trial investigation.

(Citing MCM, 1951, par 69a; U. S. v. McCormick

(No. 895), 3 USCMA 361, 12 CMR 117.).

Held also: A pretrial investigation is a quasi-judicial proceeding, the purpose of which is to inquire into the truth of the matters set forth in the charges and to secure information upon which to determine what disposition should be made of the case and since the pretrial investigation is to secure information the investigator is not bound by the strict rules of evidence in his investigation. NCM 276, Yuille (1953) 14 CMR 450.

The accused was tried by general court-martial for desertion. He pleaded guilty to and was found guilty of the lesser included offense of absence without leave. Before the accused pleaded, the defense counsel moved for a continuance or other appropriate relief as may be granted on the ground of asserted defects in the preliminary investigation pursuant to UCMJ, Art 32. The law officer offered to grant a continuance if counsel desired to examine witnesses or prepare his case further. Defense counsel refused, demanding a complete new investigation. The defense subsequently clarified his motion as a demand for a full pretrial investigation before a different investigating officer. The motion was denied. It was contended that the accused was prejudiced in that he was tried by a general court-martial rather than a special court-martial and for desertion instead of AWOL. Held: A substantial failure to comply with the requirement of UCMJ, Art 32, cannot affect the validity of the subsequent court-martial trial unless it can be shown that the pretrial errors prejudiced the accused at the trial. Where, as here, the accused was convicted of no more than what he pleaded guilty to and he received a fair and moderate sentence no prejudice resulting from any defects in the preliminary investigation is observable. (Citing Earle, The Preliminary Investigation in the Army Court-Martial System, 18 G W Law Rev, 67; Henry v. Hodges, 171 F2d 401; Smith v. Hiatt, 170 F2d 61, revd sub nom Humphrey v. Smith, 336 US 695, 93 L ed 986, 69 S Ct 830; Index and Legislative History, UCMJ, House Hearings, pp 993–1002; Legal and Legislative Basis, MCM, 1951, pp 53–54.) The possibility that the accused might have been tried at a special courtmartial instead of by general court-martial was not a matter affecting the question of legal prejudice at the trial. Accordingly, assuming that everything asserted by the defense had been established as fact, the validity of the proceedings would still have been unimpaired. (Cf. ACM 6653, Mercer, 11 CMR 812.) Furthermore, the defense motion demanded more than the law officer was empowered to grant. Assuming that a substantial failure to comply with the requirements of Art 32 has been brought to the attention of the law officer, he can either grant a motion for a continuance to enable the accused to prepare his defense properly or he can adjourn the proceedings and refer the noncompliance with Art 32 to the convening authority for curative action (MCM, 1951, par 69c). The law officer has no power to direct that an entire new investigation be had. Upon the facts of the instant case, in the light of the charge, the defense counsel failed to show reasonable cause for the law officer to adjourn the proceedings and

refer the question of remedying the preliminary investigation to the convening authority since nothing was shown to indicate any likelihood prejudice to the substantial rights of the accused. Accordingly, no error was committed by the law officer in his disposition of the motion. CGCM 9805, Bolton (1954) 15 CMR 579.

of

$41.7. Defense counsel.

The

failure to provide the accused with counsel at the pretrial investiand fully comply with the provisions of UCMJ, Article 32, not constitute an error of law materially prejudicial to any of the substantial rights of the accused where the accused was well

gation,

did

represented by competent counsel at the trial, the accused's defense was clearly and forcibly presented, the defense counsel, prior to trial, had interviewed witnesses, he had additionally inspected and studied the geographical location of the offenses and was well prepared to proceed, and although the accused made a written statement at the pretrial investigation, neither this statement nor any other statements made at that time were introduced at the trial and the members of the court-martial had no knowledge of any matter contained in the pretrial investigation as such and decided the accused's guilt or innocence on the basis of the testimony of the witness who appeared before them. (Citing CM 229477, Floyd, 17 BR 149, 153–156; ACM 1893, Burns (BR) 4 CMR (AF) 907, 920; Humphrey v. Smith, 336 US 695, 93 L ed 986, 69 S Ct 830; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; UCMJ, Art 59(a); Index and Legislative History, UCMJ, House Hearings, pp 998-999; MCM, 1951, pars 34a, 69c; ACM 5619, Woodworth, 7 CMR 582; distinguishing ACM 6152, Vanderpool, 10 CMR 664.) ACM 6653, Mercer (1953) 11 CMR 812.

