CHAPTER XVI
Forensic Military Psychiatry
Lieutenant Colonel Robert J. Bernucci, MC, USA (Ret.)
HISTORICAL NOTE
Military law 'is as ancient as war itself,'1 but in comparison, psychiatry's introduction into both military and civil courts is relatively new. Although Henricus Cornelius Agrippa (1486-1535) and his pupil Johann Wier (1515-88)2 are credited as being the founders of the medical jurisprudence of insanity, many other enlightened persons have raised their voices since then in defense of the criminally insane, without much success.
In the United States, Isaac Ray has been acclaimed the father of psychiatric jurisprudence. In 1838, he published the first book in America on the subject 'Medical Jurisprudence of Insanity' and devoted considerable effort in improving the lot of the criminally insane. Five years later, in England, the famous M'Naghten case led to the formulation of certain criteria, based on the M'Naghten rule,3 which were eventually accepted in most States of the United States and were used in the Army during World War II.
MILITARY JURISDICTION
The sources of military jurisdiction include the specific provisions of the Constitution relating to such jurisdiction in the powers granted to Congress; international law; the Executive orders of the President; and in a provision of the fifth amendment. Military jurisdiction is exercised through military government, martial law, and military law by the following agencies: Military commissions, provost courts, courts-martial, courts of inquiry, and commanding officers exercising disciplinary powers under A.W. (Article of War) 104.4 Although the psychiatrist could have been called upon by any of these agencies during World War II, his services
1Branham, Vernon C., and Kutash, Samuel B. (editors): Encyclopedia of Criminology. New York: Philosophical Library, Inc., 1949, p. 249.
2Zilboorg, G.: Legal Aspects of Psychiatry. In One Hundred Years of American Psychiatry. Published for the American Psychiatric Assoc., by Columbia Univ. Press, New York, 1944, p. 509.
3The M'Naghten (or McNaughton) rule resulted from the trial of a man who attempted to shoot Sir Robert Peel and who killed his secretary, the defense attorney offering a plea of insanity. The court gave a ruling that the accused must have been unaware of the difference between right and wrong and that he must not have known the nature and quality of the act, if this plea were to be allowed. The ruling has been cited in many subsequent cases. See Harriman, Philip L.: The New Dictionary of Psychology. New York: Philosophical Library, Inc., 1947, p. 215.
4A Manual for Courts-Martial, U.S. Army. Washington: U.S. Government Printing Office, 1 Apr. 1928, p. 1.
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and professional opinion were more frequently utilized in courts-martial and those administrative procedures requiring psychiatric evaluation. Of the three types of courts-martial, the psychiatrist did not, as a rule, become involved in the summary court-martial, the so-called company punishment, for minor offenses.
Military law.-The vast number of men and women who served in World War II were governed by the 121 Articles of War5 existing at that time, for 'one of the instruments for achieving and maintaining a high state of discipline is military law.'6 Nevertheless, many 'civilian' soldiers became involved in offenses against military law. Why they were unable to make the necessary transition from civil to military status and accept the change in mores and law which now governed their way of life is illustrated by the following:
In civil life, criminal law seeks to protect society from the depredations of its irresponsible members without prejudice to fundamental individual rights by hasty, ill-considered star chamber action. In military life, military law must not only attain these ends but must do more. The primary objective of the military services is to win wars, not just fight them. Therefore, military law must not only restrain individuals for the protection of military society, but must be an instrument which will assist in attaining the requirement that all members of the service march in a prescribed order. For this reason, certain acts which are considered inalienable rights in civil society are offenses in military society. For instance, the act of 'telling off the boss.' This is an inalienable right of the American civilian, but in the military service it may well constitute an offense punishable by courts-martial. In civil life, if a man does not like his job he can quit it. Such action in the military service would be desertion. Likewise, in civil life if a group of people decide they do not like working conditions and walk off jointly, that is a strike. In the military service, it is mutiny.7
PSYCHIATRIC EVALUATION OF THE ACCUSED
The 1928 'Manual for Courts-Martial' permitted investigation before, during, or after trial, if any reasonable grounds existed for the belief that the accused was, at the time of the offense or the trial, mentally defective, deranged, or abnormal. The commanding officer, exercising courts-martial jurisdiction, had the right to have the accused examined mentally and 'no charge will ordinarily be referred to trial if he is satisfied that the accused is insane or was insane at the time of the offense charged.'8 The investigating officer also had authority to request such an examination before trial. In suspected insanity, the Manual9 provided:
An appointing authority may, in his discretion, suspend action on the charges pending the consideration of the report of one or more medical officers, or the report of a board convened under AR [Army Regulations] 600-500 [20 Nov. 1939; amended 7 Aug. 1942; 25 May 1944; 4 Feb. 1946] in a case where that regulation applies and it
5A Manual for Courts-Martial, pp. 203-230.
