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The UCMJ and Insubordination: Suitability of Military Judicial Responses during the Vietnam War

Olivia Zhu

John Near Scholar Ms. Wheeler 15 April 2011

Zhu 2 Military justice is a convoluted and conflicted branch of law, born as it was in discipline and efficiency, not necessarily equal and fair trials. Yet over the centuries, the rules and regulations governing the armed forces have been changing, and the codes have become more unified, understandable, and liberal. The process of proposing, testing, and adjusting amendments to existing military laws unfailingly impacts the troops that such statutes protect and punish. One of the unavoidable problems of having any type of command, however, is the fact that individuals will attempt to subvert authority and attack unfair, ill written, or simply inconvenient regulations. Insubordination at home and abroad seemed to be the hallmark of the Vietnam War, which dominated the national consciousness for two decades: activists, soldiers, and the U.S. population as a whole all opposed the fighting in the Southeast Asia. The same desire to rebel against authoritarianism and injustice permeates American history and culture, yet other motivators drove the actions of some of the soldiers stationed in Vietnam: race, disrespect of officers, drug use, and the ever-present and pressing desire to return home. The measures in place to respond to such an outpouring of discontent within the armed forces took the form of the 1950 Uniform Code of Military Justice (UCMJ)—a relatively untested document that was challenged repeatedly and particularly in the period from 1969 to 1975. Ultimately, the insubordination during the Vietnam War prompts a reanalysis of the code’s efficacy and of the nature of military law, especially considering the flashpoint issues of the desire of soldiers to speak out during a contentious and misunderstood time in American history and the need for effectiveness and solidarity during a most difficult war.

The History of the Military and American Society The United States Army and Navy were distinctly tied to the nation’s consciousness from the very onset of the American Revolution and have duly influenced both policy and public

Zhu 3 perception. However, over the course of the Vietnam War, which officially spanned from 1965 to 1975, the prestige of the military had diminished. The highly controversial Korean and Vietnam Wars had a detrimental effect on popular support for soldiers; furthermore, spillover antagonism and frustration led to mass rallies and protests among civilians, not to mention enlisted men. For example, the controversial return of the draft in 1969 “sparked the largest eruption of public outrage since the Civil War, nearly crippling the Selective Service System and creating widespread social upheaval.”1 What impacted civilians duly affected soldiers, especially during the Vietnam War. Displeasure with presidents and generals carried over to the troops, where mere resentment turned into outright acts of insubordination. After all, the military is comprised of citizens accustomed to broadcasting and acting upon their own political leanings.

Origins of the Uniform Code of Military Justice Coupled with the history of the U.S. military is the story of the origins of its rules and regulations. When America was still technically a collection of colonies under the rule of a faraway king, it had a military code of law that stemmed from ancient European and English traditions. Since so much was based on various acts passed by Great Britain’s Parliament, the United States has always had “military laws and tribunals entirely separate from civilian laws and courts,” which is particularly significant when “considering the applicability of ordinary civilian legal principles to military tribunal proceedings.”2 Following the American Revolutionary War, little changed in terms of the logistical and structural organization of a code of law; however, the singular and novel establishment of proceedings like courts-martial meant that the American military and the legal system that guided it were “appropriate for the government of an Army of freemen fighting for freedom.”3 The differences between the British and the newly-independent American legal codes were especially important since the U.S.

Zhu 4 Articles of War maintained the sense of purpose—of liberty and equity—built into the Constitution of the nation. During Vietnam, the sustainability and feasibility of those same values would be tested though they were ingrained more heavily in the structure of the UCMJ. Over the decades, the Articles of War changed little. Though certain alterations like the inclusion of “a review board outside the defendant’s line of command” further liberalized the military laws were made in the period between World War I and World War II,4 the structure and driving principles of the code remained mostly as they had been for centuries.5 It was not until the 1950s—following an “[era] of turmoil” much like that of Vietnam,6 that the American public refocused its attention from celebrating or denigrating the military to reforming the laws that impacted it. Congress turned its attention toward developing a more modern system based on empirics and many years of experimentation.7 More precisely, the growth of the U.S. military during tumultuous times of war such as the defining periods marking the World Wars and growth of the military-industrial complex during the Cold War period that encapsulated the Korean and Vietnam Wars necessitated reforms that would streamline the judicial process and allow for fairer trials. However, an interesting anecdote that reveals much about congressional perceptions of military justice occurred in 1865, when the duties of Solicitor and Judge Advocate General for the U.S. Navy were established and promptly “abolished… after the death of the incumbent.”8 Even as early as the nineteenth century, attempts to liberalize and equalize the judicial system of the navy had been conceptualized and shot down—a pattern that arguably continues to modern times.

In the period of stasis after World War II, Congress attempted military reform with the 1948 Elston Act. Back in 1946, Representative Carl T. Durham had proposed a bill that would reform the courts-martial system, in response to an analytical report from the House Military

Zhu 5 Affairs Committee that suggested the Articles were fundamentally flawed and led to inconsistent applications of justice.9 Though the bill was not immediately passed and was substantially altered, it catalyzed major revisions to the Articles of War and further liberalized the army’s legal system, demystifying the laws and better protecting average soldiers through “greatly increased participation by lawyers at all stages and in all roles.”10 This Elston Act, which sought the issues of command influence and inequitable trial proceedings, served as an intermediate step between the Articles of War and the UCMJ and was the first major challenge to the rules ingrained in American history and the code of law that had always been the status quo.