them

At the first session of the investigation pursuant to UCMJ, Art 32, the accused was advised of his right to counsel and he said he had retained civilian counsel. When subsequent requests for postponements due to unavailability of civilian counsel were denied, the accused objected to the continuance of the proceedings, refused to call or examine any witnesses and objected to his military counsel examining witnesses. However, on one or two occasions the military counsel did interrogate witnesses. On two occasions the accused said he had retained two different civilian attorneys but neither of ever appeared for him. A third attorney finally did appear for him and indicated his satisfaction with the proceedings in so far as he participated in them. Held: From all the foregoing, it is clear that a contention that prejudicial error resulted because the accused was denied individual counsel of his own choice during the Art 32 investigation is not supported by the record. Although the accused insisted that he desired to be represented by civilian counsel his insistence thereon was apparently part of a well-conceived plan to impede and hamper the proceedings against him since initially he claimed he had retained one attorney, subsequently asserted he also retained another, and neither of these persons ever appeared on his behalf. A third attorney did appear and was apparently satisfied with the investigations. Further, the accused was represented by

qualified military counsel. UCMJ, Art 32(d), expressly provides that failure to follow the provisions of the Article shall not constitute jurisdictional error. However, a failure to comply substantially with the requirements of the Article may be grounds for reversal if it appears that such failure has resulted in prejudice to the substantial rights of the accused at the trial. (Citing MCM, 1951, par 34a; Hearings before Committee on Armed Services on H. R. 2498, 81st Cong, 1st sess (1949), pp 998-1003; Legal and Legislative Basis, MCM, 1951, pp 53, 54; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99; ACM 1893, Burns (BR), 4 CMR (AF) 907, 920; ACM 4455, DeAngelis, 4 CMR 654, 722; ACM 6653, Mercer, 11 CMR 812; see also Humphrey v. Smith, 336 US 695, 93 L ed 986, 69 S Ct 830; Romero v. Squier, 133 F2d 528, cert den 318 US 785, 87 L ed 1152, 63 S Ct 982.) However, the accused was not prejudiced in any manner at his trial by reason of the claimed defect in the pretrial investigation since his counsel conducted a vigorous and forceful defense indicative of an intensive study of all the probable questions of law that would arise during the trial, each of the prosecution's witnesses was subjected to intensive cross-examination, the defense counsel indicating that he was completely familiar with the contents of all the pretrial statements made by the witnesses, and other than asserting that the accused was not afforded his rights of representation by civilian counsel of his choice, the defense made no claim or showing that the accused's defense was impaired in any manner by the claimed irregularity. (Citing ACM 6653, Mercer, 11 CMR 812.) Furthermore, the failure to await the convenience and pleasure of the accused's civilian counsel did not constitute an irregularity since although an accused has the right to be represented by civilian counsel of his own choice at an investigation, such right is circumscribed by the admonition that an investigation will not be delayed if the accused is unable to provide civilian counsel of his own selection within a reasonable time after having been given an opportunity to obtain such counsel. (Citing MCM, 1951, par 34c, p 46). ACM 7395, Westergren (1953) 14 CMR 560.

§ 43.3. Qualification.

§ 43. Investigating Officer

Appointment of the accuser as investigating officer is an error of law (MCM, 1951, par 34). However, such error is not jurisdictional (Cf. Legal and Legislative Basis, MCM, 1951, pp 53-54; UCMJ, Art 32 (d)). Moreover, in this case no objection was taken nor did any facts appear indicating that any right of the accused was injured by the appointment and the error was therefore harmless. CGCM 9797, Lloyd (1953) 11 CMR 660.

$13.5. Declaration of intention.