6NAVPERS 10873, 'Extracts From the Uniform Code of Military Justice,' April 1951, p. v.
7Ibid.
8A Manual for Courts-Martial, p. 20.
9Ibid., p. 26.
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is practicable to convene such a board. The medical officers or board will be fully informed of the reasons for doubting the sanity of the accused and, in addition to other requirements, should ordinarily be required to include in the report a statement, in as non-technical language as practicable, of the mental condition of the accused both at the time of the offense and at the time of examination. The appointing authority may, in his discretion, attach the report to the charges if referred for trial or forwarded.
The court or any one of the personnel of the court, prosecution or defense, had the right to inquire 'into the existing mental condition of the accused whenever at any time while the case is before the court it appears to the court for any reason that such inquiry ought to be made in the interest of justice.'10 In addition, after the trial-
The reviewing authority will take appropriate action where it appears from the record or otherwise that the accused may have been insane at the time of the commission of the offense, or insane at the time of trial, regardless whether any such question was raised at the trial or of how it was determined if raised.11
Criteria for Mental Responsibility
The criteria for mental responsibility used by the military services were originally derived from the M'Naghten rule,12 and somewhat modified. This rule was traditionally called the right and wrong test. The 1928 'Manual for Courts-Martial' stated:
A person is not mentally responsible for an offense unless he was at the time so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right.13
Another determinant of mental responsibility was included in the Manual which established the requirement of 'the accused's mental capacity either to understand the nature of the proceedings or intelligently to conduct or to cooperate in his defense.'14
The criterion for mental responsibility, adopted by military law, was more liberal than the old 'right and wrong test' because it also included the 'adhere to the right,' the so-called 'irresistible impulse test.'15 It was, however, generally conceded that the irresistible impulse part of the test for mental responsibility was extremely limited in its applicability and, for practical purposes, could only be related to psychoses and severe neuroses. On occasion, the irresistible impulse was involved in certain
10A Manual for Courts-Martial, p. 49.
11Ibid., p. 74.12See footnote 3, p. 475.
13A Manual for Courts-Martial, p. 63.
14Ibid., p. 49.
15(1) Porter, W. C.: Military Forensic Psychiatry. In Manual of Military Psychiatry. Philadelphia: W. D. Saunders Co., 1944, p. 122. (2) War Department Technical Bulletin (TB MED) 201, 1 Oct. 1945.
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neurotic compulsive disorders, such as kleptomania.16 Thus, the 'insane,' properly equated with persons having psychiatric disorders, and persons with any type of mental illness, including a neurosis which could produce involuntary behavior, were properly protected according to the military laws of the time.
When, however, a person's mental capacity was affected by voluntary excessive use of alcohol or drugs, such an affected mental state could not be used as an excuse for a committed act. Nevertheless, if drunkenness or the effect of intemperate use of drugs was associated with the commission of an offense, the fact was admissible as evidence so that the court could give proper weight to such an association.
Provisions for Psychiatric Examination
In most instances, a single psychiatrist was requested to perform the psychiatric examination and report on the sanity of an accused. When the offense was of a more serious nature, a board composed of at least three officers was usually appointed by the commanding officer who had immediate jurisdiction over the particular court-martial involved. As the 'Manual for Courts-Martial' stipulated, the request for such an examination could be initiated by the investigating officer, the trial counsel, the defense counsel, the court, or the commanding officer concerned. This board, appointed under the provisions of AR 600-500 (p. 476), had the specific function of inquiring into the mental status of any individual, prisoner or otherwise, of reporting its findings, and, where indicated, of making appropriate recommendations for disposition. Because of its function, the board was frequently referred to as a 'sanity board.' However, commanding officers of hospitals were authorized to appoint a board of medical officers under the provisions of AR 40-590, 2 February 1942, which board could be utilized by the hospital commander for any number of functions, only one of which was the mental examination of accused individuals before courts-martial.