The inception of the Elston Act marked the beginning of the evolution of military law that became more pronounced when the Korean War began. Since it was argued that the Elston Act only addressed military justice in the army, a new committee especially established by Congress for the purpose of reforming military law was instructed to find a way to make eventual Uniform Code of Military Justice both “modern” and, well, uniform.11 In 1949, just a year after the passage of the Elston Act, the new document was created to subsume all previous laws governing the Army, Navy, and Air Force, thus maximizing efficiency while maintaining certain key ideas. Like its predecessor, the UCMJ honored “the basic structure of the courtmartial system and preserved command control.”12 In the name of clarity, some “[minor] changes were made in the punitive articles” and other obscure, dated consequences were “blessedly omitted.”13 However, the common theme of gradual change in military law codes was maintained—while the UCMJ simplified the structure set by the Articles of War, the underlying philosophy stayed the same. Soldiers would not be afforded the liberties granted to civilians. In 1950, the UCMJ was officially signed into law by President Truman, finally taking effect midway through 1951.14

Zhu 6 As a new system, however, the UCMJ still had significant faults that needed to be addressed. After all, the brevity of the Korean War—it lasted from 1950 to 1954—and “relatively low level of conscription throughout the 1950s” meant that “the UCMJ had never been put to a real test” before the Vietnam War a few years later.15 Yet another difference between the Korean War and the Vietnam War was the fact that any courts-martial necessary during the former “were conducted in Japan, not the combat zone,” which meant that witnesses and evidence would be more readily available during a trial16 but there was a likelihood that command influence was amplified; that is, commanders of units could have“[prejudiced] the rights of accused servicemen by the exertion of undue pressure on courts-martial.”17 What the weakness of the new law meant, then, was that even in the middle of U.S. involvement during the Vietnam War, the UCMJ was still undergoing major overhauls. On August 1st, 1969, a revised version that had been reviewed by Congress and the four military services permitted an expansion of “the role of the law officer,” highlighting the growing acknowledgment of the importance of using legal methods to address wrongdoings.18 However, the changes did not turn the UCMJ into anything similar to a civilian code of law. After all, it still allowed “the convening authority his right to hand-pick the court and counsel for both sides. It does not guarantee enlisted men a trial by their peers…. It in no way affirms the right to freedom of speech and assembly.”19 There was a limit to how much freedom the military, legal, and political powers were willing to give—above all, the armed forces had to adhere to a code far more restrictive than that of civilians, for good reason.

Drug Use: Symptom of a Larger Malaise Like many of their peers not in the army, some of the troops already enlisted in the U.S. military by 1975 were impacted by societal fluctuations and trends, as well as with the discontent

Zhu 7 associated with serving during a time of war. High rates of drug use on the front lines of the Vietnam War were common as soldiers indulged in a variety of illicit substances, including marijuana and heroin. David Cortright, a former Vietnam GI and current scholar and activist, found that “drug-use levels in Vietnam were higher than at any location in the world.”20 In a way, the widespread consumption of marijuana and narcotics somewhat reflected aspects of American society: hippie culture, to name just one. However, the extensive drug use among troops, as detailed in a 1969 study of a replacement center at Cam Ranh Bay—where soldiers leaving the country were polled as their successors began their tours of duty—that reported that fifty percent of all one-year veterans used marijuana,21 was probably in response to issues that civilians at home could not have imagined. In 1969, there were 3.5 million active duty members in the U.S. military, a number that later dropped by more than a third by 1975. Also considering the fact that from July of 1971 through February of 1972, there were 255,700 newly enlisted soldiers in all four services of the military, the number of soldiers who smoked marijuana or used psychedelics and narcotics was significant.22 A Department of Defense Survey, conducted in the fall of 1971 and based heavily on interviews with Vietnam veterans, pronounced that 29.9% of all enlisted men smoked marijuana, 18.8% used psychedelics, and 12.2% used narcotics.23 Peer pressure and the stressors of war certainly contributed to the “heroin epidemic in the U.S. Army,”24 as evidenced by the fact that “drugs were most frequently used in infantry units” and among units that saw combat. Perhaps illicit substances were being used as a means of escape from both the experience of war and the ever-present burden of obeying a confining code of law. Fundamental concerns regarding the nature of the Vietnam War among troops caused “[demoralization] to the point of collapse,” with the abuse of drugs serving as an indicator of the mental and emotional state of the troops.25

Zhu 8 While the recreational usage of marijuana and heroin in the Army from the late 60s to the early 70s may have been related to societal trends like the 1967 Summer of Love and various counter-culture and hippie movements within America, drug use was intrinsically tied to the concept of rebellion and most definitely facilitated insubordination. After all, smoking marijuana often led to “troublesome tensions between first-termers and senior commanders” and soldiers “could not have been very efficient or highly motivated.”26 The prevalence of drugs may not have been the greatest concern of the army, but it serves as an indicator of the problems of the military justice system and of society at large. That is, the American public was shocked by but not necessarily oblivious to the commonality of marijuana and narcotics in active combat units and the lives of veterans.27 Meanwhile, the military authorities had insufficient knowledge, will, and influence to tamp down on these particular acts of insubordination.

The pervasiveness of drug use meant that high-level officers in the military could implicate individuals by hinting about substance abuse. Certainly, the UCMJ does outline in Article 134 that possession of drugs can be punished but that a soldier who did not know there were illicit substances in his possessions could be somewhat excused. For example, if drugs had been planted in his belongings and a soldier could make case for his ignorance, then he could not legally be punished under Article 134. Furthermore, both “direct or circumstantial evidence” must be presented by the accusers.28 However, in a notable 1968 case, a dissident named Bruce “Gypsy” Petersen, a private in the U.S. Army and known disseminator of anti-war propaganda, had raised the ire of his ranking officers by supporting the actions of the men who protested the war in the Presidio Mutiny.29 After he was arrested for possessing marijuana in the summer of 1968 while on leave in the United States—and was therefore guilty of a civilian crime, not strictly a military one—he was sentenced by court-martial to almost a decade in prison on the

Zhu 9 basis of evidence that was “allegedly found in his car when he was [arrested,] disappeared when sent for microscopic analysis and [was not] introduced as evidence at his trial.”30 According to some of his peers and supporters, Petersen may have been subjected to an excessive time in jail merely because he spoke out against military authorities.31 The sentence may have seemed unfair simply because he had been charged for a crime that was generally ignored when other men had walked free. Given the prevalence of marijuana in Vietnam and at home, it seems surprising now that Petersen was given a relatively harsh sentence. The drugs might have just been a convenient reason for officials to arrest the private, and his regular distribution of anti-war materials might have been the real “crime” that the brass was trying to prosecute. It seems that the UCMJ was ignored with regard to drug sentencing until it became useful for the purposes of high-ranking officers.

