expressing concern about a “‘blocking and tackling’ weakness among our [military justice] practitioners”); Cully Stimson, Latest Case of JAG Malpractice Shows Pressing Need for Reform, Daily Signal (Feb. 21, 2017), https://www.dailysignal.com/2017/02/21/latest-case-of-jag-malpractice-shows-pressing-need-for-reform/ (citing United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) and United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) as examples of “cases coming through the military justice system [that] strongly suggest[]” the Army needs a career litigation track”); Subcomm. of the Jud. Proc. Panel, Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases 10 (2016) (expressing concern that, “in the Army, about 20% of attorneys assigned to a defense counsel position have no prior [criminal litigation] experience”), https://jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_SubcommReport_DefResources_Final_20161208.pdf; Rebecca Kheel, Bipartisan Senators Seek to Boost Experience in Military Justice System, Hill (June 22, 2017, 11:03 AM), https://thehill.com/policy/defense/338949-bipartisan-senators-seek-to-improve-expertise-in-military-justice-system (quoting Sen. Kirsten Gillibrand) (“JAGs [sic] are encouraged to have a broad range of experience, which means that a JAG who has very little experience trying cases may be assigned to a complex sexual assault case. Our service members deserve better.”).

6. In 2017, Congress gave more specific direction, requiring each pilot program to include:

(A) A military justice career track for judge advocates that leads to judge advocates with military justice expertise in the grade of colonel, or in the grade of captain in the case of judge advocates of the Navy.

(B) The use of skill identifiers to identify judge advocates for participation in the pilot program from among judge advocates having appropriate skill and experience in military justice matters.

(C) Guidance for promotion boards considering the selection for promotion of officers participating in the pilot program in order to ensure that judge advocates who are participating in the pilot program have the same opportunity for promotion as all other judge advocate officers being considered for promotion by such boards.

(D) Such other matters as the Secretary concerned considers appropriate.

National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 532(c)(4), 131 Stat. 1283, 1388-89 (2017). This was not the first attempt to legislate a “military justice career track.” See infra note 77 and accompanying text.

7. Congress specifically directed the service secretaries to guide promotion boards to ensure that military justice specialization does not disadvantage officers pursuing this track, which shows some validity to these perceptions. See supra text accompanying note 6. See also infra note 81 and accompanying text (discussing the current policy, encouraging versatility to remain competitive for career advancement).

8. In early 2017, Lieutenant General (LTG) Flora Darpino, the 39th Judge Advocate General of the Army, directed a comprehensive retention survey of the Judge Advocate General’s Corps (JAG Corps) titled “Why You Stay.” Early results of the survey indicated that some JAs saw “broadly skilled JA” as one of many reasons to continue with a JAG Corps career; but, among other concerns, a perceived “lack of ability to specialize” led other JAs to consider leaving the service. LTG Flora Darpino, 39th Judge Advocate General of the Army, Office of The Judge Advocate General, Why You Stay Results (June 2017) (unpublished PowerPoint presentation) (on file with author-Major Murdough).

9. Special Announcement 40-04, supra note 1, at 2.

10. U.S. Dep’t of Air Force, Career Field Education and Training Plan 51J para. 4.2 (9 May 2017) (“Judge advocates must know and fully understand all legal capabilities and limitations. They must be able to advise in any environment, perform a variety of legal jobs, and understand all aspects of legal support to operations.”).

11. See Memorandum of Understanding Between the Deputy Judge Advocate General, United States Coast Guard and the Commander, Naval Legal Service Command, subject: Mutual Support in Military Justice Matters (31 Aug. 2016).

12. U.S. Dep’t of Navy, JAGINST 1150.2D, Military Justice Litigation Career Track 1 (15 Feb. 2017).

13. Id. at 2.

14. Id. encl. 1, encl. 2.

15. Id. at 3.

16. Id. at 3–4.

17. Id. encl. 1.

18. Id.

19. Id. at 2–3.

20. Id. at 3.

21. See generally U.S. Marine Corps, Order 1200.17E, Military Occupation Specialties Manual (8 Aug. 2013).

22. U.S. Marine Corps, Legal Services Strategic Action Plan 2010–2015 at 4, https://www.hqmc.marines.mil/Portals/135/Docs/Unit%20Home/Strategic_Action_Plan_2010-2015.pdf [hereinafter USMC Action Plan].

