In Saigon, circa 1969, from left to right stands COL Tom Reese, COL John Jay Douglas, TJAG MG Kenneth Hodson, LTC Robert Clark, and LTC Tobin. LTC Clarke was the first Chief of TDS. (Photo courtesy of Fred Borch III)
TDS at 40
A Short History of Its Origins
By Fred L. Borch III
Forty years ago, on 7 November 1980, General Edward C. “Shy” Meyer, then serving as Army Chief of Staff, approved the permanent establishment of the U.S. Army Trial Defense Service (USATDS). This was a major development in the history of the Corps because it meant that Army lawyers serving as defense counsel were now in a separate and independent organization. Prior to the creation of “TDS,” as it is commonly known, judge advocates assigned to represent Soldiers at courts-martial were assigned to specific field commands, where they worked in the local Office of the Staff Judge Advocate (SJA). They were supervised—and rated—by the SJA or someone who worked for that SJA. Since the SJA worked for the convening authority, there was a perception that the military defense counsel might not be truly independent in providing legal advice and representation and that there was a potential for unlawful command influence. Since USATDS recently celebrated its fortieth birthday in November 2020, now is the time to examine how and why it came into existence.1
After World War II, and during the hearings on the enactment of the
Uniform Code of Military Justice (UCMJ) in 1950, some military justice
practitioners began agitating for the establishment of a separate
organization for defense counsel. Resistance to the idea, however, came
from both commanders and SJAs. Commanders objected to the idea of a
vertical or “stovepipe” organization that would be operating on an Army
installation. At its core, this objection was really about control. The
traditional command perspective was that it was a bad idea for a
commander to have less than complete control over units and people on
his post because such units and people may be unresponsive to command
needs. Staff Judge Advocates similarly did not like the idea that
defense counsel would be operating in their courtroom but not be under
their control. Some SJAs were offended by the proposal that a separate
USATDS would guard against unlawful command influence. These SJAs
insisted that they were always scrupulous in avoiding such influence,
and they did not believe that any perception to the contrary justified
creating a separate organization for defense counsel.
This resistance notwithstanding, in 1973 the Department of Defense Task
Force on the Administration of Military Justice recommended that
military defense counsel in all the services be removed from the
supervision of the local SJA and be placed in a separate
organization.2 The Secretary of Defense concurred and directed that the Army, Navy, and Air Force establish separate organization for their defense counsel. The following year, the Air Force and Navy complied. The Army, however, did not. As Colonel (COL) Robert B. Clarke—the first Chief of TDS—explained in a 1980 interview, Army court-martial rates were too high (over 16,600 general and special courts-martial in Fiscal Year 1974), and the Army JAG Corps’s retention of field grade officers was so low that the Corps “simply lacked the middle managers the program required.”3
This changed when Major General Wilton Persons became The Judge Advocate General in 1975, chiefly because Persons “had a keen interest in improving the quality of trial and defense counsel.”4 When he approved COL Alton H. Harvey’s concept for a “Field Defense Services Office” (FDSO), Major General Persons—together with Harvey, who was then serving as the Chief, Defense Appellate Division (DAD)—laid the foundation for a separate defense counsel organization in the Army. Activated as a sixth branch of DAD on 1 October 1976, the purpose of FDSO was to provide advice to the field “beyond that presently available from the installation senior defense counsel.” Not only did FDSO provide “timely responses to telephonic and written requests for assistance,” but it also conducted training for military defense counsel.5 The first chief of FDSO was Lieutenant Colonel Joe D. Miller, and he was assisted by Major John Renfrow and Captains (CPTs) Nicolas P. “Chip” Retson and Malcolm H. Squires Jr. In 1977, FDSO personnel traveled worldwide conducting one-day seminars at various locations. Then-CPT Squires remembered that his “proudest accomplishment” was obtaining Continuing Legal Education (CLE) credit for the FDSO seminars from the four states that actually required CLE for licensed attorneys in 1977.6
The first patch used by TDS, commonly known as the “Texaco star.” (Photo courtesy of Fred Borch III)
At the same time that FDSO personnel were educating and training military defense counsel, they were also laying the groundwork for a separate defense counsel organization. In February 1978, based on work done by FDSO, Major General Persons went to General Bernard W. Rogers, then serving as Army Chief of Staff, and requested immediate approval of a separate organization for trial defense counsel. General Rogers, however, rejected Major General Persons’s recommendation. He and other senior commanders in the Army were skeptical about the need for a separate organization for military defense attorneys and thought that “independent” defense counsel “might unfairly manipulate the criminal justice system to their own ends.”7 But, while Rogers did not approve the establishment of a separate defense counsel organization, he did authorize a one-year pilot program—to be conducted in a major Army command.