In installations in the Zone of Interior where the personnel situation was stable, boards were appointed under both AR 600-500 and AR 40-590 in advance of their need and were convened when necessary. Usually, sufficient alternate members were appointed so that a full board could be called at any time.
Some of the service commands required psychiatric examination of
16Although the term 'irresistible impulse' was not specifically mentioned in the 1928 'Manual for Courts-Martial,' it was implied by the possibility that the accused may intellectually distinguish what is right and what is wrong but may not be able to adhere to the right and refrain from doing wrong because of mental illness or defect, such as a compulsion neurosis. In this connection, the 'policeman at the elbow test,' or whether the accused had committed the crime in the presence of a policeman, was considered by many psychiatrists to be irrelevant and unscientific. Porter (footnote 15 (1)) mentioned irresistible impulse before July 1944, and TB MED 201, of 1 Oct. 1945, included it in the text. Early in the war period, the author who had had civilian court experience found it justifiable to introduce the irresistible impulse concept in certain appropriate cases.-R. J. B.
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all offenders scheduled for general courts-martial. Others required such examination only when the question of mental responsibility arose. Variations in procedure for the determination of mental responsibility existed throughout the Army, not only in accordance with local policy but also in relation to the knowledge and experience of psychiatrists in civil and military law, to the availability of psychiatrists, to the time they could allot to individual cases, and to the lack of specific medicolegal information in the field. Although obviously necessary, the standardization of psychi?atric military court procedure and the establishment of uniform rules were not accomplished until 1 October 1945, when TB MED 201 was issued. Col. A. E. Lipscomb, an attorney with the Judge Advocate's Division, and Lt. Col. Manfred S. Guttmacher, MC, of the Neuropsychiatry Consultants Division, in the Surgeon General's Office, had collaborated in the development of this technical bulletin. The bulletin contained information on the following topics:
1. Legal standard of mental accountability under military law.
2. Rules of evidence and methods of presenting testimony.
3. Relationship of types of psychiatric disorders to responsibility.
4. Value of punishment as a deterrent.
5. Suggestion for pretrial psychiatric examination of accused.
6. Persons who may be designated to carry out psychiatric examination.
Despite the late appearance of this bulletin, it was well appreciated and became the basis for further dissemination of forensic military psychiatry information in the postwar years.
Responsibilities of the Psychiatric Medical Officer
The responsibility of the psychiatrist in the evaluation of the accused was well summarized in TB MED 201, as follows:
In order for a psychiatric medical officer to discharge efficiently his duties as a witness in courts-martial cases, he should thoroughly understand the legal standard of mental accountability enforced by military law and should be familiar with the proper methods of psychiatric examination and the basic requirements of expert testimony.
Examination
Upon referral of the accused for psychiatric evaluation, the examiner was supplied with as much pertinent information as was available. This included a statement of charges against the offender; information on the circumstances surrounding the offense; the basic reasons for questioning the mental responsibility of the accused; and statements concerning the offender's past and present behavior, his efficiency as a soldier, and any abnormalities of his behavior, including his habits as to the use of drugs
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and alcohol. Injuries, such as head trauma, had to be reported or inquired into at the time of examination.
Before proceeding with the actual psychiatric examination, it was the duty of the examining officer to make clear to the accused not only his rights under A.W. 24 (self-incrimination) but also to explain the scope and purpose of the examination.
The subsequent examination had to be thorough not only in justice to the accused but also because the examiner had to be fully informed and adequately prepared to testify as an expert witness.
Testimony
As a witness, the examiner who testified in nontechnical language as much as possible was more favorably received by the court. In addition to the replies to the specific questions on mental responsibility required by the court, it was advisable to relate the circumstances of the conduct of the examination. When applicable, it was also advisable to include a simple explanatory evaluation of the results from procedures such as psychological testing, social histories from local and other sources, and pertinent laboratory and sobriety tests, and to explain how this information contributed to the total appraisal of the accused.
