B-171379, MAY 19, 1971, 50 COMP GEN 810

B-171379, MAY 19, 1971, 50 COMP GEN 810

WITNESSES - COURTS-MARTIAL PROCEEDINGS - TRAVEL EXPENSES THE ISSUANCE OF INVITATIONAL TRAVEL ORDERS AND THE PAYMENT OF COMMUTED TRAVEL ALLOWANCES UNDER 5 U.S.C. 5703 TO CIVILIAN PERSONS OTHER THAN FEDERAL GOVERNMENT EMPLOYEES WHO ARE REQUESTED TO TESTIFY AT PRETRIAL INVESTIGATIONS PURSUANT TO ARTICLE 32 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 832, WHICH IS IMPLEMENTED BY THE MANUAL FOR COURTS- MARTIAL PRESCRIBED BY EXECUTIVE ORDER NO. 11476, JUNE 19, 1969, MAY BE AUTHORIZED, EVEN THOUGH THE MANUAL MAKES NO PROVISION FOR THE SUBPOENA OF WITNESSES AND THE PAYMENT OF WITNESS FEES, SINCE THE INVESTIGATIONS ARE AN INTEGRAL PART OF THE COURTS-MARTIAL PROCEEDINGS. HOWEVER, AS THE APPROVAL AUTHORITY IS DISCRETIONARY, IT SHOULD BE EXERCISED WITHIN THE FRAMEWORK OF THE MILITARY CODE, WHICH IN ARTICLE 49 PROVIDES FOR DEPOSITIONS, AND THE MANUAL, WHICH IN PARAGRAPH 34D PRESCRIBES GUIDELINES, AND THE JOINT TRAVEL REGULATIONS REVISED ACCORDINGLY.

TO THE SECRETARY OF THE ARMY, MAY 19, 1971:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 6, 1970, FROM THE HONORABLE WILLIAM K. BREHM, ASSISTANT SECRETARY OF THE ARMY, REQUESTING OUR OPINION ON WHETHER AUTHORITY EXISTS FOR THE ISSUANCE OF INVITATIONAL TRAVEL ORDERS AND THE PAYMENT OF TRAVEL ALLOWANCES TO CIVILIAN PERSONS (OTHER THAN FEDERAL GOVERNMENT EMPLOYEES) REQUESTED TO TESTIFY IN CONNECTION WITH INVESTIGATIONS CONDUCTED UNDER ARTICLE 32, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 832. THE QUESTION IS SUBMITTED IN CONTEMPLATION OF A REVISION OF THE JOINT TRAVEL REGULATIONS. THE REQUEST FOR DECISION, REVIEWED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCES COMMITTEE, HAS BEEN ASSIGNED PDTATAC CONTROL NO. 70-50.

THE UNIFORM CODE OF MILITARY JUSTICE, NOW AN INTEGRAL PART OF TITLE 10 OF THE U.S.C. ENTITLED "ARMED FORCES," WAS ORIGINALLY ENACTED MAY 5, 1950 (64 STAT. 108), AND BECAME EFFECTIVE MAY 31, 1951. IT UNIFIED, CONSOLIDATED, REVISED AND CODIFIED THE ARTICLES OF WAR, THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, AND THE DISCIPLINARY LAWS OF THE COAST GUARD. ARTICLE 32 OF THE UNIFORM CODE, OF PRIMARY CONCERN HEREIN, INVOLVES A STATUTORY REQUIREMENT OF EXTENSIVE AND FORMALIZED PRETRIAL INVESTIGATION OF CHARGES AND SPECIFICATIONS BEFORE REFERENCE TO TRIAL BY COURTS-MARTIAL, A STATUTORY REQUIREMENT FIRST INCORPORATED IN A REVISION OF THE ARTICLES OF WAR IN 1920 (41 STAT. 759, 802).

