Judge Advocates in Vietnam: Army Lawyers in Southeast Asia 1959-1 975

by Frederic L. Borch II I

U.S. Army Command and General Staff College Press Fort Leavenworth, Kansas 66027-6900

Library of Congress Cataloging-in-Publication Data

Borch, Frederic L., 1954Judge advocates in Vietnam : army lawyers in Southeast Asia, 1959-1975

1by Frederic L. Borch 111. p. cm.

1. United States. Army--Lawyers--History--20th century. 2. Judge advocates-United States--History--20th century. 3. Vietnamese Conflict, 1961-1 975--United States, I. Title.

KF299.JSB67 2003 343.73'01'0959709045-dc22

2003015393

CGSC Press publications cover a variety of military history topics. The views expressed in this CGSC Press publication are those of the authors and not necessarily those of the Department of the Army or the Department of Defense.

A full list of CSnCGSC Press publications, many of them available for downloading, can be found at: http://www.cgsc.army.mil/csi

http://www.cgsc.army.mil/csi

Contents Foreword .............................................................................................v

. . Introduction.......................................................................................vll Chapter 1 .Vietnam: Judge Advocates in theEarly Years, 1959-1965 ..1

Background ........................................................................ 1 Judge Advocate Operations at the MAAG. Vietnam ........2 Legal Advice to the MAAG .............................................5 "Advising" the Vietnamese ........................................... 10

Lawyering at the MACV and Army Support Group. Vietnam ............................................................................ 13

Expanded Legal Services .............................................. 1 5 New Issues .................................................................... 18

Army Lawyers on the Eve ofthe Intervention ....................22 Chapter 2.Vietnam. Military Law During the Offensive, 1965-1969 ...27

Background ......................................................................27 Lawyering at MACV .........................................................30

Legal Policy Issues ....................................................... 32 MACV Advisory Program ............................................. 41

Lawyering at USARV .......................................................45 Organization ofLegal Services at USARV ....................46 Military Justice .............................................................. 49 Civil Law and Claims ....................................................56

Lawyering in the Field ....................................................... 59 173d Airborne Brigade ..................................................60 I1Field Force .................................................................62 10 1 st Airborne Division (Airmobile) ............................. 65 1st Logistical Command ................................................68 US Army Trial Judiciary, Vietnam ................................70

SummingUp .....................................................................73 Chapter 3 .Vietnam: Lawyering in the Final Years, 1970-1975 .........81

Background ......................................................................81 Lawyering at MACV .........................................................82

MACV Advisory Division .............................................83

Judge Advocate Operations at USARV .............................85 Military Justice .............................................................. 85 Claims ...........................................................................90 Military Affairs .............................................................94

Lawyering in the Field ....................................................... 96 1st Cavalry Division ...................................................... 96 25th Infantry Division .................................................100 101st Airborne Division .............................................. 102

The Last Army Lawyers: USARVMACV .....................103 Military Justice ............................................................ 104 Administrative Law, Legal Assistance. International Law. and Claims ..................................... 106 Four-Party Joint Military Commission ........................107 Four-Party Joint Military Team ................................... 110 Summing Up ............................................................... 112

Conclusion....................................................................................... 117 Bibliography.................................................................................... 122 BiographicalNotes on Army Lawyers ......................................... 1 3 5 Index............................................................................................... 1 4 9 About the Author ............................................................................161

Foreword Although the first American soldiers arrived in Saigon in late 1950, the

first Army judge advocate did not deploy to Vietnam until 1959, when Lt. Col. Paul J. Durbin reported for duty. From then until 1975 when Saigon fell and the last few U.S. military personnel left Vietnam, Army lawyers played a significant role in what is still America's "longest war."

Judge Advocates in Vietnam: h y Lawyers in Southeast Asia (1959-1 975) tells the story ofthese soldier-lawyers in headquarters units like the Saigon-based Mlitary Assistance Advisory Group and Military Assistance Command, Vietnam (MACV). But it also examines the individual experiences of judge advocates in combat organizations k e II FieldForce, 1St ~ i rcavalry Ihvision, and the 25thInfantry Division. Almost without exception, Army lawyers recognized that the unconventional nature of guerrilla warfare required them to practice law in new and non-traditional ways. Consequently, many judge advocates serving in Vietnam between 1959 and 1975 looked for new ways to use their talent and abilitiesboth legal and non-legawo enhance mission success. %le h s was not what judge advocates today refer to as "operational lawy'--that compendium of domestic, foreign, and international law applicable to U.S. forces engaged in combat or operations other than w a r 4 e efforts of these Vietnam-era lawyers were a major force in shaping today's view that judge advocates are most effective if they are integrated into Army operations at all levels.

Judge Advocates in Vietnam is not the first book about lawyering in Southeast Asia. On the contrary, Maj. Gen. George S.Prugh's Law at War, published in 1975, was the first look at what judge advocates did in Vietnam. General Prugh's monograph, however, focuses exclusively on legal work done at MACV. Similarly, Col. Fred Borch's Judge Advocates in Combat: Army Lawyers in Military Operationsffom Vietnam to Haiti has a chapter on law in Southeast Asia, but it is a very brief look at military lawyering in Vietnam. It follows that this new Combat Studies Institute publication is long overdue. Its comprehensive examination of judge advocates in Vie-who was there, what they did, and how they did i-11s a void in the history of the Army and the Judge Advocate General's Corps. At the same time, anyone who takes the time to read these pages d l come away with a greater appreciation of what it was like to serve as a soldier-d an Army lawyer-in Vietnam.

Thomas J. Romig Major General, U.S. Army The Judge Advocate General

Introduction This is a narrative history of Army lawyers in Vietnam from

195Cwhen the first judge advocate reported for duty in Vietna-to 1975-when the last Army lawyer left Saigon.

Its principal theme is that, as the Army developed new strategies and tactics to combat the guerilla war waged by the Viet Cong and North Vieinamese, Army judge advocates also discovered that the unconventional nature of the war required them to find new ways of using the law, and their skills as lawyers, to enhance mission success.

When people read about those who served as soldier-lawyers in Southeast Asia from 1959 to 1975, they want answers to at least three questions: Who was there? What did they do? How did that enhance the commanders' ability to accomplish the assigned mission?

In answering the first two questions, Judge Advocates in Vietnam identifies the men and women who deployed to Southeast Asia; it looks at selected courts-martial, military personnel and foreign claims, legal assistance, administrative and contract law issues, and international law matters handled by those judge advocates. Examining who was there and what they did is important because it captures for posterity the contribution of judge advocates of an earlier era. Viewed from this perspective, Judge Advocates in Vieinam is a contemporary branch history. However, in light of its principal theme, Judge Advocates in Vietnam answers the third question by focusing on those events where Army lawyers used the law and lawyering in non-traditional ways.

As in World War I1 and the Korean War, the mainstay of lawyering for Vietnam-era members of the Judge Advocate General's Corps continued to be military justice, legal assistance, claims, and administrative, civil and international law. While judge advocates in previous armed conflicts had practiced law away from the battlefield, Vietnam required Army lawyers to take their practice from the "rear" to the "front," going to those areas where American soldiers were in imminent contact with the enemy. To some extent, t