23. Id. app. A, at 6 (“These [37 specific billets in military justice] are supervisory and must be filled by military justice experts with an LL.M. in criminal law or a proven history of military justice experience and expertise.”).

24. Id. app. A, at 7.

25. Id.

26. U.S. Marine Corps, Bulletin 5800, Military Justice Requirements and Implementation Guidance (25 May 2017).

27. See USMC Action Plan, supra note 22, at 4 (“Without a [Marine Air-Ground Task Force] officer background, our judge advocates would be less effective in their primary roles as command legal advisors, military justice practitioners, and operational law advisors.”).

28. See Policy 08-2, Office of the Judge Advocate General, subject: Military Justice Additional Skill Identifiers (21 July 2008), superseded by Policy 11-7, Office of the Judge Advocate General, U.S. Army, subject: Military Justice Skill Identifiers (9 June 2011), superseded by U.S. Dep’t of Army, Office of the Judge Advocate General, Judge Advocate Legal Services Pub. 1-1, Personnel Policies para. 7-14.b (20 May 2019), superseded by U.S. Dep’t of Army, Office of the Judge Advocate General, Judge Advocate Legal Services Pub. 1-1, Personnel Policies para. 7-14.b (June 2020) [hereinafter JALS Pub. 1-1]. Congress specifically requires each service “pilot program” to include a system of skill identifiers. See supra text accompanying note 6.

29. JALS Pub. 1-1, supra note 28.

30. Memorandum from The Judge Advocate General for Staff Judge Advocates at Military Justice Redesign Pilot Program Sites, subject: Military Justice Redesign Pilot Program (24 Jan. 2019) (enclosed as Enclosure 3 to Special Announcement 40-04, supra note 1). The Military Justice Redesign Pilot Program (MJRPP) began at Fort Riley, Fort Leonard Wood, and Joint Base Lewis-McChord. After gaining permission from the Assistant Judge Advocate General for Military Law and Operations, Fort Carson implemented the MJRPP in January 2019. See Memorandum from Chief, Military Justice, 4th Infantry Division and Fort Carson to Criminal Law Division, Office of the Judge Advocate General, subject: Establishment of Military Justice Redesign Pilot Program Standard Operating Procedures (14 Dec. 2018) (on file with author-Major Overgaard) [hereinafter 4ID SOP]. Two of the authors of this article serve as senior defense counsel at two of the initial MJRPP locations.

31. Policy 19-01, Office of the Judge Advocate General, subject: Military Justice Redesign (18 July 2019) [hereinafter Policy 19-01].

32. Id.; see also 4ID SOP, supra note 30.

33. Policy 19-01, supra note 31; see also TJAG and DJAG Special Announcement 40-08: Decisions on Strategic Initiatives 2 (30 Apr. 2019) [hereinafter Special Announcement 40-08].

34. See Policy 19-01, supra note 31 (giving individual staff judge advocates (SJAs) an option between two general models, and discretion to divide responsibilities for individual tasks, e.g., administrative boards, preferral of charges, providing legal opines, et al. within certain parameters).

35. See, e.g., id.; Special Announcement 40-08, supra note 33; 4ID SOP, supra note 30; Gail Parsons, Pilot Program at Fort Riley Creating Expertise Among Attorneys, Army.mil (Nov. 21, 2018), https://www.army.mil/article/214114/pilot_program_at_fort_riley_creating_expertise_among_attorneys.

36. Policy 19-01, supra note 31.

37. See id. (leaving the “precise delineation” between the trial counsel and military justice advisor up to individual SJAs).

38. See id. para. 5-10c (“As a general rule, judge advocates graduating from the [Judge Advocate Officer Basic Course] will not be assigned to TDS as their initial assignment… any assignment of JAOBC graduates to TDS will be carefully monitored.”). All the authors of this article have served as senior defense counsel. At least one-third of the defense counsel assigned to each of our offices had no prior military justice experience.

39. Major Jeffrey Gilberg, The Secret to Military Justice Success: Maximizing Experience, 220 Mil. L. Rev. 65 (2014).

40. JALS Pub. 1-1, supra note 28, para. 5-1i. The notable exception is the position of military judge, which for active duty officers requires a minimum of either three years of trial litigation experience, two years of litigation experience combined with a year as chief of criminal law, regional defense counsel, or criminal law instructor, or three years as a SJA in an active criminal law jurisdiction. Id. para 8-1a(1).

