39 CMR 672

(Cite as: 1968 WL 5165 (ABR), 39 C.M.R. 672)

United States

v.

Captain (O‑3) Howard B. Levy, 05013082, U. S. Army, Headquarters and

Headquarters Company, United States Army Hospital, Fort Jackson, South

Carolina.

CM 416463. [FN*]

FN* Petition for review by USCMA pending.

U.S. Army Board of Review.

August 29, 1968.

Sentence adjudged 3 June 1967. Approved sentence: Dismissal, forfeiture of all pay and allowances, and confinement at hard labor for 3 years.

Disobedience of orders § 19 ‑‑ order to train medical aid men ‑‑ personal concepts of medical ethics.

1. The accused's personal concepts of medical ethics would neither invalidate an otherwise lawful order to train medical aid men nor serve to excuse the accused's noncompliance with such order.

Disobedience of orders § 19 ‑‑ order to train medical aid men ‑‑ definiteness.

2. An order that the accused establish and operate a training program for medical aid men in dermatology in accordance with specified regulations was sufficiently definite in view of the fact that the accused had previously conducted such training and his stated reason for refusing to continue to do so was not that he did not understand the order, but that he could not ethically comply.

Disobedience of orders § 19 ‑‑ legality of war in Viet Nam as not issue.

3. The legality of United States participation in the war in Viet Nam is not a justiciable issue at trial by court‑martial for disobedience of orders.

Conduct, etc. § 48 ‑‑ promoting disloyalty and disaffection ‑‑ proof of actual results unnecessary.

4. A charge of making public statements with design to promote disloyalty and disaffection among the troops does not require proof that anyone actually became disloyal or disaffected.

Conduct, etc. § 48 ‑‑ publicly making disloyal statements ‑‑ sufficiency of evidence.

5. The evidence was sufficient to establish that statements allegedly made with design to promote disloyalty and disaffection among the troops were publicly made where it appeared the statements were unsolicited and were directed to persons in enlisted grades, mostly Negroes, in a busy medical clinic averaging 50 to 70 patients daily and without regard to who was present and the accused's rank and position virtually guaranteed circulation.

Conduct, etc. § 48 ‑‑ statements designed to promote disloyalty and disaffection ‑‑ sufficiency of evidence.

6. The evidence was sufficient to sustain convictions of charges of publicly uttering statements designed to promote disloyalty and disaffection among the troops and conduct unbecoming an officer where it showed the accused made statements to the effect that the United States was wrong in being in Viet Nam, that colored soldiers should refuse to go to Viet Nam because they are discriminated against and given all the hazardous duty and that he would not train special forces personnel because they are thieves and liars, killers of peasants, and murderers of women and children, and it was shown that these statements were made while the accused was performing his duties as a medical officer in a busy clinic and were made without solicitation and within the hearing of anyone present and were directed to individuals of enlisted grades, mostly Negroes.

Conduct, etc. § 48 ‑‑ statements designed to promote disloyalty and disaffection ‑‑ freedom of speech as not defense.

7. The making of statements promoting disloyalty or disaffection among the troops is not within the protection of the First Amendment, guaranteeing freedom of speech.

Trial § 31 ‑‑ law officer's criticism of defense counsel.

8. A comment by the law officer indicating that maybe the defense counsel should withdraw from the case if he could not question his witnesses without a legal definition of certain words was not such error as to require a mistrial in view of an apologetic instruction granting the defense counsel's request for a definition and instructing the court to disregard the law officer's remarks in this connection.

Sentence and punishment § 3 ‑‑ exclusion of opinion evidence of effect of sentence on others.

9. The law officer did not err in excluding from the court's consideration a medical officer's opinion that imposition of any confinement on the accused would have an adverse effect on the morale of other medical officers in the service.

**673 Appearances: Anthony C. Amsterdam, Esquire, Alan H. Levine, Esquire, Mrs. Eleanor H. Norton, Melvin L. Wulf, Esquire, Charles Morgan, Jr., Esquire, M. Laughlin McDonald, Esquire, Reber F. Boult, Jr., Esquire, Capt Robert Wiesenthal, JAGC, appellate counsel for the accused; Capt Balfe R. Wagner, JAGC, Capt James P. Mercurio, JAGC, Capt Leslie Scherr, JAGC, Maj Edwin P. Wasinger, JAGC, Lt Col David Rarick, JAGC, appellate counsel for the United States.