After consulting with the Commander of the U.S. Army Training and Doctrine Command (TRADOC) and obtaining his approval, General Persons launched the test program at TRADOC on 15 May 1978. The command was the logical choice for the experiment because it was “geographically compact, had no installations outside the United States and its units were not subject to deployment.”8 Much of the initial planning for the experiment within TRADOC was done by COL Daniel A. Lennon Jr., then serving as TRADOC’s SJA. Colonel Lennon put together basic planning elements for the test program, including organization and support of TDS field offices and selection criteria for defense counsel.9
The test program involved forty-one defense counsel at fifteen installations, with three Regional Defense Counsel (RDC) located at Forts Dix, Benning, and Knox supervising the defense work of these forty-one counsel. Defense counsel in the test program were tasked with providing: representation at all courts-martial; representation at Article 32 investigations; custodial and other pretrial consultations; advice on Article 15, UCMJ, actions; and representation at some administrative boards.10
General Persons’s decision to start the TDS experiment at TRADOC was timely, as an October 1978 General Accounting Office (GAO) report to Congress urged the Army to create a separate organization for defense counsel “without delay.”11 In February 1979, in hopes of using this GAO report as leverage with General Rogers, Major General Persons proposed to him that TDS be created now. General Rogers, however, refused. Still concerned that independent defense counsel might undermine good order and discipline, Rogers insisted that the test program be continued past the one-year mark.
In September 1979, based on positive feedback from both SJAs and convening authorities in TRADOC, the pilot program was expanded to all units located in the United States (including Alaska and Hawaii) and Panama. A few months later, it expanded to Europe and Korea. By January 1980, the test program was operating Army-wide.
In May 1980, after comprehensive evaluations—which included the views of all major commanders in the Army, as well as thirty-five general and fifty special court-martial convening authorities, and were overwhelmingly positive—the new TJAG, Major General Harvey, recommended to the new Chief of Staff that he approve the creation of USATDS. General Meyer hesitated, however, because he was concerned that a separate defense counsel organization seemed “at odds” with his unit cohesion policies.12 Five months later, despite any misgivings he may have harbored, General Meyer gave formal approval to the establishment of TDS on 7 November 1980.
A year later, there were about 200 judge advocates stationed in about 60 different “Field Offices.” Each Field Office was headed by a Senior Defense Counsel (SDC), and the Field Offices were grouped into nine geographic regions, with each headed by a lieutenant colonel RDC. Europe was a special situation, in that three of the nine USATDS regions were located in Germany. Three lieutenant colonel RDCs headed these regions, with a colonel stationed in Heidelberg at U.S. Army, Europe (USAREUR). He was the “Senior RDC” and had overall supervision for the three regions. Given that there were over 300,000 Soldiers in Europe during this Cold War era, and that the distance from USAREUR to TDS headquarters in Washington, D.C., was significant, this arrangement made sense—especially when it is remembered that there was no email or internet in this era and that the difference in time zones made communication by telephone difficult at times. As for the SDCs in the nine regions, they were either senior captains or majors, depending on the size of the field office.
While “a principal aim of TDS was to remove once and for all doubts, both in and out of the Army, that military defense counsel were not 100 percent loyal to their clients’ interests,”13
there was a second goal: improving professionalism. As COL Clarke
explained almost forty years ago, the issue was not that defense counsel
were not doing a good job. They were. Rather, the problem was that when
defense counsel worked for the SJA, or one of his staff, it was
difficult for that SJA “to get too close to the defense function.”14
There was fear that the judge advocate captain serving as a defense
attorney might misunderstand the motives and intentions of that SJA. The
newly established TDS would correct the “supervisory void” that some
judge advocates believed existed by “injecting field grade defense
counsel supervisors into the system.”15
In the early years of TDS, there were occasional problems with
logistical support for local field offices, since support generally
mirrored what was available to the local SJA, and this varied
considerably from post to post. Additionally, there was occasional
resistance from SJAs who were not inclined to provide sufficient
administrative support to TDS if it meant that the SJA office would
suffer shortages. Over time, however, these logistical issues were
resolved.