41. See supra notes 22–26 and accompanying text. The Army JAG Corps uses a secondary MOS for military judges, but not for any other positions.

42. A formalized presumption, rather than a formal requirement, would reinforce the JAG Corps’s emphasis on expertise, yet also allow flexibility to grant an exception.

43. TJAG and DJAG Sends 40-11: Building Expert and Versatile Judge Advocates-the Revised Skill Identifier Program para. 1.a (7 Jun. 2019) [hereinafter TJAG and DJAG Sends 40-11]; accord JALS Pub. 1-1, supra note 28, para. 7-14a (“PDPCs are a significant factor in the assignment process, and possession of the appropriate level of PDPC…will be strongly considered during the assignment process”).

44. See generally U.S. Dep’t of Army, Pam. 611-21, Military Occupation Classification and Structure (19 July 2018); U.S. Dep’t of Army, Reg. 611-1, Military Occupational Classification Structure Development and Implementation para. 4-2 (15 July 2019) (discussing use of skill identifiers in matching officers’ skills to the requirements of particular duty positions).

45. TJAG and DJAG Sends 40-11, supra note 43, para. 1.a.

46. See U.S. Dep’t of Army, Reg. 608-99, Family Support, Child Custody, and Paternity para. 2-5 (29 Oct. 2003).

47. See FAR 6-302-3(a)(2)(iii) (2019).

48. Cf. FAR 1.602-3 (2019) (discussing unauthorized commitments of funds); 32 C.F.R. §

719.138(k) (1985) (discussing payment of expert witnesses).

49. UCMJ art. 18(a) (2016).

50. U.S. Dep’t of Army, Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare para. 8-39 (7 Aug. 2019).

51. U.S. Dep’t of Army, Reg. 600-37, Unfavorable Information (10 Apr. 2018). This regulation discusses adverse administrative actions, such as reprimands, but also the potential impact of unfavorable information on security clearances, an often overlooked collateral consequence of adverse actions. Id. ch. 3–4.

52. U.S. Dep’t of Army, Reg. 600-8-2, Suspension of Favorable Personnel Actions (Flags) (11 May 2016).

53. U.S. Dep’t of Army, Reg. 623-3, Evaluation Reporting System (4 Nov. 2015).

54. U.S. Dep’t of Army, Reg. 600-8-24, Officer Transfers and Discharges (12 Apr. 2006).

55. See generally U.S. Dep’t of Army, Reg. 635-40, Disability Evaluation for Retention, Retirement, or Separation (19 Jan. 2017); U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Separations (19 Dec. 2016); Information Paper from Colonel F. Dean Raab, U.S. Army Medical Command Staff Judge Advocate, subject: Impact of Misconduct during Army Physical Disability Evaluation System Process, (8 June 2015) (on file with author).

56. See generally U.S. Dep’t of Army, Reg. 20-1, Inspector General Activities and Procedures (29 Nov. 2010).

57. See generally Supplemental Standards of Conduct for Employees of the Department of Defense, 5 C.F.R. § 3601, (1993); U.S. Dep’t of Def., 5500.7-R, Joint Ethics Regulation (JER) para. 3.1 (30 Aug. 1993) (C7, 17 Nov. 2011).

58. Prosecutors were formerly assigned to specific brigade headquarters as members of the staff, though they performed duties in the division, corps, or installation military justice office. Under the MJRP, all prosecutors are now centrally assigned to the OSJA, in the headquarters of the General Court-Martial Convening Authority. See Policy 19-01, supra note 31.

59. U.S. Dep’t of Army, Reg. 27-1, Judge Advocate Legal Services para. 3-6 (12 Jan. 2017) (describing the duties of brigade judge advocates (BJAs), to include physical duty location at the brigade headquarters) [hereinafter AR 27-1].

60. See generally U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations 2-28 (5 May 2014) (describing the role and function of the staff judge advocate as a member of the commander’s personal and special staff).

61. See U.S. Dep’t of Army, Doctrine Pub. 5-0, The Operations Process paras. 32–34 (May 2012). Without this experience, most JAs are not exposed to Military Decision Making Process until they are senior majors attending their Intermediate Level Education course. Id.