Impartiality on the part of the psychiatric examiner was most important. Regardless of whether the examination was requested by the defense, prosecution, or other interested party, the psychiatric examiner was, in essence, a physician who was presenting unbiased medical findings and opinions from a professional viewpoint. He was not qualified to express opinions on questions of law. On direct examination or cross-examination, he was obliged to answer the questions as they were presented and, as any other witness, could later explain and amplify what he meant. Since the members of the court were usually line officers with little or no knowledge of psychiatry, the psychiatrist was frequently asked by the court to explain part of his testimony or answer a hypothetical question for this purpose. Sometimes, as in the hypothetical question, when reply of the psychiatrist was intended to enlighten further or enlarge upon the testimony being presented to the court, it was included in the record of court procedure. In other instances, where only explanation of terms or psychiatric terminology was involved, the court could be temporarily 'closed,' and the statements of the psychiatric examiner were not included in the record. In either case, however, the psychiatric examiner's contributions to the court were more valuable when he was prepared to support such responses by personal knowledge and experience or by reference to the writings of authorities in books, treatises, or other publications.
Privileged communication.-Routine observations, or specially directed examinations, and the general medical care and treatment provided for military personnel were regarded as official acts. The information ac?
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quired thereby was, therefore, not privileged, as explained in the Manual:
While the ethics of the medical profession forbid them to divulge to unauthorized persons the information thus obtained and the statements thus made to them, such information and statements do not possess the character of privileged communications.17
Reports and depositions
Usually, an informal request was issued when a psychiatrist was required to testify before a court-martial. Occasionally, a formal subpoena was issued and served. Because of the usually large caseload and limited time, the psychiatrist often found it difficult to make such an appearance, especially if such requests were frequent. An understanding court could, in many instances, accept a deposition,18 as authorized by A.W, 25, in lieu of personal testimony.
A deposition consisted of a complete report on the case, with answers to the required questions on mental responsibility. It also contained other information that might assist the court in understanding the pertinent medical and psychiatric aspects of the particular case. Although any authorized military officer or civilian could take and authenticate a deposition, it was usually either the defense or the trial counsel who appeared at the psychiatrist's office or clinic for this purpose. The thoroughness of the deposition, its individualization regarding the case in question by refraining from using a printed form, which was done in some installations, and the use of nontechnical language all contributed much toward satisfying the needs of the court. In addition, it saved the psychiatric medical officer from having to appear as a witness. On rare occasions, the psychiatrist was required to appear in court, despite his deposition.
When a board of medical officers was convened under the provisions of AR 600-500 or AR 40-590, the report of the board was formally submitted to the court or to the requesting authority. This report, in essence, was also a deposition. The submission of an adequate report frequently sufficed, although the court had the authority to request the appearance of any or all members of the board as witnesses.
When a certificate was used, the information included followed the same general format of the deposition or report of a board of medical officers. Written in certificate form, with the introductory statement 'I certify' or 'It is certified,' such a certificate could also serve as a deposition. The certificate was usually brief. It was used more often in lesser offenses or where there was no question of doubt on the part of the examiner that the accused was mentally responsible. Here again, the individualized type of report was better received than one submitted on a prepared printed form.
17A Manual for Courts-Martial, p. 130.
18Ibid., p. 208.
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Hospitalization for Purposes of Examination
Unit commanders or the provost marshal usually preferred to have the psychiatric examination of a prisoner performed on a hospital inpatient basis. They argued that transportation of the prisoner, back and forth from the hospital, for interviews, board meetings, or laboratory testing required the use of guards, which practice created hardships on a limited staff and multiplied security responsibilities. These arguments were, no doubt, legitimate in most cases, but by the same token, no hospital prison was more secure than the stockade, and prisoners in the hospital increased the workload of an already busy hospital staff. For these reasons, generally, the majority of prisoner examinations were performed on an outpatient basis, unless contraindicated by the presence of such illness which would ordinarily require hospitalization. This controversial issue has been presented here because of its frequent occurrence and because its amicable resolution depended upon the agreement reached by the referring agency and the psychiatric or general staff of the hospital. No specific rules or regulations were issued relative to a uniform procedure for this problem, for, probably, it was considered that the matter could best be handled by local policy.
PSYCHIATRIC RESPONSIBILITIES IN ADMINISTRATIVE PROCEDURES
Many persons were sent to the neuropsychiatrist for evaluation and treatment but, perhaps, a greater number were referred for examination and recommendation as to medical disposition and administrative discharge. (See chapter IX.) Such medical and administrative separations were of considerable concern to the psychiatrist because he could be called as a witness before a board of officers and because, not infrequently, line-of-duty determination and other administrative procedures were involved.