The question arose as to whether Immigration and Naturalization Service Form G-237B, entitled Receipt of Application for Naturalization, may properly be accepted as evidence of a legal declaration of intention to become a citizen, thereby establishing eligibility for enlistment in the Regular Army in accordance with pars 4 and 11, SR-615-105-1, 6 June 1952. The filing of a declaration of intention is no longer a mandatory prerequisite to the filing of a petition for and the granting of naturalization (subsec 334(f), Immigration and Nationality Act (the McCarran Act), PL 414, 82d Cong). The Immigration and Naturalization Service, however, uses Form N-315, entitled Declaration of Intention, in those instances where an alien elects to declare his intention prior to applying for naturalization. Neither of the forms in question is evidentiary of eligibility for naturalization, nor are such forms necessarily indicative of lawful admission for permanent residence within the meaning of Immigration and Nationality Act, supra. The Act of 1 Aug 1894, 28 Stat 216, 10 USC 625, ML 1949, sec 247, which was not repealed or amended by the Immigration and Nationality Act, supra, provides: "In time of peace no person who is not a citizen of the United States, or who has not made a legal declaration of his intention to become a citizen of the United States, shall be enlisted for the first enlistment in the Army." And pertinent regulations provide that aliens, except applicants who have made legal declaration of their intention to become United States citizens, are ineligible for enlistment (SR 615-105–1, 6 June 1952). Since the Act of 1 Aug 1894, supra, is applicable to the instant case, and such act has not been repealed, since under the Immigration and Nationality Act, supra, an alien must still elect to execute a declaration of intention consistent with the requirement of the Act of 1 August 1894, supra, and since Form N-315 is still authorized and is the appropriate form under the circumstances, Form G-237b may not properly be accepted as evidence of a legal declaration of intention to become a citizen. The instant conclusion does not place an undue burden on applicants for enlistment in the Army since a declaration of intention may be made and signed in the office of the clerk of any naturalization court regardless of the alien's place of residence in the United States (subsec 334 (f), Immigration and Nationality Act, supra). JAGA 1953/1476.

16 February 1953.

An alien, who enlisted in the Regular Army under the Act of 30 June 1950 (64 Stat 316, PL 597, 81st Cong), sought assignment for helicopter training with the Transportation Corps under the provisions of a Department of the Army letter, which stated the requirements for such training. The letter provided that upon successful

completion of the course of training the student would be appointed a temporary warrant officer under the provisions of AR 610-15, dated 17 Nov 1950, as changed. Subpar 3a (5), AR 610-15, supra, provides that an appointee must "be a citizen of the United States or an alien who has made legal declaration of intention to become a citizen of the United States."

Held that:

enlistment by an alien under the provisions of the Act of 30 June 1950, supra, which permits the enlistment of aliens in the Regular Army and by sec 4 thereof confers on such enlistees the benefits of sec 324A of the Nationality Act of 1940 (54 Stat 1149), as amended (8 USC 724a, ML 1949, sec 561), does not constitute a legal declaration of his intent to become a citizen. Section 324A of the Nationality Act of 1940, supra, exempts certain classes of persons with military status from many of the procedural requirements of the Nationality Act of 1940 (54 Stat 1149), as amended (8 USC 724A, ML 1949, sec 561). However, nowhere is it provided that an enlistment under the Act of 30 June 1950, supra, will constitute a legal declaration of intent to become a citizen.

- furthermore, enlistment under the Act of 30 June 1950, supra, will not, in and of itself, constitute a bar to filing a declaration of intent to become a citizen.

- if the enlisted man in question files a declaration of intent to become a citizen and is otherwise qualified, he may apply for helicopter training.

in this connection, it is to be noted that there is no statute dealing with the training of individuals as helicopter pilots and no statutory prohibition against the appointment of an alien as a temporary warrant officer. Therefore, regulations which require that applicants for helicopter training be citizens or declarant aliens, being administrative in nature, and not implementation of any statute, may be waived or changed and if this be done, there would be no legal objection to accepting the application of the subject enlisted man.

despite the fact that there may not be a waiver of the citizenship provision contained in AR 610-15, supra, there would be no legal objection to changing these regulations so as to permit nondeclarant aliens to be appointed as temporary warrant officers. JAGA 1952/9746. 7 January 1953.

§ 17. Immigration, Exclusion, and Deportation

§ 17.1. Generally.

A former prisoner was sentenced by general court-martial to dishonorable discharge (suspended), total forfeitures, and confinement for four years for absence without leave. His sentence to confinement was remitted in October 1949, effective upon his delivery to the Immigration and Naturalization Service, Department of Justice, for the shipment of the former prisoner, a national of Poland and an extremely undesirable alien, to Germany. However, on the