Enlisted Men and Officers: Fundamental and Significant Differences This friction between enlisted men and their officers became a key sticking point in the UCMJ. Precisely, due to the fact that some soldiers were drafted, already-tense scenarios were aggravated by the disparities of power and treatment granted to the two groups. It makes sense, then, that insubordination took a new form in Vietnam—the UCMJ facilitated a growing anger as both drafted and enlisted soldiers took action against authority figures. For example, Articles 89 through 92 of the UCMJ specifically deal with interactions between a subordinate and an officer, including disrespect (Article 89), assault and willful disobedience (90), insubordination (91), and more disobedience (92).32 That an army’s worth is determined by the efficiency and unquestioning acceptance of orders of its members is undeniable. Yet also incontrovertible is the notion that soldiers who must follow any order and in any form33—regardless of the stress and high emotion associated with combat in a foreign land—will ultimately find some way to rebel.

Zhu 10 The desire to undermine authority in Vietnam appeared in manifold forms with varying degrees of extremity. While “as many as one fourth of all Army enlisted men engaged in some form of rebellion against military authority,”34 their behaviors ranged from recreational drug use to fragging, a type of deliberate friendly fire. Resentment among the troops was a common feature, making tension and insubordination an almost guaranteed attribute of most combat units.

As one Vietnam soldier wrote to his parents, his “commanding officer [was] insane. Gungho lifer looking for nothing but a body count of enemy so he can make a stupid promotion.”35 Later on, the letter detailed the writer’s suspicion that one of the unit members was likely to murder the commanding officer later on, qualified by the statement that he had “never seen such hatred.”36 Similar levels of vitriol and bitterness were noticeable throughout the forces stationed in Vietnam, and fraggings were frighteningly common, especially in the later stages of the war. As with drug charges against Bruce Petersen, there were insinuations that major dissenting voices like Billy Dean Smith had been framed for a crime they had not committed; in Smith’s case, he was accused of killing two of his officers even though he had an alibi and it appeared that evidence had to be fabricated just to send him to trial, a hallmark of an inconsistent justice system.37 Keeping in mind that Smith’s story has been preserved and promoted by his peers, it appears that his superiors framed him and that loopholes in evidence presentation were exploited during his conviction.

While fragging exemplified the most extreme version of military personnel taking action against officers, there were a host of other disobedient actions specifically highlighting the discrepancies and friction between enlisted men and authority figures. Cortright, based on extensive research and his own experience, presents a laundry list of insubordinate actions:

Zhu 11 “The grunts’ rebellion seldom reached the stage of formal mutiny, assuming instead lessvisible forms: ‘search and avoid’ missions, with patrols intentionally skirting potential enemy clashes or halting a few yards beyond the defense perimeter for a three-day pot party; threats against commanders, often forcing officers and NCOs to worry more about their own men than the Vietnamese; defiance of authority, with GIs blatantly disregarding dress and hair regulations and military custom; and covert obstruction, ranging from intentional inefficiency on the job to major acts of sabotage.”38 Some forms of insubordination, like “search and avoid” missions, were clearly rooted in a desire to survive a one-year tour of Vietnam.39 The prevalence of disobedience for disobedience’s sake, on the other hand, appears to be a symptom of a different discontent. No longer was respect— one of United States Military Academy at West Point’s vaunted virtues—an expected quality among troops. As the prestige of the military diminished, so too did integrity of the cadets set to become the next generation of officers. It seemed that society’s perceptions of the military somehow shaped future leaders even as they affected the mentality of draftees who were sent to Vietnam in the early 1970s. At West Point, cheating was considered widespread and fairly common during the period spanning the late sixties and early seventies; for example, the class of 1977 was wracked by allegations that more than three hundred students were implicated in a scandal involving testing procedures for an electrical engineering class. 40 Even though the academy was trying to inculcate values, most notably “a reverence for truth, honor, and authority,”41 it appeared that the unequal application of military justice began at institutions like West Point, where “academy justice could also be absurdly arbitrary.”42 Major instances of cheating like the incident above were not isolated, either. The unique aspect of the 1977 scandal was not that so many cadets lacked integrity, but that they were caught at all.43 How telling that

Zhu 12 even at the university intended for the future leaders of the military, the values of the UCMJ— present also in the guiding principles of the school—had little hold over the troops who were supposed to follow it.

Instead, it appears that since soldiers like Lieutenant Corporal Stephen Daniel felt America had become “a damn country not worth fighting for,”44 they sought ways of asserting independence from a system and an organization that no longer held their utter, complete loyalty.

Officers, contrastingly, “appear stern and stoic, yet are at once deeply sentimental... They prize their willingness to subordinate personal interest (in life itself) to their country's collective goals.”45 Consciously or not, perhaps insubordination during the Vietnam War was so rampant because of the vastly different opinions of officers and subordinates. Considering recently researched “knowledge about the bases of cohesion among troops… and the indispensability of self-discipline,” it seems “that military law should, at key points, abandon its traditional insistence on bright-line disciplinary rules in favor of general standards of circumstantial reasonableness.”46 The UCMJ, however, does strictly outline precisely what disobedience means, favoring a ranking officer in almost every one of the articles relating to insubordination.