Medical Disposition
Under the provisions of section II, AR 615-360, and later, AR 615-361, issued on 4 November 1944, the neuropsychiatrist was frequently appointed as a member of the board of medical officers generally referred to as the 'CDD (certificate of disability for discharge) Board.' Even more frequently, however, he presented neuropsychiatric cases before this board which determined whether disposition would be accomplished by medical discharge. A major involvement of the psychiatrist with this board was the determination of the line of duty relative to disposition and commitment of psychotic patients. Those cases of psychosis whose line-of?duty status was determined to be 'yes' after prior presentation before the '600-500 Board' (p. 476) offered little difficulty in disposition except
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for a reasonable delay when transfer to a Veterans' Administration facility was necessary. Patients requiring continued psychiatric hospital care, whose illness was not considered to be incurred in line of duty, presented considerable difficulty in disposition, especially early in the war.
Commitment to St. Elizabeths Hospital.-Officers, nurses, or warrant officers with no war service, whose illness had developed in line of duty or during retirement, general prisoners, internees, prisoners of war, certain civilian employees under special contract, certain enlisted men, contract surgeons, and inmates of the Soldiers' Home could be committed to St. Elizabeths Hospital, Washington, D.C. This was accomplished upon recommendation of a board convened under the provisions of AR 600-505 (2 Aug. 1942). Such a board consisted of three officers, two of whom were required to be medical officers with one a psychiatrist, if practicable. This board only considered cases eligible for commitment to St. Elizabeths. As in the transfer of other patients to State and Veterans' Administration hospitals, committing patients to St. Elizabeths Hospital involved considerable time and effort.
Administrative Separations
Many chronic minor offenders, mental defectives, 'alcoholics,' psychopathic states including sexual deviates, and other personality disorders were referred for psychiatric evaluation but could be discharged from the service only by nonmedical (administrative) proceedings. These cases were usually first sent for psychiatric evaluation and then, if deemed appropriate, were referred to 'Section VIII' boards. This section of the general regulations (AR 615-360, 26 Nov. 1942), dealing with premature separation from the service, provided for the release from active duty of a wide variety of behavioral problems under the heading 'inaptness or undesirable habits or traits of character,' as follows:
(1) Is inapt [included mainly intellectual deficiency], or
(2) Does not possess the required degree of adaptability for military service [included enuresis and personality disorders who manifested little or no acting out behavior] * * *, or
(3)Gives evidence of habits or traits of character [included acting out behavioral disorders, alcoholism, and sexual perversions as homosexuality] * * * which serve to render his retention in the service undesirable * * * or,
(4) Is disqualified for service, physically or in character, through his own misconduct [included mainly individuals injured and rendered disabled during the commission of a military or civilian offense], and cannot be rehabilitated so as to render useful service before the expiration of his term of service without detriment to the morale and efficiency of his organization * * *.
Although section VIII (AR 615-360, 26 Nov. 1942) provided for training, reassignment and reclassification, and rehabilitation for the inapt or inadaptable categories, in actual practice little salvage was accomplished, as indicated by the number of personnel discharged under these
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provisions during World War II.19 All cases were processed by a board of three officers, one of whom, if practicable, was a medical officer. Whenever practicable, a psychiatrist was called as a witness. But more often, the psychiatrist's report of his examination and findings was utilized in lieu of testimony. The board proceedings were governed by rules of procedure applicable in special courts-martial, and counsel was not authorized. The board findings and recommendations were reviewed by the convening authority (the next higher commander) and forwarded to a major commander, usually a general officer for final action and discharge, if indicated.
Discharge under the provisions of section VIII was generally of the honorable type for the inapt or inadaptable categories by reason of considering that 'the conduct of the enlisted man during his current period of service had been such as would render his retention in the service desirable were it not for his inaptitude or lack of required adaptability for military service.' In effect, such an individual was considered to possess defects of intelligence or personality which exculpated his inability to render adequate service. Not so for the other two categories that involved acting out or psychopathic behavior, chronic alcoholism, or sexual perversion, including homosexuality, for which discharge without honor (blue) was usually given.
In all cases whether honorable (white) or discharge without honor (blue), the reason for discharge as stated in the certificate of discharge was to be 'Section VIII, 615-360; not eligible for reenlistment or induction.' Thus, from the discharge certificate alone, no differentiation could be made for the cause of the premature release from service.