One final note about the early history of TDS: the relatively small size
of TDS in the larger Army meant that the unit initially did not have its
own shoulder sleeve insignia. Consequently, all personnel assigned to
TDS wore the World War II-era Army Service Forces (ASF) patch on the
left shoulder, commonly called the “Texaco Star” because of its
similarity to the white-star-in-a-red-circle insignia used by Texaco
Oil. Not until nearly 25 years later, in 2006, did the Army approve a
unique shoulder patch for TDS that its members wear today. In a
tip-of-the-hat to the old ASF patch, however, the new insignia has a
white star with a circle in its center.
Today, USATDS is headquartered at Fort Belvoir, Virginia. It is part of
the U.S. Army Legal Services Agency, which provides logistical support
to USATDS. Attorneys typically serve two-year tours as defense counsel.
The USATDS has nearly 600 Soldiers, about 160 of whom are Active
Component and over 275 of whom are Reserve Component. Reserve Component
members belong to one of three Legal Operations Detachments (LODs): the
16th LOD, the 22d LOD, and the 154th LOD. The mission of these three
organizations is to provide legal services support to commanders and
Soldiers who help sustain military operations. The Army National Guard
has also developed a thriving TDS organization with over 125 defense
counsel.16
As TDS celebrates its fortieth birthday, there is no question that it has been a phenomenal success and has improved the administration of military justice in the Army. Any concerns that some commanders may have had about “independent” defense counsel running amok and undermining good order and discipline are gone. Similarly, SJAs are comfortable with defense counsel providing services that are separate and apart from the SJA office. The TDS organization is favorably viewed by civilian criminal defense attorneys and bar associations with an interest in military law. Soldiers get first-class representation at both courts-martial and administrative hearings, and these Soldiers know that their defense counsel does not work for the SJA or the convening authority. There is every reason to think that USATDS will continue to be an integral and critical component of full and fair trials under the UCMJ. TAL
Mr. Borch is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. For a comprehensive look at the creation of the U.S. Army Trial Defense Service, see John R. Howell, TDS: The Establishment of the U.S. Army Trial Defense Service, 100 Mil. L. Rev. 4 (1983). Much of the information from this article comes from Howell’s work.
2. Id. The principal purpose of the task force was to study the effects of racism in the military justice system, as racial discrimination “was perceived to be a major problem.” Id. at 21. During the course of its work, however, the members of the task force concluded that defense counsel “were seen by many to be creatures of the command…and unduly vulnerable to command pressures.” Id. at 21. Consequently, the Report of the Task Force recommended that the services create separate defense counsel organizations. Id. at 21-22.
3. An Interview with Colonel Robert Clarke, 12 Advocate 363 (1980). The Army (then consisting of nearly 800,000 active duty Soldiers) tried 1,848 general and 14,814 special courts-martial for the period 1 July 1973 to 30 June 1974 (Fiscal Year 1974). Email from John P. Taitt, Chief Deputy Clerk of Ct., U.S. Army Ct. of Crim. Appeals to author (31 Aug. 2020, 8:32 AM) (on file with author). Compare these numbers with today’s statistics: fewer than 625 courts-martial (461 general and 161 special) were tried to completion in 2019. Id.
4. Howell, supra note 1, at 28.
5. The Field Defense Services Office: A New Source of Assistance for the
Field Defense Counsel, 8 Advocate 1 (1976), https://www.loc.gov/rr/frd/Military_Law/pdf/Advocate_Sep-Oct-1976.pdf.
6. Email from Malcolm Squires Jr., Clerk of Ct., U.S. Army Ct. of Crim.
Appeals, to author (8 Sept. 2020, 10:57 AM) (on file with author).
7. Howell, supra note 1, at 33.
8. Id.
9. U.S. Army Trial Defense Service Begins One Year Test, Army Law., June 1978, at 10.
10. Id.
11. Fact Sheet, U.S. Army Trial Defense Service, Army Law., Jan. 1981, at 27.
12. Howell, supra note 1, at 45.
13. An Interview with Colonel Robert Clarke, supra note 3, at 364.
14. Id.
15. Id.
16. “Defending Those Who Defend America”: U.S. Army Trial Defense Service-History, JAGCNet, https://www.jagcnet.army.mil/Sites/USATDS.nsf/homeContent.xsp?open&documentId=C440AF1C1F5589C285257B490069B306 (last visited Oct. 16, 2020).