Moreover, it is on the point of subordination that current military law has perhaps changed the least from the Articles of War; as a known opponent of the Vietnam War, journalist Robert Sherrill once wrote that “[historically], the man in uniform has been viewed as the property of his commanding officer.... The serviceman has had to bend his personal life to what even such a libertarian as Chief Justice Warren viewed as the ‘military necessity’ for absolute discipline, order and conformity.”47 Military Law Professor Mark Osiel notes that “A leading British general goes so far as to say, ‘though thousands of moralists have solemnly repeated… that only he can command who has learned to obey, it would be nearer the truth to say that only he can

Zhu 13 command who has the courage and initiative to disobey.’”48 Regardless of the sociological reasons behind why officers might have chosen an insubordinate stance, as further examination will reveal, officers typically objected on moral reasons, while enlisted men were driven by both self-preservation and a desire to protest against what they felt was the injustice of the Vietnam War. It seemed that officers had the luxury of being driven by ethics, which is not to say that enlisted men were not. Instead, perhaps it took longer for strong anti-war sentiment to take root amongst draftees and for protest movements to gain momentum than it did for individuals to act out on their own.

Early Insubordination: Deployment and Protests at Home Despite the fact that officers, on the whole, subscribed to the concept of obedience and the fulfillment of Warren’s “military necessity,” there were still a number of higher-ranking soldiers who were judged insubordinate throughout the war, and Captain Howard Levy is a prime example. When the Vietnam War first began, opposition to the deployment of the American troops was arguably more intellectually driven. As such, “most of the early resistance came from highly educated or highly political men, acting individually.”49 One such case is that of Dr. Howard Levy, an army doctor and officer who had been treating dermatological conditions among Green Berets, the Special Forces of the U.S. Army, when they returned from duty.50 In 1967, which could be considered both a watershed year in terms of a rising voice among servicemen and a preface to the growing instability and discontent back home, Levy disobeyed a direct order, was court-martialed, was given three years hard labor, and dishonorably discharged.51 As a physician, he realized that he wanted to preserve life, not to train Special Forces medics who would use their knowledge to “win over the confidence of the [Vietnamese] people… and [then] move in and militarize the village.”52 Particularly interesting about the

Zhu 14 officer’s case are the facts that he was sentenced so harshly and that he had a long history of insubordinate behavior stemming from the fact that he disagreed with the structure and principles of the military and its actions in Vietnam. In truth, “by the time [he] went into the Army in 1965 [he] was so staunchly opposed to the war in Vietnam that [he] just anticipated that somewhere along the way [he would] have trouble with the Army.”53 Levy’s foreshadowing and intuition that he would eventually be charged under Articles 90, 133, and 134 may have come from the knowledge that he had already been a relatively unorthodox officer: in an interview with James Finn, he stated that he was a “sloppy soldier” in terms of adhering to military dress regulations, spoke back to ranking officers, and refused to join the Officer’s Club.54 Perhaps it was this experience and attitude toward regulations he thought were meaningless that eventually drove Levy to oppose the Vietnam War through his personal take on conscientious objection.

A common theme in his interview revolved around the overemphasis on traditions and vague or too-specific rules in the UCMJ; as Levy detailed his frustration with the justice system, it was clear that he found certain aspects of the document both absurd and historically unfounded.

He pointed out that Article 133, which states that “conduct unbecoming an officer and a gentleman” is punishable by the UCMJ, covers a vast range of offenses including “everything from murder to fornicating birds.”55 Though certainly an extreme example, Levy’s analysis indicates that even in the middle of the Vietnam War, significant gaps in the details of the UCMJ were affecting soldiers charged with crimes—as of today, Article 133 has not been made more specific. Nor has it been revised to include enlisted men or female solders. Reflecting on his experience, Levy stated in an interview that he felt “the Uniform Code is really a fiction. It may be uniform but it has nothing to do with justice,” as the fundamental issues of the UCMJ and military law at large could never be reformed56 to the point where a strong, efficient military

Zhu 15 system and liberal values demanded by society could coexist. Given the fact that over “ninety percent of all courts-martial led [to] ‘Federal Court Conviction’—an insurmountable stigma,” the judicial proceedings endured by Levy and his contemporaries seemed predetermined and, thus, unjust.57 That is, it appears that soldiers who faced disciplinary consequences under the UCMJ were sometimes also tried and sentenced as civilians as well. Specifically and condemningly, Levy believed that the federal courts would be far more equitable when dealing with political issues than the military courts had been, especially considering that the freedoms guaranteed by the First Amendment “are just certain rules that… [the federal courts] can’t ignore. But in the Army these are all irrelevant.”58 To a soldier, the discrepancy must have felt patently unfair and discouraging.

Stories like Levy’s were common during the first half of the Vietnam War. Individuals like Second Lieutenant Henry Howe, an officer who protested the Vietnam War in 1965,59 and Roger L. Priest, a soldier in the navy who wrote and distributed anti-war material around the same time,60 typically worked alone—just like Howard Levy. Ultimately, the movements of these individuals spurred on groups of their peers to protest and be punished. Though the UCMJ had been challenged and often prevailed during the first half of the war, the prevalence of instances of insubordination later on led to major, publicized legal battles.