On 20 July 1944, section VIII (AR 615-360) was superseded by two new regulations as follows:
AR 615-369 provided for the separation of enlisted personnel who were 'inapt' or did not possess the 'required degree of adaptability' for service, or '* * * disqualified for service because of enuresis.' An honorable (white) discharge was authorized.
AR 615-368 became the direct descendant of section VIII and dealt with 'habits and traits of character' which serve to render retention in the service undesirable and those who were 'disqualified physically or in character through misconduct.' Individuals discharged under this regulation received a blue discharge, unless the reviewing authority determined that an honorable discharge was to be given under AR 615-369.
The next revision of AR 615-368, issued on 7 March 1945, provided, as previously, for the elimination of enlisted personnel with undesirable habits and traits of character as follows: 'Psychopathic personality mani?
19Ginzberg gives figures for administrative separations from the Army (1942-45) as approximately 172,000 for inaptitude, inadaptibility, and undesirable habits and traits of character. This compares with 332,000 discharges for disability due to mental illness during the same time period. See Ginzberg, Eli, Anderson, James K., Ginsburg, Sol W., and Herma, John L.: The Ineffective Soldier: The Lost Divisions. New York: Columbia University Press, 1959, p. 61.
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fested by antisocial or amoral trends, criminalism, chronic alcoholism, drug addiction, pathological lying or sexual misconduct in the service.'
There was much dissatisfaction with these administrative discharge procedures, regardless of the need for such action. The psychiatrist was unhappy because of the considerable time required to evaluate the individual, to submit a certificate, and, when necessary, to appear as a witness. Unit commanders were unhappy because the officers comprising the 'Section VIII' board were taken away from their primary mission of training. Also, many senior officers believed that administrative separation reflected adversely upon command and leadership ability. This belief was one of the major reasons why unit commanders attempted to use medical channels to rid themselves of soldiers who should have been administratively discharged. Other unit commanders believed that since the Medical Department, especially the psychiatrist, was so closely concerned, it should be a medical problem. Yet, in effect, the administrative procedure was an administrative problem and properly belonged in the domain of the unit commander.20
Line-of-Duty Determinations
Line-of-duty determination in sickness, injury, or death was usually made by the medical officer attending the patient. However, in accidental injury, a line officer was usually appointed, and a board of line officers determined the line of duty. When mental defect, alcoholism, drug intoxication, or self-inflicted injury21 could or did result in illness, permanent disability, mutilation, or death, the psychiatrist was usually called to assist in making the LD (line-of-duty) determination.22 A just and proper LD determination was important because of its immediate and future influence upon the person or his family.
Suicide.-The major issue in successful suicide was in the LD determination. In this connection, policy and guidelines were established as follows:
Suicide is the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind. There is a presumption that a sane person will not commit suicide and this presumption prevails until overcome by convincing evidence. Evidence which merely establishes the possibility of suicide or raises a suspicion that death is due to suicide is not sufficient to overcome this presumption. However, suicide established by a preponderance of evidence sufficient to overcome the presumption
20It is interesting to note that Army regulations dealing wtih the inadequate and character disorders have always carried the number '8,' as in section VIII, AR 615-368, and currently AR 635-208. One can only speculate whether the use of the numeral 8 was intentional or purely coincidental.-A. J. G.
21AR 35-1440, 13 Nov. 1933 (revised 17 Nov. 1944), provided that the soldier would lose pay during absence for disease resulting from misconduct or due to intoxication from alcohol or drugs, and the disease was not in line of duty. A.W. 107 (Manual for Courts-Martial, 1928) also provided that loss of time from duty due to injury (and venereal disease) resulting from misconduct or due to intoxication from alcohol or drugs was bad time and had to be made up and that the injury was considered not in line of duty.
22(1) Army Regulations No. 40-1025, 12 Oct. 1940. (2) War Department Circular No. 458, 2 Dec. 1944.
