GEN Dwight Eisenhower (Photo courtesy of author)
Lore of the Corps
JAG Department to JAG Corps
Why Did It Happen?
By Fred L. Borch III
Why does the Army have a Judge Advocate General’s Corps today?
Or, to phrase the question another way: Why did Congress abolish The
Judge Advocate General’s
Department(JAGD)—which had existed since 5 July 18841—to create a “Corps” of uniformed lawyers on 1 February 1949? The answer is that Congress was convinced after World War II that “the Army system of justice” must be improved with reforms to the Articles of War.2 As these reforms would require many more uniformed attorneys, and greater participation by these judge advocates (JAs) in court-martial proceedings, it was time for a “professional” and “separate corps of [JAs]” that would be more “independent” and less susceptible to improper control by commanders.3 Why the Army created this new Judge Advocate General’s Corps (JAGC), and how Congress thought it would improve military justice in the Army, is the subject of this Lore of the Corps.
During World War II, the Army convicted some 1,700,000 Soldiers at courts-martial; 80,000 of these trials were by general courts-martial.4 When one realizes that the Army tried only about 500 courts-martial in 20215—both general and special courts—it should be apparent that military justice in the Army in the 1940s was remarkably different from today. As a House Committee Report noted in 1947, “approximately 90 percent” of the work done by Army lawyers at posts, camps and stations “consists of matters relating directly to military justice and . . . more than 50 percent of [JAGD] work in Washington is of the same nature.”6
But it was more than numbers, as criminal proceedings under the Articles of War were themselves very different. There was no requirement for either trial counsel or defense counsel at courts-martial to be lawyers,7 and most were not.8 Additionally, while the 1920 Articles of War in effect in World War II called for every general court-martial to have a law member (the forerunner of today’s military judge, albeit with much less authority over the trial), this was not an absolute requirement.9 As a result, general courts-martial for serious offenses like murder, rape, and robbery routinely had no legally qualified personnel participating in them. As Congress saw it, this lack of professional legal participation meant a lack of due process for an accused Soldier at a military tribunal, and most members of Congress—and the American public—believed that requiring lawyers at general courts-martial would result in more due process and consequently a fairer and more just outcome.10
Complaints about the unfairness of the Articles of War, especially the absence of legally qualified defense counsel and pervasive command influence at all levels, spurred Congress to implement reforms to the Articles of War. For the first time in history, both trial and defense counsel at general courts-martial were to be members of the JAGD, as was the law member.11
While legally-qualified personnel were not part of the special court-martial process (and would not be until 196912), the new requirement for uniformed lawyers at general courts-martial under the revised Articles of War necessarily meant a much larger JAGD.13 A majority in Congress also believed that this required a more “professional” body of uniformed attorneys—and they viewed the JAGD as insufficiently professional.14 These same members of Congress also determined that JAs needed to be more independent from the chain of command so as to reduce the ability of commanders to interfere with court-martial proceedings through command influence, and they sought to accomplish this goal by including a statutory language that gave The Judge Advocate General (TJAG) the power over all JA assignments.15
While one might think that having a new JAGC would meet with approval, there was fierce pushback. Secretary of War Robert B. Patterson testified in opposition.16 General of the Army Dwight D. Eisenhower, then serving as Army Chief of Staff, also testified against the proposal.17
The two men apparently were satisfied with the status quo of a
department and did not like the idea of a separate—and more
independent—organization in the Army. Some who argued against a Corps
also claimed that the effort was “another attempt to establish special
privileges for another professional group.”18
In the end, the reform-minded Congress prevailed. Prior to the enactment
of the Selective Service Act in 1948, the peacetime authorized strength
of the JAGD—by statute—was “one Judge Advocate General with the rank of
major general and one hundred and twenty-one officers in grades from
colonel to captain, inclusive.”19 The Selective Service Act radically altered the role of lawyers in the active Army, as it contained language creating a Judge Advocate General’s Corps with two Regular Army major generals (as TJAG and Assistant TJAG) and three brigadier generals.20 Since these general officer positions were statutory, there would no longer be the situation like that which existed in early 1947, when Major General (MG) Thomas H. Green was the only general officer in the entire JAGD and was begging the Army’s leadership for another general officer to assist him in carrying out his duties as TJAG.21
MG Thomas H. Green (1949) (Photo courtesy of author)
As for commissioned officers in the newly-created Corps, Congress decreed that the numbers were to be determined by the Secretary of the Army, but that the minimum number of judge advocates “shall be not less than 1 ½ per centum of the authorized active list commissioned officer strength” of the Army.22
For the first time in history, legislation also provided that the Corps would have warrant officers and enlisted personnel “in such numbers as the Secretary of the Department of the Army may determine.”23 Prior to this time, warrant officers and enlisted Soldiers were detailed to the Department as “clerical assistants,” but they were not a part of it.24 While the Army’s leadership would determine just how many Soldiers would serve in the Corps, Congress was telling the Army that it expected the Corps to have such personnel assigned to it.25
When examining the need for a corps instead of a department, some members of Congress had also argued that the new JAGC needed its own separate promotion lists, so that it would be even more insulated from command influence.26 Opposition from the War Department and then-TJAG, MG Thomas H. Green, doomed this proposal.27 Ultimately, the Corps would get its own promotion lists—but not until the 1970s and for an entirely different reason.28
When examining the need for a corps instead of a department, some members of Congress had also argued that the new JAGC needed its own separate promotion lists, so that it would be even more insulated from command influence.