The Middle of the War: Those AWOL and Imprisoned As the Vietnam War dragged on, the numbers of men who went AWOL(Absent Without Official Leave), were imprisoned, or were discharged rose proportionately. In 1966, about 57 men per thousand army soldiers went away without leave, yet by 1973, that number had almost tripled.61 The Marines had perhaps the highest rates of attrition, with an unauthorized absence rate of 23% and a desertion rate that was the highest among all the services by the time the

Zhu 16 Vietnam War ended.62 The vast amount of cases meant that the UCMJ and, more specifically, the JAG corps were unable to handle the load, often leading to inconsistent punishments and not enough investigation. Paralleling the deployment of Marines to Vietnam, the number of military lawyers and legal aides was augmented as well. Even when the JAG corps swelled enough that it could handle the heavy caseload of the war, “Vietnam courts-martial were routinely tried in mess halls, officers’ clubs, staff offices, chapels—any place with sufficient seating space.”63 Since many of the cases were tried on the spot, technical difficulties were common as well. In one case, even though a blackout prevented a complete recording of case proceedings and the creation of a transcript, the officer in charge of the unit made a decision regardless.64 Like the technology available overseas, perhaps the UCMJ was a tad outdated. The AWOL numbers were sometimes so high that, by 1971, the Army took to allowing “early discharges to Vietnam veterans and other short-timers” to mitigate the problem, while a “disciplinary crackdown” that occurred around the same time65 might have been employed to simplify the problem that the military had to deal with.

A certain high-profile case during the Vietnam War actually took place at home, in the Presidio in San Francisco, home to AWOL soldiers, war protestors, and more threatening military criminals. On the morning of October 11th, 1968, a prison guard shot a young and possibly mentally ill soldier named Richard Bunch who had been serving time in the fort for going AWOL from Fort Lewis. Some speculators and peers of Bunch who were similarly imprisoned in the Presidio suggest that his death was actually a calculated suicide attempt.66 Whatever the reasoning, his death spurred other men, later known as the Presidio 27, to protest both the event and the Vietnam War at large. That same night, soldiers who had originally been imprisoned for being AWOL began to plan what would turn into a prison riot, quickly quelled by guards.67 When the prisoners were gathered together, the commander of the Presidio addressed

Zhu 17 them. Perhaps because he was young and did not quite understand the UCMJ, perhaps because he hoped to bring some gravitas to both the situation and the code of law, and perhaps because his commander told him to do so, twenty-five year old “Captain Lamont walked out in front of the formation with a red manual in his hand, one finger holding a certain page,” and “then, poignantly, he opened his UCMJ to Article 94 and read it aloud.”68 The symbolism of reading the mutiny act to the men of the Presidio is interesting; it marks a small, almost insignificant shift in mindset among officers. Lamont and his superior, Lieutenant Colonel Ford, imposed upon the UCMJ centuries of tradition—of reading out a charge and a sentence to men who were not yet officially arrested, accused, and tried for the riot.

A more humorous anecdote that emerged from the Presidio was the case of a man named Michael Marino, who “‘had the ability to go into a death sleep,’ one friend related, ‘which drove the guards crazy, because you can't charge a man with disobeying an order he doesn't hear.’”69 Marino’s peers would later adopt his strategy by singing hymns together, drowning out the orders of the guards who were trying to impose order. Article 92 of the UCMJ, along with a few other related articles, does provide for certain small loopholes like the one Marino knowingly or unknowingly took advantage of. For example, the article concerning failures to obey orders or regulations, but is fairly ambiguous with regard to the need to have knowledge of an order prior to being charged with disobeying it; in fact, Section 2 of Article 92 specifically states that unorthodox orders must be acknowledged beforehand by the soldier if he is to be later accused of insubordination.70 It was not just the prisoners who were finding ways to circumvent the UCMJ, as officers and guards also attempted to find loopholes in an antiquated document. In a legally and technically correct manner, the “Army reacted shrewdly, acquitting several of the defendants,

Zhu 18 handing out a few bad-conduct discharges, and sentencing no one to more than nine months… [but] there was considerable harassment of the forty-three, and a number of men pulled extra stockade time for offenses such as being late for reveille.”71 Essentially, there was a sort of additional justice meted out by Presidio officers who felt that military law had not quite been served to the protestors. Thus, the UCMJ failed twice: firstly, the men were either charged for a crime that should not have been a crime—free speech—or they were given too light of a sentence for the supposed mutiny. Secondly, additional abuses were permitted outside the scope of the UCMJ that went unaddressed. Though the code was supposed to offer security, administration and oversight was too widespread to prevent all abuses of power.

Momentum at the End: Wide-Ranging Protests As the war dragged on longer, the protesters became louder. Unified anti-war movements, however, did not necessarily guarantee freedom from persecution under the UCMJ and full protection in front of the law—even when said demonstrations occurred outside of a war zone, on American soil. A group known as Vietnam Veterans Against the War (VVAW) was particularly active on the home front, organizing mass gatherings as early as 1966.72 Perhaps it was because free speech in Vietnam itself was “isolated and risky”73 that veterans chose to organize at home instead, but it was certainly true that protests began gathering momentum only toward the end of the war for two main reasons: first, until 1970 or so, most ex-soldiers supported the war and the president and second, the media focused more on the smaller protests within Vietnam, not only those taking place at home.74 Back in Vietnam, troops were drawing from the energy of homegrown movements. The VVAW and other groups enlisted B-52 bombers and various Air Force pilots to drop anti-war leaflets on the men and women serving in Vietnam. Soldiers were encouraged to do “everything

Zhu 19 you can legally to irritate higher-ups” in objection to the human rights abuses that occurred over the course of the war, and many organized their own newspapers and resistance movement.75 However, unlike the more established groups that existed in America, GI groups at the front had to face far more obstacles that related not only to their environment, but also to their unique legal situation. As Cortright recalls, “activism is difficult even under the best of circumstances, but within the Draconian legal structure of the military it can be suicidal,” as officials pursued the most extreme punishments when troops sought to exercise their right to free speech and assembly.76 Sometimes, troops were not even interested in protesting, as organizers of a 1971 rally at Chu Lai, an American military base in Vietnam, found out. Supposedly, the thousand or so troops that attended the July 4th gathering were supposed to engage in a “political demonstration”; unfortunately, it soon turned into a “huge picnic” and “the largest pot party in the history of the Army.”77 An Evaluation: How Did the UCMJ Stand Up? A convenient and interesting effect of reforms to the code is the fact that a revamping of the UCMJ would be ideal on a practical level, not just an ideological one. As a former lawyer for the JAG corps and later a law professor, Robinson Everett noted that in “combat areas some streamlining of military justice might be appropriate to conserve resources.”78 As Lieutenant Colonel Gary D. Solis, a member of the JAG Corps and later a law professor and court-martial judge, wrote, the UCMJ “worked in the sense that thousands of courts-martial were tried,” but implied that perhaps not all cases were tried equally or should have even been considered in the first place.79 Also of note is the concept of a top-down approach to military justice that hindered some of the lower ranking officers. Captain Brendan Sullivan once noted during the trial of the