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is misconduct, and death by suicide of any sane person in the military service must be regarded as having occurred not in line of duty and as the result of his own misconduct.23
The question as to whether or not the subject, at the time of his act, was so mentally unsound as to be unable to realize the direct physical and moral consequence thereof, or, having such realization, to refrain from the act, is one of fact to be determined initially by the investigating officer in each case after thorough investigation and a consideration of all available evidence.24
Self-destruction created unique problems for the psychiatrist. The decision whether mental unsoundness existed at the time of self-destruction had to be made retrospectively as, in most instances, the deceased had not previously been seen or interviewed by the psychiatrist. The psychiatrist's responsibilities were more important, for the investigating officer and the LD board25 placed considerable weight upon his opinions. The ultimate LD decision involved insurance payments, Government benefits to the dependent survivors, and the 'honor' of the deceased and his family. Frequently, the psychiatrist found it necessary to conduct an investigation of his own, by interviewing witnesses, if any, and associates or acquaintances of the deceased, in order to arrive at an unbiased opinion and decision.
Sexual Offenders
Most sexual perversions, including homosexuality, were generally lumped together by both military and civil law into a group under the generic misnomer 'sodomy.'26 Although psychiatry limited the term 'sodomy' to specific types of homosexual acts, civil and military law also included bestiality, fellatio, pederasty, and necrophilia-all of which were considered to be felonies. Other sexual perversions, such as exhibitionism, voyeurism, fetishism, and transvestism, were considered to be misdemeanors and usually came under the purview of section VIII, AR 615-360. The perpetrators of such perversions were, however, also subject to courts-martial and other articles of war pertaining to conduct prejudicial to good order and discipline.
In sexual offense cases, the psychiatrist also found himself in the unenviable position of appearing as a witness. At such times, he was frequently asked to explain the nature of the sexual perversion involved. Sometimes, in justice to the offender, the psychiatrist found it necessary to volunteer such information either in his report or in his deposition, or by actual testimony. Some courts valued such explanations and acted accordingly; others found the explanations of the psychiatrist suspect and ignored his recommendations; and still others considered him 'soft' and
23Army Regulations No. 600-550, 24 Aug. 1943.
24Ibid., 10 Nov. 1942.
25War Department Circular No. 226, 27 Oct. 1941.26(1) A Manual of Courts-Martial, p. 177. (2) War Department Memorandum No. W615-4-42, 10 Jan. 1943.
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overprotective of the culprit. Yet, most psychiatrists knew that, in some cases, the minor sexual offenses were but warnings of possible later felonies; that some sexual offenses were but symptoms of other psychiatric illness or neurosis; and that punishment rarely served as a deterrent or effected a cure.
Homosexuality.-Although many varieties of sexual deviation were observed in the Army, homosexuality was the most frequently encountered. Military codes of justice contain provision for the punishment of homosexual acts. As provided in the 'Manual of Courts-Martial,' an enlisted person in the military service charged with an overt homosexual act could be tried under the 93d Article of War for 'sodomy' and, if convicted, could receive a maximum sentence of 5 years' imprisonment. Officers involved in homosexual acts were handled similarly, by either court-martial or administrative regulations dealing with the elimination of the noneffective officer. Discharges for homosexuality were usually without honor (blue). During and since World War II, however, there has been an increasing trend for homosexual offenders to be discharged from the Armed Forces under the provisions of administrative regulations. A more detailed discussion on the management of homosexuals is contained on pages 236-239.
Relatively few military personnel were discharged from the Army during World War II for homosexuality. Menninger27 cited 'some figures for 1943' in which 'of 20,620 in the Army diagnosed as 'constitutional psychopaths,' 1,625 were presumably of the 'homosexual type'.' However, he admits that these figures are probably of little importance as an indicator of either the true incidence or significance of the problem and states that 'probably for every individual who was referred or came to the Medical Department there were 5 or 10 who were never detected.' Credence can be given to this statement by the experience of many military psychiatrists. Perhaps the most convincing evidence in this respect was that of Fry and Rostow28 who had made a survey of 183 men (former college students) known from detailed prewar studies to be homosexual. Of the 183, 51 were rejected at induction, only 29 for neuropsychiatric reasons. Only 14 were prematurely discharged from the service for various reasons. A total of 118 men who served from 1 to 5 years (58 percent as officers) with creditable records had concealed their homosexuality effectively.
The management and disposition of women homosexuals in the service was governed by the same rules and regulations that concerned men. The prevalence of homosexuality among women was not so extensive as many had predicted but presented some problems which are discussed in chapter XV, page 459.