ARTICLE 32 PROVIDES THAT NO CHARGE MAY BE REFERRED TO A GENERAL COURT MARTIAL FOR TRIAL "UNTIL A THOROUGH AND IMPARTIAL INVESTIGATION" THEREOF HAS BEEN MADE. THE INVESTIGATION REQUIRED BY THE ARTICLE CALLS FOR AN "INQUIRY AS TO THE TRUTH OF THE MATTER SET FORTH IN THE CHARGES, CONSIDERATION OF THE FORM OF CHARGES, AND A RECOMMENDATION AS TO THE DISPOSITION WHICH SHOULD BE MADE OF THE CASE IN THE INTEREST OF JUSTICE AND DISCIPLINE." THE ACCUSED, WHO MUST BE ADVISED OF THE CHARGES AGAINST HIM, HAS THE RIGHT TO BE REPRESENTED BY COUNSEL AT THE INVESTIGATION. THE INVESTIGATION FULL OPPORTUNITY IS GIVEN THE ACCUSED "TO CROSS-EXAMINE WITNESSES AGAINST HIM IF THEY ARE AVAILABLE" AND TO PRESENT ANYTHING HE MAY DESIRE IN HIS OWN BEHALF, EITHER IN DEFENSE OR MITIGATION; AND THE INVESTIGATING OFFICER IS TO EXAMINE "AVAILABLE WITNESSES REQUESTED BY THE ACCUSED."

IMPLEMENTING THE UNIFORM CODE OF MILITARY JUSTICE IS THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969 (REVISED EDITION), WHICH WAS PRESCRIBED BY EXECUTIVE ORDER NO. 11476, JUNE 19, 1969. PARAGRAPH 34D OF THE MANUAL, ON THE SUBJECT OF WITNESSES IN AN ARTICLE 32 INVESTIGATION, STATES:

ALL AVAILABLE WITNESSES, INCLUDING THOSE REQUESTED BY THE ACCUSED, WHO APPEAR TO BE REASONABLY NECESSARY FOR A THOROUGH AND IMPARTIAL INVESTIGATION WILL BE CALLED AND EXAMINED IN THE PRESENCE OF THE ACCUSED, AND IF COUNSEL HAS BEEN REQUESTED, IN THE PRESENCE OF THE ACCUSED AND HIS COUNSEL. ORDINARILY, APPLICATION FOR THE ATTENDANCE OF ANY WITNESS SUBJECT TO MILITARY LAW WILL BE MADE TO THE IMMEDIATE COMMANDING OFFICER OF THE WITNESS, WHO WILL DETERMINE THE AVAILABILITY OF THE WITNESS. THERE IS NO PROVISION FOR PAYING COMPENSATION TO ANY WITNESS WHO GIVES EVIDENCE AT THE PRETRIAL INVESTIGATION. THERE IS NO PROVISION FOR COMPELLING THE ATTENDANCE OF WITNESSES NOT SUBJECT TO MILITARY JURISDICTION.

AS INDICATED IN PARAGRAPH 34D OF THE MANUAL THERE IS NO PROVISION FOR THE SUBPOENA OF WITNESSES OR THE PAYMENT OF WITNESS FEES AND MILEAGE FOR ATTENDANCE AT AN ARTICLE 32 INVESTIGATION. THE ABSENCE OF SUBPOENA POWER AND THE INCIDENTAL AUTHORITY TO TENDER WITNESS FEES HAS NOT BEEN VIEWED AS NECESSARILY PRECLUDING THE EXERCISE OF DISCRETIONARY AUTHORITY TO INVITE TRAVEL AT GOVERNMENT EXPENSES OF MATERIAL WITNESSES BEFORE ADMINISTRATIVE HEARINGS WHEN THE INTERESTS OF THE GOVERNMENT REQUIRE THEIR TESTIMONY. COMP. GEN. 226 (1960), 48 ID. 110 (1968). MOREOVER IN 48 COMP. GEN. 644 (1969), WITH REFERENCE TO HEARINGS INVOLVING ADVERSE ADMINISTRATIVE ACTIONS AGAINST FEDERAL EMPLOYEES OR MILITARY MEMBERS, WE HELD:

IF IN AN AGENCY ADMINISTRATIVE HEARING OF THE TYPE UNDER DISCUSSION, THE PRESIDING HEARING OFFICER SHOULD DETERMINE THAT THE TESTIMONY OF A PERSON NOT EMPLOYED BY THE GOVERNMENT IS NECESSARY FOR A PROPER DISPOSITION OF THE CASE, AND THE WITNESS IS CALLED BY THE PRESIDING HEARING OFFICER, IT IS OUR VIEW THAT THE WITNESS MAY BE CONSIDERED AS AN "INDIVIDUAL SERVING WITHOUT PAY" WITHIN THE SCOPE OF 5 U.S.C. 5703, EVEN THOUGH THE WITNESS IS, IN EFFECT, TO TESTIFY ON BEHALF OF THE EMPLOYEE OR MEMBER INVOLVED.