Zhu 20 Presidio 27 that “in these proceedings it's been captains trying to enforce the code against the wishes of majors, colonels, and at least one general. Whom do you think the odds favor?”80 Even during the creation of the UCMJ, the military brass objected to a liberalization of military justice; the document is indeed hampered by the same hierarchical structure that it maintains and preserves. Perhaps the officers had a cogent point to make, as JAG Corps Colonel Donald E. Holben once pointed out that the UCMJ “did not adequately support command,” and many of his peers agreed that the code in fact permitted the insubordination that proliferated among troops during the war.81 As a counterpoint to Solis and Everett’s arguments that reforms of the UCMJ were necessary to preserve not only liberties but also efficiency, a civilian and former military lawyer named F. Lee Bailey noted that “‘despite all the criticism leveled at the military, the odds are that a military court will produce a more accurate verdict… than a civilian jury’” simply because, in 1950, the UCMJ called for multiple appellate reviews.82 However, it is important to recognize that Bailey himself was a prominent defense lawyer known for representing both an officer involved in the My Lai massacre, O.J. Simpson, and other notable defendants before being disbarred in two states—perhaps Bailey’s perception of an “accurate verdict” is colored by not only his experience as a military law scholar but also by his time as an attorney in the private sector. There is evidence that supports his claims. Before the Vietnam War, in fact, it was fully admitted during a one-year review of the code that it allowed the average soldier “more opportunity to assert his innocence or more privileges of appellate review” than most civilians who went through a trial process in a civilian court.83 Yet this 1952 analysis, conducted in the middle of what, legally speaking, was a fairly uncomplicated war, represents an oversimplified outlook. Though law analysts like Bernard Landman predicted “many of the present problems,

Zhu 21 particularly at the trial level, [would] vanish” after the Korean War, the prevalence of discontent throughout the course of the Vietnam War provides evidence to the contrary.

Also worrisome is the fact that a clause in the UCMJ allows for extra powers in times of war. For example, designating that a nation is in a “state of war” allows the extension of “military jurisdiction over a significant number of civilians not otherwise subject to military control.”84 Further designations of where a war is being fought could cause civilians to be subjected to the UCMJ even if they are outside of Vietnam.85 Considering that draftees who served toward the end of the war had spent more time at home and thus were exposed to more anti-war culture, it makes sense that later movements had a different flavor of insubordination and that the line between soldier and civilian had blurred. Colored by the movements and sentiments of their peers still in America, those fighting in Vietnam sought to pursue a citizen’s rights even as individuals not associated with the military were punished as soldiers.

Citizens will always push boundaries. After all, a mix of restlessness, insolence, and independence is precisely the basis of America’s rugged individualism. It is important to remember that sometimes, insubordination is an unwarranted act by a soldier who is not too fond of authority. Sometimes, insubordination is legitimate, as it challenges flawed laws and expectations, ultimately strengthening society and structure. And sometimes, both an insubordinate soldier and an established code can be in the right, ensuring that a nation and its government are accountable for wartime actions. How ironic that, during the Vietnam War and the myriad other U.S. conflicts, the soldiers fighting to protect American rights are denied them: many troops are classified as “insubordinate” precisely because they exercise a citizen’s right to free speech, free press, trial by an impartial jury, and much more.

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Notes 1

David Cortright, Soldiers in Revolt: The American Military Today (Garden City, NY: Anchor Press/Doubleday, 1975), 4-5.

2 Aycock and Wurfel, 8-9.

3 Aycock and Wurfel, 11.

4 Gardner, 220-221.

5 Aycock and Wurfel, 14.

6 William T. Generous Junior, Swords and Scales (Port Washington, NY: Kennikat Press, 1973), 3.

7 Generous, 3.

8 Solis, 3.

9 Generous, 23.

10 Generous, 25.

11 Generous, 34.

12 “Justice in the Military� by Edward F. Sherman, quoted in James Finn, ed. Conscience and Command: Justice and Discipline in the Military (New York: Random house, 1971), 27-28.

13 Generous, 25.

14 Sherman in Finn, 27-28.

15 Sherman in Finn, 29-30.

16 Gary D. Solis, Marines and Military Law in Vietnam: Trial by Fire (Washington, DC: History and Museums Division of the U.S. Marine Corps, 1989), 241.

17 The Yale Law Journal Company, Inc., "Judicial Checks on Command Influence under the Uniform Code of Military Justice," The Yale Law Journal 63, no. 6 (April 1954): 880, accessed August 25, 2010, http://www.jstor.org/stable/793791.

18 Gardner, 220-221.

19 Gardner, 220-221.

20 Cortright, 31.

21 Cortright, 31.

22 Cortright, 7.

23 Cortright, 20.

24 Cortright, 31.

25 Cortright, 32.

26 Cortright, 32.

27 Cortright, 29.

28 William B. Aycock and Seymour W. Wurfel, Military Law Under the Uniform Code of Military Justice (1951; repr., Chapel Hill, NC: University of North Carolina Press, 1955), 310.