27Menninger, William C.: Psychiatry in a Troubled World: Yesterday's War and Today's Challenge. New York: The Macmillan Co., 1948, pp. 225 and 227.
28Fry, C. C., and Rostow, E. G.: Interim Report OEM-cmr 337, 1 Apr. 1945, for National Research Council.
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CRITIQUE
Forensic military psychiatry improved during the war and after. It compared favorably with the medicolegal processes in civil life, and the treatment and rehabilitation of prisoners in the Army far surpassed that of most States. Yet, military justice was criticized during and after the war. Some of these criticisms will be mentioned, although the psychiatric implications may appear remote.
The rapidity in which a military case was prepared as well as the speed in which trial was held has been subject to question. There have been arguments for and against such speed. Militarily speaking, war cannot wait for long legal procedures for the few involved; the witnesses and the court are subject to military orders so that expediency in preparation and actual trial is necessary to assure the presence of all pertinent persons. Moreover, the Army desires swift justice for morale and deterrent reasons, as well as for the avoidance of long delays for the accused. Thus, the thorough investigation before trial usually insured that there was sufficient evidence to warrant such procedure.
The criticism that the accused had already been considered guilty by the investigating officer before the individual came to trial was seldom valid. Many military courts-martial returned a verdict of 'not guilty.' Many civilian courts conduct similar pretrial hearings in order to limit busy dockets from trying cases where evidence is insufficient or the charges are so minor as to be handled by a lower or misdemeanor court. Similarly, many general courts-martial cases were remanded to a lower, special, or, even, summary court, by responsible unit commanders and investigating officers.
Since most trials involved enlisted men, their lack of representation on the court presented a legitimate basis for criticism.
Although the 'Manual for Courts-Martial' stipulated the maximum punishments, it has been argued that such punishment has been unusually severe, sometimes, being influenced by convening or higher authority. This criticism may have been justified, particularly in units where discipline had been especially poor and where, it was believed, that setting an example would serve a desired purpose.
Another point of criticism was the court's use of the accused's previous criminal record. The psychiatrist and the sanity board, or any other board, in securing necessary information, were permitted to examine such records. Moreover, the psychiatrist was permitted to use this information to assist him in establishing a diagnosis or opinion. Further, if he appeared as a witness, he was also permitted to mention this earlier criminal record in support of his diagnostic conclusions. The court, however, was specifically enjoined from using such a record in adjudging innocence or guilt.
The military psychiatrist's position was that of an adviser to the court, regardless of how he was introduced into the case. He represented
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neither the defense nor the prosecution, as is so frequent in civil cases. At times, it was difficult for the psychiatrist to maintain this neutral role because of personal feelings or because of influences exerted by the prejudices of either prosecutor or defense. The psychiatrist was only supposed to assist the court with relevant medical testimony or required professional opinions which were within his particular technical competence. As the psychiatrist became more knowledgeable in the military sphere, he increased his value to, and was accepted by, the various military courts and boards.
Changes in the Army trial system.-Because the war demonstrated some inequities and dissatisfactions in military justice and military trial system, the following changes were made after the end of the war:29
1. Enlisted men are permitted to serve on a court-martial, if requested by the accused soldier.
2. Officers may be tried by special courts-martial; formerly, they could only be tried by general courts-martial.
3. The accused can request legal representation at pretrial examination.
4. Lesser punishments than death and life imprisonment are authorized for crimes of murder and rape.
5. Coercion or unlawful influence in obtaining a confession, although forbidden in the past, has been made a criminal offense.
6. The innocence of the accused until he is conclusively proved guilty is stressed.
7. Disciplinary powers of commanding officers, as provided by A.W. 104,30 have been expanded, and the limitations of these provisions have been made generally applicable to officers and enlisted men alike.
8. Convening authority can no longer influence the decision of a court-martial.
9. The law member of the court is required to be a qualified lawyer, and the utilization of the legal officer to decide questions of law has been established.
10. The members of a court-martial serve more as a jury, as in civil courts.
11. The appellate court of review now consists of experienced military legal specialists.
12. A separate Judge Advocate General's Corps has been established.
29Many of these changes emanated as a result of the "Report of the Secretary of War's Board of Officer-Enlisted Man Relationships,' 1947, often referred to as the Doolittle Board or Committee.
30The 15th Article of War in the 1951 edition of the 'Manual of Courts-Martial.'