BOOTH, Judge Advocate:

Contrary to his pleas, and following a lengthy fifteen‑day trial, appellant was convicted of willful disobedience (Charge I), publicly uttering certain statements with the design to promote disloyalty and disaffection among the troops (Charge II), and wrongfully and dishonorably making intemperate, defamatory, provoking, contemptuous, disrespectful and disloyal statements to and in the presence of enlisted personnel (Additional Charge I), as set out in full hereafter, in violation of the Uniform Code of Military Justice, Articles 90, 134 and 133, respectively: [FN1]

FN1 Two other offenses charged under Articles 133 and 134 and of which appellant was found guilty by exceptions and substitutions were dismissed on motion on the Government prior to sentencing.

**674 Charge I: Violation of the Uniform Code of Military Justice, Article 90

Specification: In that Captain Howard B. Levy, U. S. Army, Headquarters & Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, having received a lawful command from Colonel Henry F. Fancy, his superior officer, to establish and operate a Phase II Training Program for Special Forces AidMen in dermatology in accordance with Special Forces AidMen (Airborne), 8‑R‑F16, Dermatology Training, did, at the United States Army Hospital, Fort Jackson, South Carolina, on or about 11 October 1966 to 25 November 1966, willfully disobey the same.

Charge II: Violation of the Uniform Code of Military Justice, Article 134

Specification: In that Captain Howard B. Levy, U. S. Army, Headquarters & Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, did, at Fort Jackson, South Carolina, on or about the period February 1966 to December 1966, with design to promote disloyalty and disaffection among the troops, publicly utter the following statements to divers enlisted personnel at divers times: "The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; They should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children", or words to that effect, which statements were disloyal to the United States, to the prejudice of good order and discipline in the armed forces.

Additional Charge I: Violation of the Uniform Code of Military Justice, Article 133

Specification: In that Captain Howard B. Levy, United States Army, Headquarters and Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, did at the United States Army Hospital, Fort Jackson, South Carolina, at divers times during the period from on or about February 1966 to on or about December 1966 while in the performance of his duties at the United States Army Hospital, Fort Jackson, South Carolina, wrongfully and dishonorably make the following statements of the nature and to and in the presence and hearing of the persons as hereinafter more particularly described, to wit: (1) Intemperate, defamatory, provoking, and disloyal statements to special forces enlisted personnel present for training in the United States Army Hospital, Fort Jackson, South Carolina, and in the presence and hearing of other enlisted personnel, both patients and those performing duty under his immediate supervision and control and dependent patients as follows: "I will not train special forces personnel because they are 'liars and thieves,' 'killers of peasants,' and 'murderers of women and children."' or words to that effect; (2) Intemperate and disloyal statements to enlisted personnel, both patients and those performing duty under his immediate supervision and control as follows: "I would refuse to go to Vietnam if ordered to do so. I do not see why any colored soldier would go to Vietnam. They should refuse to go to Vietnam; and, if sent, they should refuse to fight because they are discriminated against and denied their freedom in the United States and they are sacrificed and discriminated against in Vietnam by being **675 given all the hazardous duty, and they are suffering the majority of casualties. If I were a colored soldier, I would refuse to go to Vietnam; and, if I were a colored soldier and if I were sent to Vietnam, I would refuse to fight," or words to that effect; (3) Intemperate, contemptous, and disrespectful statements to enlisted personnel performing duty under his immediate supervision and control, as follows: "The Hospital Commander has given me an order to train special forces personnel, which order I have refused and will not obey," or words to that effect; (4) Intemperate, defamatory, provoking, and disloyal statements to special forces personnel in the presence and hearing of enlisted personnel performing duty under his immediate supervision and control, as follows: "I hope when you get to Vietnam something happens to you and you are injured," or words to that effect; all of which statements were made to persons who knew that the said Howard B. Levy was a commissioned officer in the active service of the United States Army.

Appellant's sentence to a dismissal, forfeiture of all pay and allowances and confinement at hard labor for three years was approved by the convening authority. Issues were joined and oral arguments were presented before this board thirteen months following trial. Most of the individual counsel representing him before this board also represented him at trial.