29 Fred Gardner, The Unlawful Concert: An Account of the Presidio Mutiny Case (New York: Viking Press, 1970), 6.

30 Gardner, 6.

31 Sir! No Sir!, directed and written by David Zeiger, Balcony Releasing, 2005.

32 Aycock and Wurfel, 284-287.

33 Aycock and Wurfel, 285.

34 Cortright, 24-25.

Zhu 23

35

Andrew Carroll, ed. War Letters: Extraordinary Correspondence from American Wars (New York City: Scribner, 2001), 424-425.

36 Carroll, 425.

37 Sir! No Sir! 38 Cortright, 28-29.

39 Cortright, 28-29.

40 A letter from military defense lawyers to Secretary of the Army Martin R. Hoffmann, quoted in Rick Atkinson, The Long Gray Line: The American Journey of West Point's Class of 1966 (Boston: Houghton Mifflin, 1989), 398-399.

41 Atkinson, 400.

42 Atkinson, 399.

43 Atkinson, 399.

44 Carroll, 412-413.

45 Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline & the Law of War (New Brunswick: Transaction Publishers, 1999), 4-5.

46 Osiel, 6.

47 Robert Sherrill, Military Justice Is to Justice as Military Music Is to Music (1969; repr., New York: Harper & Row, Publishers, 1970), 1.

48 Osiel, 315.

49 Gardner, 4.

50 Sir! No Sir! 51 Finn, 161-162.

52 Finn, 175.

53 Finn, 163.

54 Finn, 167-9.

55 Finn 173.

56 Finn, 183.

57 Gardner, 220.

58 Finn, 174.

59 Finn, 55.

60 Finn, 191.

61 Cortright, 12.

62 Cortright, 12-13.

63 Solis, 18.

64 Solis, 18.

65 Cortright, 11.

66 Gardner, 69.

67 Gardner, 78.

68 Gardner, 79.

69 Gardner, 55.

70 Aycock and Wurfel, 287.

71 Gardner, 6.

72 Hunt, 6.

73 Hunt, 7.

74 Hunt, 8.

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75

Sir! No Sir! Cortright, 50.

77 Cortright, 34.

78 Robinson O. Everett, "Did Military Justice Fail or Prevail?" review of Son Thang: An American War Crime, by Gary D. Solis, Michigan Law Review 96, no. 6 (May 1998): 1433, accessed September 19, 2010, http://www.jstor.org/stable/1290089.

79 Solis, 242.

80 Sullivan in Gardner, 111.

81 Solis, 242.

82 Solis, 7.

83 Bernard Landman Jr., "One Year of the Uniform Code of Military Justice: A Report of Progress," Stanford Law Review 4, no. 4 (July 1952): 492, accessed September 19, 2010, http://www.jstor.org/stable/1226182.

84 The Michigan Law Review Association, "'In Time of War' under the Uniform Code of Military Justice: An Elusive Standard," Michigan Law Review 67, no. 4 (February 1969): 845, accessed January 6, 2011, http://www.jstor.org/stable/1287355.

85 The Michigan Law Review Association.

76

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Bibliography Atkinson, Rick. The Long Gray Line: The American Journey of West Point’s Class of 1966.

Boston: Houghton Mifflin, 1989.

Atkinson followed the United States Military Academy’s class of 1966 as they were confronted with the Vietnam War and American society. The intimate details of a military institution allowed a better understanding of the type of officer who would be assuming control in the pivotal years between 1966 and 1973. The book also provided key information about how military personnel were educated and socialized into a hierarchical culture.

Aycock, William B., and Seymour W. Wurfel. Military Law Under the Uniform Code of Military Justice. 1951. Reprint, Chapel Hill, NC: University of North Carolina Press, 1955.

Aycock and Wurfel provided an analysis of major sections of the UCMJ, with sections dedicated to significant articles that included any changes to laws, important cases, and applications. The inclusion of information regarding when a law is applicable or has loopholes was essential to further developing the topic, as the analysis included in the book often proved useful when discussing the subtleties of the code. Furthermore, the two researchers included a historical background of the UCMJ that provides context to the document as it exists today; its influences and roots are all discussed thoroughly.

Carroll, Andrew, ed. War Letters: Extraordinary Correspondence from American Wars. New York City: Scribner, 2001.

Carroll has collected letters from every major American confrontation since the Civil War. The letters and thoughts of soldiers, presidents, and ordinary citizens should provide some context for the period analyzed in the paper—in the Vietnam War section, one soldier’s letter specifically mentions “fragging” and disobedience. The inclusion of primary sources was key to understanding the psyche of a soldier on the front lines during the war. The attitudes toward commanding officers and the war itself were particularly essential to explaining why fragging was so common, and why insubordination was so prevalent during the war.

Cortright, David. Soldiers in Revolt: The American Military Today. Garden City, NY: Anchor Press/Doubleday, 1975.

Cortright, a former GI who served in the Vietnam War and current research fellow at the Joan B. Kroc Institute for International Peace Studies, wrote Soldiers in Revolt from the dual perspectives of a working class soldier and of a scholar. Thus, his book includes passionate anecdotes and substantial statistics, analysis, and facts. Since Cortright intended Soldiers in Revolt to serve as a warning against future wars, some of the anecdotal stories and analysis had to be compared to other sources; however, the vast majority of the section discussing insubordination had extensive research that relied on official military studies.

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Everett, Robinson O. “Did Military Justice Fail or Prevail?” Review of Son Thang: An American War Crime, by Gary D. Solis. Michigan Law Review 96, no. 6 (May 1998): 1421-1434.

Accessed September 19, 2010. http://www.jstor.org/stable/1290089.

Everett’s article primarily discussed war crimes, specifically the 1968 massacre of Vietnamese civilians at My Lai. He analyzed Gary D. Solis’ description of and conclusions regarding the event and investigated the trials of each of the Marines implicated in the massacres, including any discrepancies. As such, Everett’s article provides not only a glimpse into the workings of military law proceedings, but also a depiction of the morale and rationales of soldiers who fought in Vietnam and were ordered to shoot civilians.