62. See generally Manual for Courts-Martial, United States, R.C.M. 502(a)(1) (2019) (requiring selection of members based on their “age, education, training, experience, length of service, and judicial temperament”) [hereinafter MCM].

63. See generally supra section Exposure to Other Areas of Military Law Makes Better Military Justice Practitioners.

64. See generally MCM, supra note 62, R.C.M. 306 (discussing disposition options available to commanders for allegations of misconduct); see also Dep’t of Army, Reg. 600-20, Army Command Policy para. 5-8 (6 Nov. 2014).

65. AR 27-1, supra note 59, para. 3-6d(1).

66. Particularly compared to other Army branches, the JAG Corps provides a dearth of opportunities for junior officers to lead within the organization.

67. Additionally, the “competent in all legal disciplines” requirement includes military justice competence for the JAG Corps’s specialists in other legal functions, such as national security law. Assignment to positions as military justice advisors or special victims counsel may be a way for the JAG Corps to build competence in its non-justice specialists while mitigating the risk of sending unqualified litigators into the courtroom.

68. With fixed (or declining) numbers of courts-martial, more JAs trying cases means fewer opportunities for individual JAs to gain experience through trying cases. Two relatively recent studies quantify this issue. See Gilberg, supra note 39, at 1, 10–11 (finding, inter alia, in a 2014 study that over 70% of the Army’s trial counsel and about 60% of its chiefs of justice had tried fewer than 10 cases); Major Derrick W. Grace, Sharpening the Quill and Sword: Maximizing Experience in Military Justice, Army Law., Dec. 2010, at 24.

69. Otherwise they will never gain the base experience on which expertise can be built.

70. JALS Pub. 1-1, supra note 28, para. 5-3.

71. See Colonel Jerrett W. Dunlap Jr., Measuring the Effectiveness of the Military Justice System, Army Law., Jan. 2018, at 9, 15 (“Experience alone, as measured by the number and type of cases tried, is not sufficient to ensure effectiveness. There are countless examples of experienced counsel who are not effective.”).

72. Justice for Victims of Military Sexual Assault Act, H.R. 5257, 114th Cong. § 2(b)(3) (2016).

73. See supra notes 19–20 and accompanying text.

74. JALS Pub. 1-1, supra note 28, para. 5-1j.

75. Id. (emphasis added).

76. The JAG Corps career management policy acknowledges that “Versatile JAs, by understanding the interrelationship of the various legal disciplines, are better practitioners and better able to serve their clients, even in areas requiring the development of functional expertise.” Id. But this single sentence, without formal and informal reinforcement, will do little to overcome the skepticism produced in the era of “broadly-skilled.”

77. A recent review of the Navy JAG Corps made a similar observation, noting that “Increased understanding of and appreciation for Navy operations and Service culture would improve judge advocates’ court-martial practice” and recommending the Navy “Effectively communicate the need for, and value of, [national security law, command advice, administrative law, legal assistance and claims] missions to the entire JAG Corps organization.” U.S. Dep’t of Navy, Executive Review Panel, Comprehensive Review of the Department of the Navy’s Uniformed Legal Communities 115–16 (2019), https://www.navy.mil/strategic/Comprehensive%20Review%20DON%20Uniformed%20Legal%20Communities.pdf.

78. The JAG Corps’s published “Military Justice Opportunities,” superimposed on the standard officers’ career model, acknowledges military justice experts “remain versatile and capable of performing successfully in any core legal function,” but does not explain the benefits of cross-functional versatility to the practice of justice. JALS Pub. 1-1, supra note 28, fig. 7-1.

79. By comparison, even though national security law issues do not typically dominate a BJA’s workload, the “National Security Law Opportunities” model still includes BJA of a Brigade Combat Team and Group or Regimental JA of units within U.S. Army Special Operations Command. Id. fig. 7-3.

80. See supra note 79 and accompanying text.

81. Press Release, Accenture, Accenture Further Strengthens Commitment to Inclusion & Diversity in the U.S. (Feb. 8, 2016), https://newsroom.accenture.com/news/accenture-further-strengthens-commitment-to-inclusion-and-diversity-in-the-us.htm (quoting Julie Sweet, Accenture Chief Executive-North America).