The record of trial in this case, consisting of eighteen volumes, depicts a thirty‑year‑old man of better than average background and advantages, who agreed to serve his country for two years if he would be permitted first to obtain a medical degree, [FN2] but who, when called upon to fulfill his bargain, failed miserably. He obtained his medical degree in 1961 from State University of New York, Medical School, and completed his residency at Bellevue Hospital, New York City. He entered on active duty in the grade of Captain on 9 July 1965 for a period of two years and his initial and only duty assignment was as chief of the dermatology service, U. S. Army Hospital, Fort Jackson, South Carolina.

FN2 "Berry Plan," See 50 USC App Sec 454.

A mission of this hospital during 1966 was to conduct a series of seven‑week phase II applicatory training courses prescribed in AR 350‑217 for special forces aidmen who had completed the didactic phase of their training at Fort Sam Houston. Each student during this training phase was scheduled to spend two hours per day for one week in the dermatology clinic where he was to receive training in the identification and treatment of certain specified skin disorders and diseases. As chief of the dermatology service, appellant had the responsibility to conduct this training. During the early part of 1966 appellant discharged this training responsibility and to a limited degree did so through the summer but with mounting irregularity and incompleteness. However, during the period of time alleged in 1966 he instigated and engaged in many conversations in the clinic, some entirely one‑sided, with aidmen in training, patients and visitors, without regard as to who might be present to listen, in which he made the many statements attributed to him in Charge II and Additional Charge I. The evidence in the record of these utterances is overwhelming, indisputable, and in fact, if we correctly interpret the defense's tactics, is relied upon to demonstrate the purported sincerity of appellant's ethical convictions against obeying the order alleged in Charge I.

During the late summer the hospital commander became aware that the quality and quantity of the training in dermatology being received by the students was totally unsatisfactory and, after an investigation verified the report, he determined that strong corrective action was demanded. This determination resulted in a personal confrontation with appellant, at which time he gave the latter a written order to conduct the required and specified training. Appellant read the order, acknowledged that he understood it, but stated that he would not obey it because he did not feel that obedience of it would be consistent **676 with his sense of medical ethics. He was then informed that obedience thereto was nevertheless expected. At approximately mid‑course of the training cycle in question, no training having been given, the order was in essence repeated. Appellant persisted in his refusal to obey, frequently remarking to associates and enlisted subordinates during this period that he had received the order but that he would not obey it, and in fact, he did not. Acquaintances were unsuccessful in their endeavors to persuade him to change his mind and conduct the training or to have others conduct it for him. His enlisted subordinates offered to conduct this necessary training inthe dermatology clinic, but he ordered them not to, and accompanied his order with a threat of punishment. He was determined that these students would not receive any training in any area of his responsibility.

In 26 assignments of error, most of which are multi‑pronged, appellant's counsel before this board have attacked these proceedings from beginning to end‑‑the beginning being the preparation of the charge sheet and the end being the sentencing of appellant. These asserted errors can be separated into three general categories and the mere restatement of some will suffice to demonstrate their lack of merit because of long and accepted judicial precedent to the contrary. The categories are: (a) errors relating specifically to Charge I; (b) errors relating specifically to Charge II and Additional Charge I (referred to as the speech charges); and (c) errors relating to pre‑trial matters, trial procedures and occurrences during the course of the trial. The majority of the assigned errors will be set forth in substance, and unless discussion is warranted, only a reference to an authority which is dispositive of the assignment as nonmeritorious will be noted.

As to Charge I, willful disobedience of the order to conduct the designated training, there is no contest that the order was given, and that the appellant willfully and defiantly disobeyed that order. In fact, the deliberateness of the refusal was accentuated by defense counsel at the trial forum to emphasize the sincerity of appellant's convictions against this country's participation in Vietnam and his strict adherence to his concept of medical ethics and his own conscience. It is asserted by appellant that the order was unlawful because compliance would have violated appellant's personal concept of medical ethics; specifically, that the order required him to teach unqualified combat personnel the art of medicine; that their knowledge thereby acquired would then be used for military and political purposes; and that to conduct the training he would perforce breach some confidential relationships with patients. He asserts that the order described in language too broad, indefinite and vague that training which was to be performed. He further complains of the law officer's ruling that his offer of proof made in lengthy out‑of‑court hearings failed to establish a pattern of war crimes and atrocities being committed by American and allied forces in Vietnam and that the law officer erred in excluding this testimony from the court's consideration on the issue of the legality of the order. Lastly, as to this charge specifically, he complains that it should not have been consolidated for trial with the speech charges.