Finn, James, ed. Conscience and Command: Justice and Discipline in the Military. New York: Random house, 1971.

Conscience and Command contains a series of essay-chapters that discuss military justice with regard to orders from officers, first amendment rights of soldiers, and the idea of individualism in the military. More valuable are the transcripts of Finn’s interviews of several servicemen regarding the topic, including Dr. Howard Levy. Reading the transcripts allowed for a greater understanding of the depth of emotion that some soldiers and scholars felt when analyzing their experiences with the UCMJ and with the military at large.

Gardner, Fred. The Unlawful Concert: An Account of the Presidio Mutiny Case. New York: Viking Press, 1970.

Gardner wrote this account of Vietnam soldiers who were imprisoned in Presidio in San Francisco for going AWOL and appearing in war protest marches during some of the most contentious years of the war. Published in 1970, his account should serve as an example of one of the most common and interesting forms of insubordination--protesting the war itself in an often-peaceful manner. The fallout of the trial of the Presidio 27 was useful as well. Gardner included characterization of various participants in the mutinies, guards, and other associated peoples, with significant amounts of in-depth interviews and background information.

Generous, William T., Junior. Swords and Scales. Port Washington, NY: Kennikat Press, 1973.

Generous intended his book as a reference for reformers seeking to improve the UCMJ and military law at large. Comprehensive and analytic, the book discusses the political impetus behind the UCMJ and the history of the code of law. Furthermore, Generous provides an indepth take on attempts to improve the UCMJ throughout history, especially during the Vietnam War; though a military historian, Generous manages to simplify and interpret legal proceedings so that the emphasis of the book is on the historical record.

Hunt, Andrew E. The Turning: A History of Vietnam Veterans Against the War. New York: New York University press, 1999.

Zhu 27

The Turning focuses primarily on the history of Vietnam Veterans Against the War, a protest organization that formed in the spirit of insubordination that permeated the 1960s and 1970s. Hunt, a history professor, introduces the organization’s history, purpose, and development. Though much of the focus is specific to VVAW, there is also significant information regarding major protest movements, criticism of the government, and the personal philosophies of may Vietnam War veterans.

Landman, Bernard, Jr. “One Year of the Uniform Code of Military Justice: A Report of Progress.” Stanford Law Review 4, no. 4 (July 1952): 491-508. Accessed September 19, 2010. http://www.jstor.org/stable/1226182.

Bernard Landman analyzes the effectiveness of the military courts of appeal; he discusses the process for appealing and the differences between various offenses and the jurisdictional bodies used to deal with them. Furthermore, Landman congratulates the revamped court-martial system and provides an overview of the process by which a soldier might be accused and convicted. With a substantial analysis of particular court cases that occurred in the first year of the UCMJ, Landman also provides an endorsement of the code and offers recommendations for future improvement.

The Michigan Law Review Association. “’In Time of War’ under the Uniform Code of Military Justice: An Elusive Standard.” Michigan Law Review 67, no. 4 (February 1969): 841853. Accessed January 6, 2011. http://www.jstor.org/stable/1287355.

The article discusses the usage of the term “in time of war” in the UCMJ and how it applied to charging soldiers during the Vietnam War. The ramifications of this particular phrase and others analyzed by the Michigan Law Review Association are myriad, and the authors sought also to clarify specific terms and offer suggestions for modifying the UCMJ. Like Landman’s essay, the article also analyzes and carefully details the process by which a member of the military might be convicted.

Osiel, Mark J. Obeying Orders: Atrocity, Military Discipline & the Law of War. New Brunswick: Transaction Publishers, 1999.

Osiel’s work is primarily concerned with the concept of “Superior Orders,” a legal defense. However, he also explores the morality of obedience in during military endeavors and analyzes the responsibility of individual soldiers in preventing or facilitating potential unethical actions. The section of particular importance was Part III, Chapter 20, “Disobedience as Creative ‘Compliance’;” the book as a whole served as a springboard for further research though it included a fair amount of sociological analysis instead of historical.

Sherrill, Robert. Military Justice Is to Justice as Military Music Is to Music. 1969. Reprint, New York: Harper & Row, Publishers, 1970.

Political journalist Robert Sherrill’s book is based on a collection of anecdotes drawn from travelling assignments and magazines. However, though not necessarily based completely

Zhu 28

on scholarly research, Sherrill’s work contains quite a bit of information on Vietnam and the military justice system that was necessary during the Vietnam War. Not only does Sherrill provide a brief history of the UCMJ, but also he discusses its potential failings and the necessity of reform.

Solis, Gary D. Marines and Military Law in Vietnam: Trial by Fire. Washington, DC: History and Museums Division of the U.S. Marine Corps, 1989.

The author, Lieutenant Colonel Gary D. Solis, served in Vietnam as a soldier, later pursued a law degree, and became a court-martial judge in the United States. As such, the book is very much concentrated upon the role of military lawyers within the Marine Corps during the Vietnam War. The book, sponsored by the Department of the Navy, describes the major disciplinary issues plaguing the military in Vietnam as well as the responses of the lawyers and justice system. Its extensive use of firsthand documentation and photographs could prove useful in giving context to the era.

The Yale Law Journal Company, Inc. “Judicial Checks on Command Influence under the Uniform Code of Military Justice.” The Yale Law Journal 63, no. 6 (April 1954): 880888. Accessed August 25, 2010. http://www.jstor.org/stable/793791.

The article investigates the impact of command influence with regard to military justice.

The phenomena whereby the presence and interference of a commanding officer can alter the fairness of a trial, command influence is one of the major issues of the UCMJ. As such, the authors’ work in proposing a test for command influence is significant when attempting to understand the flaws of the code of law. Additionally, it is stated in the paper that mitigating command influence could best preserve the integrity of courts-martial.