On 1 February 1949, the JAG Department became the JAG Corps. The differences were both important and substantial: the Corps’s general officer leadership now had a robust statutory basis and the minimum number of officers in the Corps likewise had a firm legal basis. No longer would the number of uniformed lawyers and the personnel framework under which they operated be determined by the Army’s military and Civilian leaders. On the contrary, Congress had decided the issue and made revolutionary changes because it concluded that the administration of military justice required it. While some observers may have questioned the need to create a JAG Corps in 1949, the role played by judge advocates, legal administrators, and paralegal specialists in the Army today indicates that the decision was a wise one. 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. An Act to Consolidate the Bureau of Military Justice and the Corps of Judge-Advocates of the Army, and for Other Purposes, ch. 218, 23 Stat. 113 (1884).
2. See H.R. Rep. No. 80-1034, at 4 (1947) (“Amending the Articles of War to Improve the Administration of Military Justice, to Provide for More Effective Appellate Review, to Insure the Equalization of Sentences, and for Other Purposes”).
3. Id. at 10.
4. The Judge Advocate General’s Corps, The Army Lawyer: A History of The
Judge Advocate General’s Corps 1775-1975, at 191-92 (1976) [hereinafter The Army Lawyer].
5. Off. of the Judge Advoc. Gen., U.S. Army, Report to Congress: U.S.
Army Report on Military Justice for Fiscal Year 2021
app. (31 Dec. 2021).
6. H.R. Rep. No. 80-1034, at 10 (1947).
7. See Articles of War, art. 11, 41 Stat. 787, 788 (1920).
8. H.R. Rep. No. 80-1034, at 10-11 (1947).
9. See Articles of War, art. 8, 41 Stat. 787, 788 (1920) (“[T]he law member . . . shall be an officer of the Judge Advocate General’s Department, except that when an officer of that department is not available for the purpose the [convening] authority shall detail instead an officer of some other branch of the service. . . .”).
10. H.R. Rep. No. 80-1034, at 8, 10 (1947).
11. See Selective Service Act of 1948, Pub. L. No. 80-759, § 206, 62 Stat. 604, 628.
12. See Manual for Courts-Martial, United States ch. II, ¶ 4 (1969).
13. See H.R. Rep. No. 80-1034, at 11 (1947).
14. See id. at 10.
15. A. B. Butts, The Judge Advocate General’s Corps of the United States Army, 21
Mississippi L.J. 203, 219 (1950).
16. H.R. Rep. No. 80-1034, at 9 (1947).
17. Id.
18. Id.
19. 10 U.S.C. § 61 (1934).
20. Selective Service Act of 1948, Pub. L. No. 80-759, § 246, 62 Stat. 604, 643 (1948).
21. Fred L. Borch III, A History of the No. 2 Lawyer in the Corps, Army Law., no. 3, 2021, at 16, 16-17. The Army’s Judge Advocate General today is a lieutenant general, but this rank is not required by statute.
22. § 246, 62 Stat. at 643.
23. Id.
24. U.S. War Dep’t, Gen. Order No. 27, para. XII (22 Mar. 1918).
25. Butts, supra note 15, at 204.
26. See H.R. Rep. No. 80-1034, at 8 (1947).
27. See id; § 246, 62 Stat. at 643.
28. See Fred L. Borch III, The History of Separate Boards for Judge Advocate Field Grade Officers, in Lore of the Corps: Compilation from The Army Lawyer 2010-2017, at 35, 35 (2018).