[1] The law officer properly ruled, and the court was so instructed, that the order, if given, was a lawful order. Simply stated, the order to provide this training for the special forces aidmen was issued by one who had the authority to do so and was related to appellant's military duties (United States v Giordano, 15 USCMA 163, 35 CMR 135 (1964)). That its execution by appellant may have in some way been inconsistent with his personal interpretation of a medical code of ethics or his personal conscience does not as a matter of law render invalid the otherwise lawful order, nor does it serve to excuse appellant's noncompliance (para 169b, MCM 1951; CM 413709, Taylor, **677 37 CMR 547 (1966); ACM 13462, Cupp, 24 CMR 565, (1957)). [FN3]

FN3 Within two weeks of the appellant's conviction at Fort Jackson, South Carolina, the following official policy of the American Medical Association was adopted:

"There is no conflict between the ethics of the medical profession and the oath which officers must take when sworn into the Armed Services. This oath, applicable to medical and other officers, provides that all officers shall support and defend the Constitution of the United States against all enemies, foreign and domestic, that they will bear true faith and allegiance to the Constitution of the United States and that they take such obligation freely and without any mental reservation or purpose of evasion. There is nothing in this oath which conflicts in any way with the ethics of the medical profession" (Resolution 89, House of Delegates, American Medical Association, 18 June 1967).

[2][3] The allegation that the training was described in language too broad, vague and indefinite deserves but little comment as does the complaint that he was not permitted to contest the legality of this country's participation in the Vietnam involvement. In regard to the former, appellant had no difficulty understanding what training was required during the period early in 1966 when he was actually conducting the training and before he decided he would no longer perform this duty. Further, when the order in question was given to him, he gave as a reason for his refusal not that he did not understand what was expected of him, but that he could not ethically comply. The issue of the war's legality is not available to appellant (United States v Johnson, 17 USCMA 246, 38 CMR 44 (1967)).

United States v Geib, (9 USCMA 392, 26 CMR 172 (1958)) disposes of the issue of the alleged improper joinder of charges.

In the second category of assigned errors, those relating to the speech charges, appellant complains of the sufficiency of the evidence; that these statements are protected by the First Amendment to the Constitution of the United States; that Articles 133 and 134 of the Uniform Code of Military Justice are too broad and vague, and that they fail to apprise appellant of the standards of conduct required of him; that he was not permitted to establish as a defense thereto that the utterances were in fact the truth; that in essence Charge II alleged the offense of "attacking the war aims of the United States" and therefore in the absence of a formal declaration of war appellant was convicted of a nonexistent crime; and that the offense alleged under Charge II has been preempted by the enactment of Title 18, United States Code, Section 2387 (as to the last proposition, see United States v Herndon, 1 USCMA 461, 4 CMR 53 (1952); United States v Blevins, 5 USCMA 480, 18 CMR 104 (1955); United States v Frantz, 2 USCMA 161, 7 CMR 37 (1953)).

[4][5][6][7] Insofar as the evidence is concerned, there is no contest that the utterances alleged in the specifications to have been made by appellant were in fact made by him and repeated by him on many occasions. The record is replete with testimony of these utterances by appellant and the defense does not contend to the contrary. If not expressly, at least tacitly this was and is admitted by his counsel. The basic disagreement between the parties as to Charge II is whether such statements were disloyal, made publicly with the design to promote disloyalty and disaffection, and whether such utterances had a clear and reasonable tendency to produce that effect, and as to Additional Charge I, the effect of such utterances. Contrary to appellant's argument, it is immaterial that no one was shown actually to have become disloyal or disaffected (United States v Batchelor, 7 USCMA 354, 22 CMR 144 (1956)). The statements were made with complete disregard as to time and place, were directed to individuals of the enlisted grades, mostly Negro, and many of whom emotionally and educationally were susceptible to being influenced. Environmentally appellant **678 was most indiscriminate, but the class of persons to whom he directed his remarks suggests that he was discriminate in that regard so that his statements would produce the maximum effect. These events took place in a crowded and busy clinic which averaged a daily case load of some 50 to 70 military and civilian patients. The statements were not made behind closed doors but wherever and whenever the occasion presented a likely prospect in which a seed of thought could be planted and for all to hear. Certainly, these utterances were "Publicly" made. As ably stated in Government's brief, the "utterances . . . were unsolicited, devoid of mutuality, and made under circumstances where open and notorious circulation was guaranteed by virtue of the appellant's rank and position." (United States v Batchelor, supra). The circumstances under which the remarks were uttered, the persons to whom they were directed and the very nature of the statements themselves, compel the obvious and inescapable conclusion that they were in fact disloyal and were intended to and had the reasonable tendency to promote disloyalty and disaffection. The evidence is overwhelming that such conduct is discrediting and prejudicial to good order and discipline. It cannot be denied that the right to the freedom of expression guaranteed by the First Amendment should be and is zealously protected by the courts, but no one can seriously contend that the exercise of that right is totally unrestricted under any circumstances (United States v Howe, 17 USCMA 165, 37 CMR 429 (1967)). Were it otherwise it would permit the destruction of the very right itself, for if one who has solemnly sworn to uphold the Constitution can promote by words the disaffection and disloyalty of others charged with the same duty, that which has been guaranteed would soon have no guarantors. And the truth or falsity of the words or utterances is not the issue (United States v Batchelor, supra), nor is the existence or nonexistence of a formal state of war, [FN4] for aside from the nature of the utterances, the evil which is the offense is the intent and effect of the utterances (Article 134) and the disgrace and dishonor which they bring to the officer, individually as well as upon the office which he holds (Article 133).

FN4 Time of War existed in 1966 (United States v Anderson 17 USCMA 588, 38 CMR 386 (1968)).

Articles 133 and 134 have too many times withstood the overbroadness and vagueness attacks to warrant again a defense (United States v Howe, supra; United States v Sadinsky, 14 USCMA 563, 34 CMR 343 (1964); United States v Frantz, supra).

The remaining errors in this category need no discussion.

The next category contains a diversity of alleged errors. Appellant alleges that his court‑martial was but a selective application of military law for the purpose of silencing expression of dissent over Vietnam policy. But this allegation overlooks completely that the record is absolutely devoid of any evidence indicating or even suggesting an impure motive in the preferring or referring of the charges for trial except that his commanding officer was aware that he was undergoing a security‑type investigation, and that appellant's guilt of the charges has now been firmly established at his court‑martial. He complains that the investigating officer appointed in compliance with the requirements of Article 32, Uniform Code of Military Justice, was under the command, promotional and disciplinary control of the convening authority and that the press was excluded from the proceedings conducted by that officer, yet he does not complain that the officer was unqualified, that the proceedings were otherwise improper, or that he was in fact coerced. The selection and composition of the court likewise received the critical attention of appellant for he first asserts that he should have been tried by a jury (United States v Culp, 14 USCMA 199, 33 CMR 411 (1963)); that he was not tried by his peers because "career officers" sat on the court‑martial (see United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964); Article 25, Uniform Code of Military Justice) and it did not contain any medical corps (para 4a, MCM, **679 1951) or female officers [FN5]; that the convening authority's discretion in selecting court members is too broad and those selected are under his command, promotional and disciplinary control (United States v Crawford, supra); and that the court‑martial rules finally upon the challenges to its membership (United States v Jones, 7 USCMA 283, 22 CMR 73 (1966). Appellant objects to the trial counsel who, before charges were referred for trial but knowing of his appointment to that capacity in the event of trial, interviewed prospective witnesses, claiming therefore that he became an investigating officer and thus disqualified himself from later participation in the trial (United States v Young, 13 USCMA 134, 32 CMR 134 (1962); United States v Weaver, 13 USCMA 147, 32 CMR 147 (1962); United States v Schreiber, 5 USCMA 602, 18 CMR 226 (1955)). Appellant also believes that the administrative functions of the trial counsel during trial, such as opening the court and administering oaths (United States v Robinson, 13 USCMA 674, 33 CMR 206 (1963)) place him in a preferred position of trust over that of appellant, compounding the latter's disadvantage by repeated references during trial to appellant as "the accused"; and that he should have independent subpoena power because it is unfair to require him to disclose to the trial counsel the names of his witnesses and their relevancy in order to have them subpoenaed (United States v Sweeney, 14 USCMA 599, 34 CMR 379 (1964)). He further contends that the trial counsel should have been required to disclose the identity of all persons he interviewed prior to trial but who were not called as witnesses. He further complains that his rights were violated by the role of the staff judge advocate who, under the command control of the convening authority appointed counsel for both sides, made recommendations in both the pretrial advice and posttrial review, and conferred with and advised the accuser to the extent that he became a de facto accuser (United States v Smith, 13 USCMA 553, 33 CMR 85 (1963)). The record is completely barren of factual support for this last allegation. Finally, in this category he asserts that the law officer erred in not granting his motion for a change of venue. We conclude that the law officer did not abuse his discretion in this regard (United States v Carter, 9 USCMA 108, 25 CMR 370 (1958)).

FN5 The record does not establish that any female officers were available to act as court members. Defense does not contend that any court member who did sit was in any way ineligible or unqualified.

On several occasions in open and closed session of the court, individual defense counsel alluded to his lack of comprehension of the meaning of the word "disaffection" appearing in one of the charges. On the eleventh day of trial while individual defense counsel was examining a defense witness the following transpired:

"A No, sir. No, we didn't talk about Vietnam, not at length. No, we never talked about Vietnam at all.

"Q He never made you disloyal, did he?

"A No, sir.

"Q He never made you disaffect, did he?

"A What does disaffect mean?

"Q I don't know.

"LAW OFFICER: Mr. Morgan, if you don't know the questions, don't ask them.

"INDIVIDUAL COUNSEL: I don't know what the meaning of the word disaffect is.

"LAW OFFICER: Don't use them in the question then.

"INDIVIDUAL COUNSEL: Could I have a meaning from the court what disaffection is?

"LAW OFFICER: Should have asked it before you asked the question.

"INDIVIDUAL COUNSEL: I asked for a ruling on disloyalty the other day and you said you would supply it before the case went to the jury. I am trying to make out a case of proof on disloyalty and **680 disaffection. I have difficulty understanding what the words mean.

"LAW OFFICER: Well, if you are going to ask the question you had better get the definitions before you go any further.

"INDIVIDUAL COUNSEL: May we excuse the witness then, have an out‑of‑court hearing so I could have the definition?

"LAW OFFICER: You should have asked it‑‑if you are going to use in your questions words to which you don't know the meaning, I would suspect you would have asked me some time ago on that.

"INDIVIDUAL COUNSEL: I did ask you about disloyalty the other day.

"LAW OFFICER: I told you that was a question of law. Now, you can ask the question of this witness. If he doesn't know the meaning, you can explain it in your own words, and then‑‑and then determine further by questions what he means by his answer. That's simple enough, but it is not a proper legal procedure to pose questions and then come back with a quick retort that you don't know the meaning of the word you use in the question. You know that, or should know.

"INDIVIDUAL COUNSEL: I understand, Colonel. I am trying to get from you now, a ruling as to the legal definition of disaffection.

"LAW OFFICER: And I am going to tell you now that you don't need it at this time. All you have to do is ask this witness what he means by the use of that word.

"Q What do you mean by the use of that word?

"A I never used it.

"Q Did you say you never‑‑

"A Never used the word. I'm sorry.

"Q Fine.

"LAW OFFICER: Then you will have to rephrase your question to approach something that you may mean by it. We are concerned now for a lay opinion, not a legal opinion from the witness as to disaffection. I told you, I would give you a legal definition of the word disaffection at the end of the trial, before I charge the court.

"INDIVIDUAL COUNSEL: If a question whether a man has‑‑

"LAW OFFICER: It is simple enough to ask the question what disaffection means to him. If he doesn't know the meaning, try to direct his question in that area.

"INDIVIDUAL COUNSEL: Colonel, I am just trying to find out what the definition of disloyalty and disaffection is because there should be a factual question involved in those words and if I don't know the definition, I don't know how to proceed.

"LAW OFFICER: Certainly, there is a legal definition of those terms, but we do not expect the witnesses to know these legal definitions or to speak only in legal terms. Number one, they are not lawyers. Number two, they are not concerned with that. They are to describe certain acts or feelings or ideas that they themselves have as a factual content of meaning and certainly as a lawyer you could reach that through questioning, I should think, without going through a legal definition.

"INDIVIDUAL COUNSEL: Well, I don't think I can, Colonel. Thank you.

"LAW OFFICER: If you can't, maybe you should withdraw from the case.

"INDIVIDUAL COUNSEL: No, sir, I don't think I'll do that."

Defense's motion for a mistrial was denied and the law officer, over defense objection, instructed the court as follows:

"LAW OFFICER: Mr. President, prior to the last recess, counsel and I became engaged in the definition of the words 'disloyalty' and 'disaffection', I believe and upon reflection, **681 I feel under the circumstances of this case, he was entitled to a broad, general definition of these terms as they appear in your charges and specifications before you; and during the out‑of‑ court hearing, I gave him a broad, general definition of those terms as they are used in this court‑martial. I instruct you to disregard my remarks to him in that connection and to divorce them from your determination of guilt or innocence in your closed session deliberation. Now at the close of the case, when I instruct you on the law of the case, I will further define both the words 'disloyalty' and 'disaffection' for you and for your guidance. But of course, as these witnesses use them, it is their meaning of the words that you must interpret into their testimony‑‑within the meaning with which they use the terms. But at the close of the case, I will give you a general definition of those terms. Does the court understand that?"

[8] While we cannot and do not condone lapses from proper judicial deportment, particularly in open court proceedings, we recognize that lengthy and strongly contested proceedings often fray the nerves of all who are involved. We note that on many occasions, the law officer displayed remarkable restraint and understanding. Contrary to appellant's assertion we do not believe that this one remark placed individual defense counsel "in apparent opposition to the entire military system." Such an interpretation magnifies the incident entirely out of proportion. Not every error at trial requires a mistrial, and any error, we believe, was completely cured by the law officer's apologetically flavored instruction (United States v O'Neal, 16 USCMA 33, 36 CMR 189 (1966)).

[9] In extenuation and mitigation, appellant attempted to influence the court's sentence by the opinion of a medical officer that the imposition of any confinement on appellant would have an adverse effect upon the morale of other medical officers in the service. Contrary to appellant's claim, we conclude that the law officer did not err in excluding this opinion from the court's consideration (United States v Franchia, 13 USCMA 315, 32 CMR 315 (1962); United States v Ault, 15 USCMA 540, 36 CMR 38 (1965)).

Appellant submitted to the law officer fourteen instructions which he proposed for submission to the court‑martial on findings. He objects that these instructions were not given in their entirety as submitted. The court was properly instructed on all issues, however, and we find no merit in this claim.

The claims of appellant that his civilian attorney could not peruse the complete "G2 Dosier" [FN6] and that his conviction violates constitutional prohibitions against bills of attainder and ex post facto laws as well as the remaining assigned errors do not warrant any summarization or discussion.

FN6 The major portion of this file was released to appellant. Some documents were not but were examined by military defense counsel and the law officer in camera to determine theirinapplicability to the trial. Defense disclaimed the application of the Jencks Act, 18 USC 3500.

All counsel were energetic and diligent in their advocacy during these lengthy proceedings. Defense counsel were permitted great latitude in presenting any matter which conceivably could be considered a defense or which might serve to extenuate or mitigate the offenses. Prior to pleading, appellant tested the charges and specifications and a great portion of the military justice system by some 24 wide‑ranging motions. The law officer's rulings thereon were eminently correct. The offenses of which appellant has been convicted are fully and beyond any reasonable doubt substantiated by the evidence. In sum, we perceive no error which prevents affirmance of appellant's conviction.

Appellant has been described as a very competent physician. Except for **682 the incidents which became the basis for the instant charges, apparently there was no objection to the manner in which he performed his medical duties although he may have lacked some of the accepted but less significant attributes normally expected and required of every officer. Notwithstanding that appellant may have had deep personal convictions against his country's involvement in Vietnam and his belief that his concept of medical ethics would be compromised by performing the training required of him, his willful refusal to train and prepare the special forces aidmen for their important tasks ahead cannot be condoned. He stated at his postrial interview substantially that anyone in the Army should be permitted to refuse any order on the grounds of conscience. Fortunately for the sake of discipline in the armed forces and for the Republic they guard, his postulation has yet no support in our military law. More to be condemned than his refusal to obey the order, however, is his effort to promote disloyalty and disaffection and the dishonor which he brought upon himself and his office. That irreparable harm has been done is evident, but the extent of it cannot yet be assessed.

The Board of Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence are hereby affirmed.

BOOTH, CHALK (concurs) and STEVENS (concurs), Judge Advocates.