WE ARE CONCERNED HEREIN NOT WITH AN ADMINISTRATIVE HEARING ON THE MERITS OF A CASE, BUT A PRETRIAL INVESTIGATION - REQUIRED BY STATUTE - IN THE ADMINISTRATION OF MILITARY CRIMINAL JUSTICE. THE SUPREME COURT IN CONSIDERING THE 70TH ARTICLE OF WAR, A PREDECESSOR OF THE 32D ARTICLE OF THE UNIFORM CODE, STATED:

*** THE ARTICLE DOES SERVE IMPORTANT FUNCTIONS IN THE ADMINISTRATION OF COURT-MARTIAL PROCEDURES AND DOES PROVIDE SAFEGUARDS TO THE ACCUSED *** .

*** ITS ORIGINAL PURPOSES WERE TO INSURE ADEQUATE PREPARATION OF CASES, TO GUARD AGAINST HASTY, ILL-CONSIDERED CHARGES, TO SAVE INNOCENT PERSONS FROM THE STIGMA OF UNFOUNDED CHARGES, AND TO PREVENT TRIVIAL CASES FROM GOING BEFORE GENERAL COURTS-MARTIAL *** . HUMPHREY V SMITH, 336 U.S. 695 (1949).

TURNING TO THE CURRENT ARTICLE 32 OF THE UNIFORM CODE WE FIND THE UNITED STATES COURT OF MILITARY APPEALS DESCRIBING IT AS FOLLOWS:

AN ARTICLE 32 INVESTIGATION IS NOT A MERE FORMALITY, BUT IS AN INTEGRAL PART OF THE COURT-MARTIAL PROCEEDINGS (UNITED STATES V ALLEN, 5 USCMA 626, 18 CMR 250 (1955), AND JUDICIAL IN CHARACTER (UNITED STATES V EGGERS, 3 USCMA 191, 11 CMR 191 (1953)). IT OPERATES, MOREOVER, AS A DISCOVERY PROCEEDING FOR THE ACCUSED (UNITED STATES V SAMUELS, SUPRA). WHILE THE FAILURE TO COMPLY WITH, OR A SUBSTANTIAL DEPARTURE FROM, THE REQUIREMENTS OF ARTICLE 32 DOES NOT DEPRIVE THE COURT-MARTIAL OF JURISDICTION (UNITED STATES V NICHOLS, 8 USCMA 119, 23 CMR 343 (1959)), IT CAN REQUIRE APPROPRIATE RELIEF, OR EVEN REVERSAL OF A CONVICTION (UNITED STATES V PARKER, 6 USCMA 75, 19 CMR 201 (1955); UNITED STATES V SCHULLER, 5 USCMA 101, 17 CMR 101 (1954)). *** UNITED STATES V GARNER, 40 CMR 778 (1969).

ARTICLE 32 BEING VIEWED AS AN IMPORTANT AND SUBSTANTIAL INGREDIENT OF COURT-MARTIAL PROCEEDINGS, WE PERCEIVE NO SIGNIFICANT BASIS FOR A CATEGORICAL DENIAL OF THE EXISTENCE OF DISCRETIONAL AUTHORITY FOR THE ISSUANCE OF INVITATIONAL TRAVEL ORDERS, AND THE PAYMENT OF COMMUTED TRAVEL ALLOWANCES UNDER 5 U.S.C. 5703, IF NECESSARY FOR ACHIEVING ANY OF THE PURPOSES OF THE ARTICLE. HOWEVER, THE DISCRETIONARY AUTHORITY TO PROVIDE FOR THE TRAVEL AT GOVERNMENT EXPENSE OF MATERIAL WITNESSES ON BEHALF OF THE ACCUSED OR THE PROSECUTION SO AS TO MAKE THEM "AVAILABLE" FOR AN ARTICLE 32 INVESTIGATION MUST BE EXERCISED WITHIN THE FRAMEWORK OF THE UNIFORM CODE OF MILITARY JUSTICE AND THE MANUAL FOR COURTS-MARTIAL. REFERENCE IS PARTICULARLY MADE TO THE PROVISION FOR DEPOSITIONS, ART. 49, 10 U.S.C. 849. A REVISION OF PARAGRAPH 34D, SETTING FORTH GUIDELINES FOR THE EXERCISE OF SUCH AUTHORITY WOULD APPEAR TO BE PREREQUISITE TO THE CONTEMPLATED REVISION OF THE JOINT TRAVEL REGULATIONS.

THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY.