Journal of Criminal Law and Criminology

Volume 49 | Issue 3 Article 1

1958

Military Justice in the German Air Force DuringWorld War IIEdith Rose Gardner

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Recommended CitationEdith Rose Gardner, Military Justice in the German Air Force During World War II, 49 J. Crim. L. Criminology & Police Sci. 195(1958-1959)

The Journal of

CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE

VOL 49 SEPTEMBER-OCTOBER 1958 NO. 3

MILITARY JUSTICE IN THE GERMAN AIR FORCE DURING WORLD

WAR II

EDITH ROSE GARDNER

Member of the bars of the District of Columbia, Virginia and the United States Supreme Court.Captain, U.S.A.F., assigned to the International Affairs Division, Office of The Judge AdvocateGeneral, Headquarters, United States Air Force, Washington D. C.-EDiTOR.

With the signing bf the Bonn Conventions' andthe end of the quadripartite occupation, Germanyhas once again become a viable state. With itsaccession to the North Atlantic Treaty Organiza-tion,2 the Federal Republic of Germany is anactive participant in the defense of the westernworld. The agreement on the NATO status ofForces entered into force for the Federal Republicof Germany on July 25, 1958. In the new Republic,military services, army, navy and air force, arebeing organized and trained.3 In the light of thesedevelopments it is worthwhile to examine themilitary justice system in Germany during WorldWar II, as past practices may influence the organi-zation aiad control of contemporary German armedforces. The material which follows was obtainedfrom the files of the Archives of the Air University,USAF, of documents prepared at the close ofWorld War II by German officials. This discussionis concerned with the organization and function ofmilitary justice in the German Air Force during

I Protocol on the Termination of the OccupationRegime in the Federal Republic of Germany, signed 23October 1954, effective May 5, 1955 11955] 6 U. S.Treaties & Other Int'l Agreements 4117, T.I.A.S. 3425.

2 North Atlantic Treaty: Accession of the FederalRepublic of Germany, signed October 23, 1954, ef-fective May 5, 1955, [1955] 6 U. S. Treaties & OtherInt'l. Agreements 5707, T.I.A.S. 3428.

3 With the passage of a conscription bill, the FederalRepublic of Germany was to have 96,000 men in theArmed Forces by late 1956 and a probable total of210,000 by December, 1957. N. Y. Tnms, July 10,1956, p. 10, cols. 3-6: A twelve-month term of servicehas been proposed. N. Y. TImEs, July 29, 1956, p. 7,cols. 1-2.

In regard to United States assistance in training ofarmy personnel, see T.I.A.S. 3753, December 12, 1956,and, of navy personnel, T.I.A.S. 3754, December 12,1956; on the sale to Germany of certain military equip-ment and services under the Mutual Security Act, of1954, see T.I.A.S. 3660, October 8, 1956.

the war years; the development and organizationof the Legal Department of the German AirForce; the composition, procedure and personnel ofits court-martial system; principle offenses andpunishments therefor; types of punishment; andtreatment of non-German nationals before courts-martial. The similarities with American court-martial procedures are apparent and are discussedin footnoted material.

Military law of any armed force follows closelythe national law, with variances according to theneeds of discipline and circumstances. The NaziGovernment's concept of justice was "right is thatwhich is useful to the nation". This discussion mayshow how closely military justice in a singlebranch of the German armed forces, the AirForce, evolved from a tradition of civil law, con-formed to that precept.

BACKGROUND OF GERMAN MimTARY JUSTICE

Two tenets of German military justice were thatoffenses were judged by comrades-in-arms andthat discipline was the sole responsibility of thesuperior officer concerned. The doctrine of trying asoldier by soldiers existed from the time of theearliest German standing armies. Within certainlimits, it was the right only of a commandingofficer to determine and impose disciplinary actionagainst a subordinate, with no higher authorityhaving a right to intervene or to modify his de-cision. In criminal offenses, the superior officerconcerned submitted a charge sheet or summary ofevidence [Tatbericht] on the offense to the ap-propriate established court-martial and proceed-ings were' begun on the basis of his report. Cor-relatively, any superior officer who knew of anoffense had a duty to submit such a charge sheet

EDITH ROSE GARDNER

and was liable for failure to do so.4 Civil policepower and jurisdiction ended at the air stationboundary. A court-martial could ask the as-sistance of the police in investigations, but evenif a soldier were apprehended in the act of com-mitting an offense outside the military area, thepolice were obliged to turn him over to the nearestmilitary authorities. 5

However, after World War I, this exclusivejurisdiction was abolished by the Social Demo-cratic Government's termination of a "specialmilitary law" for the land forces [Reichswehr].Thereafter, members of the military service weretried and sentenced by civil courts, with armylawyers [Heeresanwitlte] protecting their interests,and with investigations conducted by civil prosecu-tion authorities. Only the units of the Navy afloatwere permitted to retain the traditional conceptand function of military law.

The National Socialist Government re-established military jurisprudence in the ArmedForces by a decree effective January 1, 1934, onthe basis of the 1898 Militaiy Penal Code. TheGerman Air Force [hereinafter referred to as GAF]created its own judicial system in October, 1935.The 1934 law provided for two superior courts: thecourt-martial [Kriegsgeriht] and the higher court-martial [Oberkriegsgericht]. In 1936 the SupremeCourt of Justice of the Armed Forces 6 [Reichs-

4 Cf. UNIORM CODE OF MILLrrARY JUSTIC, Article98, 70A Stat. 69 (1956), 10 U.S.C. §898 (1956). Non-compliance with Procedural Rules.

"Any person subject to this chapter who-(1) is responsible for unnecessary delay in the dispo-

sition of any case of a person accused of an offenseunder this chapter; or

(2) knowingly and intentionally fails to enforce orcomply with any provision of this chapter regulatingthe proceedings before, during, or after trial of anaccused; shall be punished as a court-martial maydirect."

Cf. UNIFORM CODE oF MILrARY JusTicE, Article14, 70A Stat. 41 (1956), 10 U.S.C. §814 (1956). De-livery of Offenders to Civil Authorities.

"(a) Under such regulations as the Secretary con-cerned may prescribe, a member of the armed forcesaccused of an offense against civil authority may bedelivered, upon request, to the civil authority for trial.

(b) When delivery under this article is made to anycivil authority of a person undergoing sentence of acourt-martial, the delivery, if followed "by convictionin a civil tribunal, interrupts the execution of the sen-tence of the court-martial, and the offender after havinganswered to the civil authorities for his offense shall,upon the request of competent military authority, bereturned to military custody for the completion of hissentence."

6 UNIFORM CODE OF MIULTARY JusTIcE, Article 67,70A Stat. 60 (1956), 10 U.S.C. §867 (1956) providesfor a Court of Military Appeals with three civilianjudges and for the scope of their review authority.

kriegsgericht] was instituted as a general court ofappeal and as the court of first instance for hightreason and other serious crimes. During WorldWar I, the Wartime Criminal Proceedings Order[Kriegsstrafverfahrensordnung] abolished the su-perior courts-martial but retained the SupremeCourt of Justice.

LEGAL DEPARTMENT or THE GEIRAN AIR FoRcE

DEVELOPMENT

The highest supervisory authority of the GAFlegal branch was the Director of German AirForce Legal Matters [Chef der Lujiwafen-rechtspflege] at the High Command of the GermanAir Force [Oberkommando der Luftwaffe] in Berlin.

The first Director of the legal department was anindividual who had previously dealt with airtraffic legislation in the Reich Ministry of Com-munication. Initially, the Department was asection of the Central Office [Zentralant]; in 1942it was under the Director of Air AdministrativeMatters and Personnel [Chef Luftwehr]; in thespring of 1944, it was transferred to the Director ofManpower and National Socialist Indoctrinationof the German Air Force [Chef der PersondlenRiistung und Natiotal-Sozialistisclen Fiihrung derLuftwaffe]. In December, 1944, the Departmentbecame immediately subordinate to the ReichMinister for Air and Commander-in-Chief, GAFY

In 1934, with the foundation of the Reich AirMinistry and the Legal Department, the Directorwas primarily responsible for advising the entireAir Ministry on all questions relating to matters ofcontract, civil and public law, air law, air traffic lawand Reich legislation. These problems were grad-ually assumed by other departments of the Min-istry. The Director was then mainly concernedwith air traffic laws, drawing up a new Code ofMilitary Law [Milidrsrafgesetzbuch], and buildingan independent GAF judicature. These functionsbecame increasingly important with the expansionof the GAF and the outbreak of war. The Directorfurnished to the Commander-in-Chief legal adviceon his rights as Convening Authority [Gerichitsherr]after the wartime elimination of the two superiorcourts-martial; on the confirming or rescinding ofsentences for more serious punishments, such asdeath or degradation of officers; on uniformity inthe administration of justice; and on the main-tenance of discipline among the troops.

The Director of GAF Legal Matters was the

7 At this time the office holder was Hermann Goering.

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GERMAN MILITARY JUSTICE

commander of all judges in the GAF. As legaladvisor to the Reich Minister for Air and Com-mahder-in-Chief, GAF, he had the right of directaudience with the Commander-in-Chief.

DUTIES AND ORGANIZATION

The responsibilities of the Director of GAFLegal Matters were: preparatory work in caseswhere only the Reidhs Marshal could confirm ormitigate a sentence; handling all petitions andrequests on sentences submitted to the ReicksMarshal personally; standardizing legal practice inthe GAF; organizing and employing personnel inthe GAF legal branch; representing the ReichAir Minister in collaboration on Reich legislation;collaborating in the development and applicationof the penal code; advising the Chief of the GeneralStaff, the Director for Air Matters, and all de-partments of the Reich Air Ministry on legalmatters; superintending and directing all legaldisputes concerning the aviation department ofthe Reich Treasury; and dealing with cases ofsabotage in the GAF.

The organization of the Department was fre-quently revised to handle these manifold obliga-tions. Essentially, there were three Divisions[Abteilungen]. The first 8 was responsible for the

8The duties of the First Division [Abtelung 1] weremainly administration of personnel and miscellaneousjudicial functions. These included checking and stand-ardizing the administration of justice; controlling theconduct of field courts-martial; developing rules forGAF courts-martial; supervising the Redemption byCombat Units [Bewahrungseinsatz]; advising theDirector of Manpower and National Socialist In-doctrination on penal matters; confirming sentencesimposed by the Special Duties GAF Field Courts-Martial; considering execution, reprieve, mitigation,repeal and abrogation of sentences and retrials; com-pensating innocent persons unjustly held for investiga-tions and investigating the alleged deaths of missingpersons. The Division assisted the Director in hisresponsibilities for insuring that courts-martial had theright type and number of personnel and for utilizingand promoting them. The constant organizationalchanges in the GAF, the setting up of new units, andalterations in compositions and strength required cor-responding changes in the composition of courts-martial. The First Division selected new judges fromcandidates, trained them, considered their probationand acceptance as full judges, assessed and assignedthem. Formal appointment, promotion and assign-ment of judges was made on recommendation of theDirector by the Personnel and Records Office for Officersand Officials, which also dealt with their rights asofficers and their payment. The Chief of the FirstDivision was also the legal adviser to the Secretary ofState and later to the Director of Manpower and Na-tional Socialist Indoctrination, as well as acting as aHigher Convening Authority [Gerichtsherr].

organization and personnel; the second, 9 adminis-tration and uniformity of military justice; and thethird,1' other affairs not strictly within the scope ofmilitary justice. By 1944 the Department num-bered sixty people. The approval of the Nazi Partyauthorities, previously necessary for promotionsand appointments, was dispensed with during thewar, and the criteria became professional andmilitary aptitude. Wartime responsibilities andincreased incidence of serious crimes increased theduties of the Department.

SPECIAL DUTIES

The Director of GAF Legal Matters had, inaddition to routine duties, special tasks assigned tohim by the Commander-in-Chief.

For uniformity in dealing with political cases andcrimes of corruption, which were serious enough fora possible death penalty, the German Air Force

9 The Second Division [Abteilung 2] was headed bythe Director personally. He conferred directly with theCommander-in-Chief and ReichsMarshal on the con-firmation of verdicts, the abrogation of sentences al-ready imposed, and matters of political nature thereon.For uniformity in the administration of military justice,the Commander-in-Chief made his decisions on theadvice and recommendations of the Director on or-ganization of courts-martial, powers of a ConveningAuthority, laws and directives for the administrationof justice. As the most severe sentences required actionby the central authority of the highest standing, muchtime was spent on confirmation, mitigation or rescissionof sentences and pleas for mercy. From documentsforwarded for the decision of the Commander-in-Chiefin the administration of justice, the Director had anunderstanding of GAF discipline, morale and courts-martial, and, thereby, was able to direct the handling ofparticular court-martial offenses and measures to rein-force discipline and morale among the troops. Forknowledge of his entire command, and as shortages ofpaper, manpower and time curtailed reporting duringthe war, the Director held quarterly conferences withthe Chief Judges of the individual numbered Air Forces[Luftflotten]. Gradually, most of the less serious crimes,for which the sentence could be confirmed by the Con-veiing Authority, were not reported centrally. Theextensive peacetime reporting system narrowed so thateventually the Director was advised only of sentencesrequiring confirmation or pardon only by the Com-mander-in-Chief; offenses of insubordination; politicalsentences; and serious cases of corruption.

10 The Third Division [Abteilung 3] was concernedwith civil affairs of the GAF and advice to the GeneralStaff and the Reich Air Ministry. The matters includedtaxation; interpretation of treaties; laws, orders anddecrees of other Ministries and the Armed ForcesSupreme Command; drafting laws and orders otherthan those for passive air defense and air traffic law,and collaborating on the latter; collaborating on legisla-tion on public bodies, military law, constitutional law,administrative law, voluntary jurisdiction, penal law,civil law and the law of criminal procedure; advisingon international law and its violations; settling actionsfor damages; and conducting lawsuits.

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EDITH ROSE GARDNER

commissioned a Special Duties Court-Martial[Feldgericht a.b.V] to handle them. The Chief ofthe First Division of the Department was theConvening Authority and an order of the Com-mander-in-Chief referred cases to it. The 1934"Malice Law" [Heiintiickegesetz] specified as anoffense the making of false, inflammatory or gar-bled statements in public that might endanger theReich or damage the prestige of the government,of the National Socialist Party or of leading Stateor Party personalities. The Special Duties Court,composed of experienced judges, distinguished it-self by its moderate treatment of these cases andinflicted heavy punishment only on offenders who,by reviling authorities to subordinates or in public,had endangered discipline to an intolerable extentfrom a military point of view. The Fiihrer becamedissatisfied with the administration of justice bythis particular court and with military courtsgenerally for excessive clemency in punishingpolitical offenses.Y In 1943 he ordered all politicalcases, breaches of the "Malice Law", sedition andhigh treason committed by sei vice personnel, with-drawn from military jurisdiction and transferredto a special session of the Senate [Sondersenat] ofthe Reich Supreme Court. This court provedequally unsatisfactory and "derelict in duty" andthe Ffihrer, in 1944, hoping for more severe punish-ments, ordered that all political offenses occurringin the Armed Forces be referred to the civilcourts-People's Courts and Special Courts-andthat the Security Service [Gestapo] conduct in-vestigations, even within the Armed Forces. How-ever, these oral instructions were not committedto writing and were never executed, although theSenate was dissolved. As a result, documents werereturned without-action to the military courtsafter months of delay.

In December, 1944, the Commander-in-Chiefcreated within the Department a Staff for SpecialTasks and Suggestions to replace various specialcommissions which investigated abuses in theGAF, including armament, command or opera-tions. Inquiries were instituted after military re-

" One example was the revocation by the Flibrer of asentence to five years' imprisonment adjudged against acolonel for insulting the Fiihrer, as he had expected thedeath sentence. The GAF Commander-in-Chief re-scinded a three year sentence imposed on retrial, on theground that it was too lenient in view of the Fillirer'sexpression. On a third trial, a sentence to three years'imprisonment was approved by the GAF Commander-in-Chief, but was later converted to a period of "re-demption by combat".

verses to assess objectively the sources of error orto determine the cause of failure of a new type ofaircraft by investigation in the department direct-ing its development, in the factory constructing itor in testing and experimental stations." Anony-mous letters of reports from the Security Service[Gestapo], indicting senior air officers or officials ofthe aircraft industry were often the basis for suchinvestigations. These were usually proven to begroundless denunciations and rarely led to court-martial proceedings. Although time-consuming anddifficult to carry out, these extra-judicial investiga-tions were conducted by objective GAF judgesexperienced in inquiry procedure and they provedof value to the authorities by clarifying the situa-tion. For these "special tasks", the Chief of theSpecial Staff had the judicial powers of a Conven-ing Authority with the right to intervene in thesphere of any other Convening Authority and tohold a court-martial of his own, conducting in-vestigations and instituting proceedings on thespot, or, to refer the matter to the GAF SpecialDuties Court-Martial. He had also the disciplinarypowers of a higher commander. [HdhererBefchlshaber] over all members of the GAF. Hecould order arrests or investigations, prefer charges,issue instructions to lawyers and military courts,and, within the limits of the powers of the GAFCommander-in-Chief, confirm sentences, exceptloss of rank by officers, and confer pardons. TheChief of Staff for Special Tasks conferred with theDirector of GAF Legal Matters and the Com-mander-in-Chief, GAF, on verdicts by his courts.

Although the German Air Force had its own legalorganization, it was subordinate to the SupremeCommand of the Armed Forces [Oberkommando derWehrmacht], which, without interferring with theorganization or courts-martial, issued generalorders on legal matters for the whole of the Armed

12 U. S. Air Force Regulation 123-1, dated 12 April1956, entitled "The Inspection System" makes in-spection a command responsibility and extends theinspection system into every field of Air Force affairs.This includes inquiry into adequacy and preparednessof the Air Force to accomplish its role in nationaldefense; the state of training readiness and combatcapability and logistical support; discipline, morale,health and welfare of units and individuals; programingand effectiveness; safety and economy of practices andprocedures; internal security; personnel administration,procurement and pay; effective use of personnel, mate-riel, installations, facilities and funds; all aspects ofprocurement of materiel and services; compliance withlaws and regulations; public relations and administra-tion of funds and activities. The Office of the InspectorGeneral carries out these functions.

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Forces. These orders included treatment ofcivilians in occupied areas, settlement of jurisdic-tiohal disputes between GAF and Army courts andestablishment of a combined Armed Forces Court.The Legal Department of the Supreme Command[Wehrmachtreclitswesen] was composed of personnelof all three branches of the military service.

THE COURT-MARTIAL SYSTEM.

TYPES OF COURTS AND THEIR JURISDICTION

As has been said, the two superior military courtswere the court-martial [Kriegsgericht] and the highcourt-martial [Oberkriegsgericht], with a SupremeCourt of Justice for the Armed Forces [Reichs-kriegsgericht]. The first two of these courts wereeliminated but the latter was retained with juris-diction over cases of general officers of all branchesof the service, cases of high treason, treachery anda few other serious crimes against the regime. Allpolitical offenses, breaches of the "Malice Law"[Heimtiickegesetz], sedition, and high treason, com-mitted by military personnel, were withdrawnfrom military courts and transferred to civil courts.

The GAF field court-martial, with an independ-ent judiciary, was the Feidgericht. (This is dis-tinguished from the Special Duties Court-Martial[Fddgericht a.b.V.]) Each command had an un-specified number of courts-martial [Feldgerichte],depending on the number of units stationed withinan Air Force Command [Luftflotte], and each GAFcommander with the powers of a ConveningAuthority [Gerichtsherr] regulated his own court-martial. By delegated authority, the commander ofa unit could supervise courts-martial for lighteroffenses. Offenses carrying a sentence of a year ormore were referred to trial by the commander of amajor air command [Luftgau]; as, from a companycommander through the regiment and division tothe zone. The Convening Authoriites [Gericht-sherren] for crimes involving heavier penaltieswere the Commanders-in-Chief of individual AirForces [Lutftflotten]. The Commaner-in-Chief,GAF, reserved to himself the authority in casesfor which there could be the most serious sen-tences, including loss of rank of officers.

Before the war, the powers of a ConveningAuthority were granted only to officers command-ing Air or Flak Division, to officers commandingAir Zones and to Commanders-in-Chief of indi-vidual Air Forces. The latter were Higher Conven-ing Authorities, comparable to the United Statesmilitary General Court-Martial Authority. Grad-

ually powers of a Convening Authority wereconferred on officers in charge of corps andindependent or isolated units."

COMPOSITION OF COURTS-MARTIAL

The participants in a GAF trial were, in additionto the accused, the Judge, court members, Prose-cutor, Recorder and Defense Counsel. The numberof participants varied with the type of court.

The Judge, 4 a Deputy judge Advocate [Kreigs-gerichtsrat] was the court president. He was usuallythe highest legal official attached to the unit but incases of serious offenses he might be the ChiefJudge and Legal Adviser [Chefrichter und Recht.a-berater] of the appropriate individual Air Force[Luflflotte] Headquarters. The members of thecourt were lay persons, one a field grade officer andthe other an "assessor" with a rank at least as highas that of the accused. The "accessor" was the so-called "Prisoner's Peer" [Kameradenrichter], aninnovation on the 1898 Military Penal Code intro-duced by the 1934 law. The Prosecutor was eithera legal official with the unit, a Deputy JudgeAdvocate [Kriegsgerichtsrat], or a Senior JudgeAdvocate [Oberkriegsgerichtsrat] of field grade rankor he was the -Investigating OfficerU [Gerichtsof-

13The following units had their own permanentcourts-martial [Feldgerichle]: Air Zone [Lufigau], AirForce Corps [Fliegerkorps], Air Force Division [Flieger-division], Fighter Corps [Jagdkorps], Fighter Division[Jagddivision], Anti-Aircraft Corps [Flakkorps], Anti-Aircraft Division [Flakdivision], Parachute Corps [Fall-sckirmkorps], Parachute Division [Fallscirmdivision],and even in Flight Leader [Fliegerfiahrer] and TrainingDivisions and Training Schools.

14 "The Articles of War, as amended, and the 1949Manual make, clear that the law member's positionwith respect to a court-martial is cloiely analogous tothat of the judge in the criminal law administration ofthe civilian community. Basically and obviously thelaw member, like the judge, is the final arbiter at thetrial level as to questions of law. He is the court-mar-tial's adviser and director in affairs having to do withlegal rules or standards and their application. He is theexternal and visible symbol of the law in a process whichhas long been characterized as juristic and must gen-uinely be regarded as such." U.S. v. Berry, 1U.S.C.M.A. 235, 2 C.M.R. 141, 146 (1952).

These principles are also applicable to the Law Officerunder the Uniform Code of Military Justice. The LawOfficer has a status similar to that of the Law Memberunder the 1949 Articles of War, but has no vote.

See, Comparative Study of Military Justice Reforms inBritain and America, 6 VA~N. L. R. 309 (1953), on thelaw officer.Is Cf. UNuoas CODE OF MarrARY JUSTi-E, Article

27, 70A Stat. 46 (1956), 10 U.S.C. §827 (1956). Detailof trial counsel and defense counsel.

"(a) For each general and special court-martial theauthority convening the court shall detail trial counseland defense counsel, and such assistants as he con-

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fizier]. The latter was the more usual. In a casewhere the Prosecutor had not conducted the pre-liminary inquiry, the Investigating Officer wasthe Recorder [Verhandlungsleiter or Justizin-spektor], so that both could act as either Re-corder or Prosecutor. The Defense Counsels werenot required to be legal officials, but it was pre-ferrable that they have "some legal experience."1

The normal court-martial consisted of oneJudge, one field grade officer, one Prisoner'sPeer and the Counsels. If the offense were one forwhich 15 years' imprisonment or the deathpenalty were authorized, there were two Judges,one field grade officer and two Prisoner's Peers.Higher courts-martial were also composed of twoJudges, one field grade officer and two Prisoner'sPeers, or, in serious cases, an additional one ofeach. Counsel were always present.

The number of Judges allocated to variouscourts-martial jurisdictions depended upon thevolume of work. Large courts-martial of AirZones [Luftgaue], with territorial powers and

siders appropriate. No person who has acted as investi-gating officer, law officer, or court member in any casemay act later as trial counsel, assistant trial counsel, or,unless expressly requested by the accused, as defensecounsel or assistant defense counsel in the same case.No person who has acted for the prosecution may actlater in the same case for the defense, nor may anyperson who has acted for the defense act later in thesame case for the prosecution.

(b) Trial counsel or defense counsel detailed for ageneral court-martial-

(1) must be a judge advocate of the Army or the AirForce, or a law specialist of the Navy or Coast Guard,who is a graduate of an accredited law school or is amember of the bar of a Federal court or of the highestcourt of a State; or must be a member of the bar of aFederal court or of the highest court of a State; and

(2) must be certified as competent to perform suchduties by the Judge Advocate General of the armedforce of which he is a member.

(c) In the case of a special court-martial-(1) if the trial counsel is qualified to act as counsel

before a general court-martial, the defense counseldetailed by the convening authority must be a personsimilarly qualified; and

(2) if the trial counsel is a judge advocate, or a lawspecialist, or a member of the bar of a Federal court orhe highest court of a State, the defense counsel ap-pointed by the Convening authority shall be one ofthe foregoing."

A member of the court who has acted as investigatingofficer is subject to challenge. MANur. FOR COmS-MARTiAL, UNrrED STATES, 1951, par. 62(f)(5) and

_par. 64.It is prejudicial to the rights of an accused if his

counsel at a pre-trial investigation is appointed onorders as the Assistant Trial Counsel, even though hebe not present in court. ACM 5777, Bishop, 6 CMR 719.

"6 The requirement in United States military courtsis clear. Cf., supra note 15.

many subordinate units, were assigned manyjudges; for example, the Third Air Command[Luftgau III] in Berlin had at times more thantwenty assigned Judges. The courts of trainingunits were also well-manned, but the courts ofthe actual fighting forces had few Judges, neverless than two: a recorder and prosecutor.

PERSONNEL AND DUTIES

Convening Authority. Officers in charge of com-mands with permanent courts-martial [Feld-gerichte] were not trained legal specialists, but inregard to legal matters were known in the judicialcapacity of Convening Authorities [Geriehi-sherren] and were addressed as such. Their duties,before and after trial, included the powers ofand responsibilities for: preferring charges afterreceiving the full report of the InvestigatingOfficer of his preliminary examination; issuing awarrant of arrest or order of confinement toquarters, as necessary; effecting the approvedpenalty in the shortest possible time; and 6rder-ing a stay of execution and reopening the case ifhe disapproved the decision on the basis of factsknown to him, new evidence, or a plea of the ac-cused and counsel that the case was not proven.Further, apparently any Convening Authoritywas empowered to confirm the imposition of thedeath penalty in the case of non-commissionedofficers and lower grades if the Command ChiefJudge and Legal Adviser of the individual AirForce [Chefrichter und Rechtsberater der Luft-flotte] were not readily accessible. He was obligedto have two Deputy Judge Advocates [Kriegs-gerichtsrifte] witness and confirm the execution.

Investigating Officer. The Investigating Officer[Gerichtsoffizier] was a non-legal officer appointedby the Convening Authority to serve within hisassigned unit. Transfer to another unit auto-matically relieved him of his duty and capacity.It was preferrable, but not essential, that he havesome legal experience. His assignment was under-taken only after an oath was administered by aDeputy Judge Advocate [Kriegsgerichtsrat]. Hisduties included conducting investigations, carry-ing out search and seizure of evidence in the case,arresting an accused if necessary, reporting thearrest to the Convening Authority, working withthe competent court-martial, replacing the prose-cutor during the trial if the competent legalofficial were not available and the Convening

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Authority ordered it, and conducting post-mortem examinations.

J.udge Advocates. As World War II commenced,the GAF had 150 well-trained, active Judges.The number rose to 500 during the war and fell to350 in 1943 as the younger men were assigned tothe fighting forces, after a period of flight trainingand usually at their own request. The problem ofrecruitment and training of qualified judicialpersonnel was more formidable inasmuch as theGAF legal system originated in 1935 and the warended in 1945.

The original cadre of 150 judge advocates [theOberkriegsgeridhtsrae were senior to the Kriegs-gericltsrdte] was composed of volunteers whowere accepted for service with the GAF by theReich Ministry of Justice. These were generallyjudges with experience in civil law; the rest,lawyers. The majority were born about 1900 andwere men who no longer felt at home in civiljurisprudence, because of increasing discrimina-tion and political interference, and who fearedcurtailment of their judicial independence. Theyoung judges who later joined the service did sofor some of the same reasons, as well as from theattractions of problems of military justice and ofassociation with contemporaries encountered onreserve tours. The applicants were numerousand the GAF was able to select the best. Thequalifications were professional ability, favorablerecommendations and, if possible, reserve train-ing. Membership in the Nazi Party was an ad-vantage, but was not essential as the ArmedForces [Wehrmacht] were traditionally non-political. The wartime additions to the departmentwere deferred service [Beurlaublenstand civiljudges of provincial, municipal and petty sessionscourts. GAF Judges were trained for six months,served six months probation before acceptancewith a GAF court-martial, and continued theirtraining in courses and conferences and by at-tachment to larger courts. There was no politicaltraining.

At the inception of German military jurispru-dence, lawyers were merely legal advisors to seniorofficers responsible for exercising judicial powers[Gqrichdsherren]. They later represented the prose-cution and eventually attained the status ofJudges, conducting proceedings against militarypersonnel. The Judges, as presidents of courts-martial, had less independence than in civilcourts, inasmuch as the Convening Authority had

to concur in their decisions and acts of openingan inquiry, revoking a charge, ordering arrestand executing a sentence.

The Higher Convening Authorities, Com-manders of Air Commands [Luflflotten] had asenior official as Chief Judge and Legal Advisor[Chefrichter und Rechisberater] and two or threeexperienced assistant judges to control all courts-martial [Feldgerichte] within the command. TheseChief Judges managed personnel matters of sub-ordinate judges, drew up reports on verdicts,held conferences and, especially, settled disputedlegal points and attempted uniformity in the ad-ministration of justice. For these purposes, thecourts were grouped into "inspection districts"[Dienstaufs0itsbezirke], from which a judge cameto a quarterly conference with the Chief Judge.

The Air Zone [Luftgau] had the largest numberof permanent legal officials, with one Senior JudgeAdvocate [Oberkriegsgerichsrat], seven DeputyJudge Advocates [Kriegsgerichtsr&e] and eightRecorders [Justizinspektoren]. The lowest unitwith its own legal department was the Groupwith two Deputy Judge Advocates and one Re-corder, although a company might have a captain[Hauptmann] to deal with legal matters. All sub-ordinate units performed essentially the samefunctions as the Air Zone legal office with itswide administrative area and legal problems. TheSenior Judge Advocate gave legal advice to hiscommander, supervised courts-martial within hiscommand and dealt with matters of organization,administration and personnel. The Deputy JudgeAdvocates rendered legal opinions; appeared incourts; handled verdicts and pu~nishments, in-eluding death penalties; gave legal assistance;determined claims for personal injury and prop-erty damage; lectured the troops; and assisted theReich Labor Service [Reichsarbeitsdiensf] andMotor Transportation Corps. By close contactwith the troops, they were able not only to dis-cover an offender, but also, often, to preventwrongdoing.

PROCEDURE

Criminal action against a member of the GAFwas instituted when the Commanding Officer sub-.mitted a Charge Sheet [Tatbericht] on the offenseto the appropriate court-martial. On authority ofthis report, the court began proceedings, con-ducted its investigation and issued an order forarrest as required. The President or Judge of the

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EDITH ROSE GARDNER

court could utilize civil authorities to assist in theinvestigation, but generally he used the servicepersonnel, specially trained and appointed bythe unit for the purpose. These InvestigatingOfficers [Gerichisoffiziere] had usually alreadyhelped draw up the charge sheet and procure thenecessary documents.

The results of the investigation were referredto the Convening Authority by the Judge. If thecharges proved groundless, proceedings weresuspended. If the offense proved minor or thefault of the guilty party slight, the ConveningAuthority could dispense with the charges andeither impose disciplinary punishment himself or-leave this to the discretion of the accused's im-mediate superior officer. If the charges were sus-tained, the officer in charge of the inquiry usually

- acted as Prosecutor before the court-martial.17

The Judges had generally had extensive train-ing in civil practice and presumably the courts-martial followed the law of evidence and proce-dure of the criminal courts of German civiljurisdictions.

All unit headquarters commanders were re-sponsible for maintaining a Record of Punish-ments [Strafbuch] indicating punishments im-posed on personnel of the unit by the commanderhimself, by a court-martial, or by a civil court.Reports of courts-martial forwarded to the GAFLegal Department aided in checking the qualityof judges and directing the administration ofjustice.

REVIEW

The amount of work of GAF legal officers in-creased during World War II. During both theFirst and Second World Wars, the superior courts[Kriegsgericht und Oberkriegsgericht] were dis-pensed with and review became only a matter ofconfirmation of the sentence by the ConveningAuthority. 5 Prior to confirmation of a sentence

17 Cf. supra note 15.18 Cf. UNIFORM CODE OF MILITARY JUSTICE. Article

60 [70A Stat. 57, (1956) 10 U.S.C. §860 (1956)] pro-vides for action on a record of trial by the ConveningAuthority. Article 61 [70A Stat. 58 (1956), 10 U.S.C.§861 (1956)] provides for a written opinion by the staffjudge advocate on a general court-martial record oftrial, for the Convening Authority. Articles 65 and 66170A Stat. 59 (1956), 10 U.S.C. §§ 865, 866 (1956)]provide for review of general courts-martial and specialcourts-martial involving a sentence to a bad conductdischarge by a Board of Review and The Judge Advo-cate General of the appropriate service. Article 67170 A Stat. 60 (1956), 10 U.S.C. §867 (1956)] givesthe appellate jurisdiction of the Court of MilitaryAppeals. Article 71 [70A Stat. 62 (1956), 10 U.S.C.

in every case, a report had to be submitted to theConvening Authority concerned by a legal ad-viser.

The Fiihrer reserved to himself the right toconfirm or rescind sentences to death imposedagainst officers and sentences against generalofficers. In the absence of such a reservation, theseprerogatives were otherwise assigned to the Com-manders-in-Chief of the several services. TheGAF Commander-in-Chief reserved to himselfthe right of action on all other death sentences,all sentences involving loss of rank or imprison-ment of officers, and all sentences in cases of in-subordination and rape. Later the Commanders-in-Chief of Air Commands [Luftflotten] weregranted -the power to act on sentences of im-prisonment and those not involving loss of rankin officer cases. These commanders had the rightto rescind sentences submitted to them for review.The power to confirm other sentences was dele-gated to the Convening Authorities. If a Con-vening Authority did not choose to confirm averdict, he had to submit it to the Air Command[Luftflolle] Commander-in-Chief, who could con-firm or rescind it. If the sentence were disap-proved, the case could be referred for retrialeither to the same court of different compositionor to another court.19

In 1944, the responsibility for the execution ofall sentences imposed by courts-martial was inthe Office for the Execution and Mitigation ofSentences [Aint ftr Vollstreckungs- und Gnaden-sachen] under an Air Marshal [Genwral der Flieger],as Convening Authority, and directly subordinate

§871 (1956)] provides for Presidential approval of asentence of death or against a general officer; for ap-proval of the service Secretary of dismissal of an officer;and approval by the Court of Military Appeals of asentence to discharge of other ranks.19 Cf. UNIFORM CODE or MILrTAY JusTicE, Article

63, 70A Stat. 58 (1956), 10 U.S.C. §863. Rehearings."(a) If the convening authority disapproves the

findings and sentence of a court-martial he may, exceptwhere there is lack of sufficient evidence in the record tosupport the findings, order a rehearing. In such a casehe shall state the reasons for disapproval. If he disap-proves the findings and sentence and does not order arehearing, he shall dismiss the charges.

(b) Every rehearing shall take place before a court-martial composed of members not members of thecourt-martial which first heard the case. Upon a re-hearing the accused may not be tried for any offense ofwhich he was found not guilty by the first Eourt-martial,and no sentence in excess of or more severe than theoriginal sentence may be imposed, unless the sentenceis based upon a finding of guilty of an offense not con-sidered upon the merits in the original proceedings, orunless the sentence prescribed for the offense is manda-tory."

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GERMAN MILITARY JUSTICE

to the Commander-in-Chief, GAF. This 'was torelieve courts-martial of post-sentencing matters,of- execution of sentences, pardons, requests forclemency, automatic revision or remission after astated period, and supervision of redemption bycombat units. In mid-1944, in special cases wherethe regimental commander was the confirmingauthority, the death penalty against non-com-missioned officers and lower grades could be im-posed by his "Court on the Spot" [Standgericht],without reference to the Convening Authority. Insuch cases the Regimental Commander wasknown as Standesgerichtsherr.

ARIMED FORCES COURTS

In certain special circumstances, Armed ForcesCourts-Martial [Wehrmachtgerichte] were created,with representatives from all three branches ofthe service. An example was that organized onCrete in mid-1944 when the island was blockadedand in danger of isolation and invasion. Army,Navy and Air Force personnel were stationedthere, but often their competent ConveningAuthorities were based elsewhere. Ordinarily, anaccused might have to be transported to Greecefor trial and punitive action would be difficultand delayed. The Fiihrer, Supreme Commanderof the Armed Forces, appointed the Commandantof the Fortress of Crete as Convening Authorityfor all branches of the German forces assignedfor duty on the island, with the power of confirm-ing and pardoning sentences. This power extendedto prisoners of war and local civilians, always thecase in occupied territory. The composition ofthe Armed Forces Court20 on Crete was a judge

20 Cf., Ularoxm CODE or MarARY JusrIcE, Article17, 70A Stat. 43 (1956), 10 U.S.C. §817 (1956).

Jurisdiction of Courts-martial in General.

"(a) Each armed force has court-martial jurisdictionover all persons subject to this chapter. The exercise ofjurisdiction by one armed force over personnel of an-other armed force shall be in accordance with regula-tions prescribed by the President ......

A discussion of the reciprocal jurisdiction of a com-mander of a joint command or joint task force underdirection of the President or the Secretary of Defense,with concurrence of the Secretaries of the Departmentsconcerned, is contained in 4(g), MANUAL FOR COURTS-M ARTIAL, UNITED STATES, 1951.

Executive Order 10428, January 17, 1953, delegatedto the Secretary of Defense the authority to empowerthe convening of armed forces general courts-martial.DEPARTMENT or DEFENSE DIREcTvEs No. 5510.1,5510.2 and 5510.3 of July 20, 1953, conferred suchjurisdiction upon the Commanders of Special WeaponsProject, Northeast Command, and Iceland DefenseForce.

for the civil population, Judge for the Army,Judge for the Navy, Judge for the GAF, Re-corders to correspond with the judges assigned,and members chosen from all .three branches ofthe service. The Commander of the EasternAegean Theater operated under the same clndi-tions.

- PUNISHMENT

TWPES OF PUNISHMENT

The types of serious punishment, other -thanmere restriction or reprimand, after court-martialaction, were death, penal servitude, imprison-ment, and dishonor. Capital punishment[Todesstrafe] was apparently inflicted by hanging.Penal servitude [Zuckthausstrafe] was executed bythe civil authorities. Imprisonment [Freiheits-strafe] was for more than six weeks [Gefingnis orFestungshaft] or for less than six weeks [Arrest].n

Detention sentences were served in specialmilitary prisons, referred to as "Glasshouses".

21 Arrest itself was further subdivided according toseverity:

(1) Confinement to quarters [Stubenarrest]. Inflictedupon officers, senior non-commissioned officers [Unter-offiziere init dan O1fiziersportepe-sergeant majors,vice sergeant majors, and ensigns with rank of warrantofficers or candidates for commission] and officials.

(2) Simple confinement [Gdinder Arrest], with Soli-tary Confinement. Inflicted upon non-commissionedofficers and other ranks [Unteroffiziere und Mannschaf-ten] and officials with non-commissioned officer rank.

(3) More Severe Arrest [Geschirfter Arrest], withSolitary Confinement, bread and water and hard bed,modified every third or fourth day. Inflicted upon non-commissioned officers of the lower grades [Unter-offiziere ohne portepte-sergeants and corporals withrank of non-commissioned officers] and other ranks[Unterroffiziere und Mannsclaften]. -

(4) Close Confinement [Strenger Arrest]. Introducedinto the GAF in 1938. This involved punishments per-mitted under Geschdrfler Arrest, together with a dark-ened cell and the loss of daily exercise in the open air.Modifications were made on the fourth and eighthdays. Inflicted on other ranks [Unteroffiziere und Mann-schaften] but not for a first offense, and never for morethan ten days.

Not all these punishments are authorized in theUnited States military law. An accused, Wappler, wassentenced to confinement at hard labor for 60 days; tosolitary confinement on bread and water, with a fullration every third day, for 30 days; to forfeiture of$50.00 per month for three months and to a bad conductdischarge. The United States Court of Military Appealsheld that

"... (1) No court-martial-Navy or otherwise-mayadjudge confinement on bread and water for personnelother than those 'attached to or embarked in a vessel',but (2) a: court-martial of any service may impose con-finement on bread and water in cases involving per-sonnel 'attached to or embarked in a vessel' for a 'periodnot to exceed three consecutive days'." U. S. v. Wap-pler, 2 U.S.C.M.A. 393, 9 C.M.R. 23, 26 (1953).

1958]

EDITH ROSE GARDNER

Arrest sentences were executed by the offender'sunit. On imposition of imprisonment or servitude,the offender was automatically discharged fromthe service and the civil authorities carried outthe punishment?2

Punishment with Dishonor [Ehrenstrafe] in-cluded Dishonorable Discharge [Verlust derWehrwiirdigkeit].2 Dishonorable Discharge andloss of civil rights [Verlust der Ehrenrechte] couldbe imposed jointly or singly. Apparently dis-honorable discharge was for life, as no referenceto a time element was made in the sentences. Lossof civil rights was for a specified period-five yearsbeing the longest reported. Dismissal from theservice [Dienstentlassung] applied only to officers;loss of rank could be applied in officer cases. 24

Reduction in rank [Degradierung] could be imposedon non-commissioned officers.

A fine could be imposed only as the result of acourt-martial and not as a company punishment.25

2 UNITED STATES Ai FORCE MAUAL 125-2, datedSeptember 1, 1956, entitled Administration and Opera-tion of Confinement Facilities and the Treatment andRetaining of Prisoners, provides for confinement to aFederal institution of prisoners who have received apunitive discharge, are considered non-restorable, havebeen convicted of a crime of moral turpitude, and weresentenced to confinement of at least one year. [Part I,Sec. H1, par. 1, Appendix A, p. 127, id.] Those prisonerswith a punitive discharge, considered non-restorable,with six months' confinement to be served on arrival,are committed to a United States Disciplinary Bar-racks. [Ibid.]

23 Under the Uniform Code of Military Justice, twotypes of discharge may be adjudged by a court-martial:Bad Conduct Discharge, the lesser, and DishonorableDischarge. The former implies severe breaches of purelymilitary law, while the latter connotes offenses alsocognizable under civilian criminal law. Each has com-mensurate results under state laws, as on voting rights,and under Federal law, as entitlement to certain privi-leges granted by the Veterans' Administration. See:BLAKE, Punishment Aspects of a Bad Conduct Dis-charge, JAG J. 5 (Dec. 1952).

24 The same is true in United States military law.".... An officer may be punished by dismissal and a

warrant officer may be punished by dishonorable dis-charge for an offense in violation of an article of thecode, but no officer or warrant officer shall be sentencedto confinement or forfeiture of all pay and allowancesunless the sentence also includes dismissal or dis-honorable discharge....

A court-martial is not authorized to sentence anaccused officer to be reduced to the ranks. However, intime of war or national emergency, the Secretary of theDepartment concerned.. . may commute a sentenceof dismissal to reduction to any enlisted grade....MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951,

126(d).2-Cf., UuNoR CODE OF MILITARY JUSTIcE, Article15(a) (1) (c), 70A Stat. 41 (1956), 10 U.S.C. §815 (1956)and

"A fine may be adjudged against any enlisted person,

A fine was administered after recording it in thePunishment Book [Strafbuch]. Apparently fineswere rarely imposed and recorded; therefore, itcannot be estimated how often unrecorded fineswere imposed.

NON-JUIDICIAL PUNISHMENT

The power to punish members of the GAF wasvested not in the person but in the office; not ac-cording to rank but by virtue of the position anofficer held in his unit. This was implicit in thepower of command and responsibility for themaintenance of discipline within a unit.

Any officer or non-commissioned officer couldcause a subordinate to be apprehended tempo-rarily. The apprehension had to be recorded inwriting and reported at once to the individual'scommanding officer, who was required to order animmediate investigation of the circumstances. Thesuperior officer concerned decided whether thesubordinate was to be punished disciplinarily, with-out any higher authority having the right to inter-vene or to modify his decision, unless the punish-ment were contrary to regulations. In criminalcases, the superior officer submitted a charge sheet[Tatbericht] of the offense to the appropriate court-martial and proceedings began. The GAF Com-mander-in-Chief stressed that each commander hada duty to maintain discipline with all means at hisdisposal, including heavy court-martial sentences,and, a prefminent duty to have every regard forhis subordinates, including consideration for thepersonal circumstances of the accused, circum-stances of the offense, the offender's general con-duct and an interpretation of these factors to themaximum advantage of the accused. These mat-ters were often not legally within the scope of acourt-martial.

The company commander with the rank of afirst lieutenant [Oberleutnant], had the power toimpose disciplinary punishments from simplereprimand [Verweis] to fourteen days' confinementin camp or ten days' severe arrest [geschdrftrArrest] on bread and water. For penalties up totwenty-eight days' confinement to camp or twenty-

in lieu of forfeitures, provided a punitive discharge isalso adjudged. A fine should not ordinarily be adjudgedagainst a member of the armed forces unless the accusedwas unjustly enriched by means of an offenske of whichhe is convicted. However, a fine may always be imposedupon any member of the armed forces as punishmentfor contempt...." MANUAL FOR COURTS-MARTIAL,UNITED STATES, 1951, 127(c), §B.

[Vol. 49

GERMAN MILITARY JUSTICE

one days' severe arrest, the division commanderwas the competent authority.26 Other types of non-judicial punishment included strong reprimand[strenger Verweis], punitive guard duty [Straf-

26 The limitations on the powers of punishment were:A company commander had the power to inflict:Upon Officers:

Upon Non-Commisoned Offi-cers of higher grades:

Upon Non-Commissioned Offi-cers of the lower grades:

Upon other ranks:

A regimental commander had

Reprimand [Ver-weis]

ReprimandConfinement to

Quarters [Stu-ben arrest] up to14 days.

Mild Arrest [ge-linder Arrest] upto 14 days.

Reprimand.Restriction of egress

[Ausgangsbesch-rdnkung] up to 28days.

Confinement tocamp [Kasernan-arrest] up to 14days.

Mild Arrest [Ge-linder Arrest] upto 14 days.

More Severe Arrest[Geschdtrfter Ar-rest] up to 14days.

Reprimand.Restriction of egress

up to 28 days.Confinement to

camp up to 14days.

Mild Arrest up to14 days.

More Severe Arrestup to 10 days.

Severe Arrest[Strenger Arrest]up to 3 days.

Withholding of pay[Besoldungsver-waltung]. Onlya portion of payis given the of-fender, the restbeing controlledby his command-ing officer for adetermined pe-riod with a maxi-mum of twomonths. Not tobe inflicted onmarried men. Nopunishment a-warded involvedloss of basic pay,although it waspossible to for-feit flying pay[Fliegerztuage].

the powers of the

wachen], extra duty [Diensiverrichlung ausser derReihe], and drill punishment [Strafexerzieren2l].

To prevent injustice by a superior and to pre-serve rights and privileges, provision was made forindividual complaints2 Collective complaints were

company command and ift addition, the power toinflict:

Upon officers: Confinement to

Upon Non-Commissioned Offi-cers.

quarters up to 10days.

Reduction in Rank.

Upon other ranks: Severe Arrest[Stronger Arrest]up to 10 days.

27 Cf., UNiron CODE OF M ARY JUSTIcE, Article15, 70A Stat. 41-42 (1956), 10 U.S.C. §815 (1956).

COMMANDING O1IcER's NoN-JuDiCIAL PuNIsn:mEN".

"(a) Under such regulations as the President mayprescribe, any commanding officer may, in addition toor in lieu-of admonition or reprimand, impose one ofthe following disciplinary punishments for minoroffenses without the intervention of a court-martial-

(1) upon officers of his command:(A) withholding of privileges for not more than two

consecutive weeks;(B) restriction to certain specified limits, with or

without suspension from duty, for not more than twoconsecutive weeks; or

(C) if imposed by an officer exercising general court-martial jurisdiction, forfeiture of not more than one-half of one month's pay; and

(2) upon other military personnel of his command:A) withholding of privileges for not more than two

consecutive weeks;(B) restriction to certain specified limits, with or

without suspension from duty, for not more than twoconsecutive weeks;

(C) extra duties for not more than two consecutiveweeks, and not more than two hours per day, holidaysincluded;

(D) reduction to next inferior grade, if the grade fromwhich demoted was established by the command or anequivalent or lower command;

(E) if imposed upon a person attached to or embarkedin a vessel, confinement for not more than seven con-secutive days; or

(F) if imposed upon a person attached to or embarkedin a vessel, confinement on bread and water or dimin-ished rations for not more than three consecutivedays...." For a discussion of Article 15, UCMJ, seeWARD UCMJ-Does it Work?, 6 VAND. L. REV. 221(1953).2

8 Cf., UNiORM CODE or MIITARY JusTicE, Article15, 70A Stat. 41-42 (1956), 10 U.S.C. §815 (1956).

" ... (d) A person punished under this article whoconsiders his punishment unjust or disproportionateto the offense may, through the proper channel, appealto the next superior authority. The appeal shall bepromptly forwarded and decided, but the person pun-ished may in the meantime be required to undergo thepunishment adjudged. The officer who imposes thepunishmeht, his successory in command and thesuperior authority may suspend, set aside, or remit anypart or amount of the punishment and restore all rights,privileges, and property affected.... " and UNIwoRm

EDITH ROSE GARDNER

not allowed. Individual complaints could not bemade against court decisions or alleged unfairnessin pay, clothing or rationing. A complaint had tobe submitted, verbally or in writing, depending onthe relative ranks of the accuser and accused, tothe immediate superior of the one complainedagainst, within seven days of the wrong. Inasmuchas punishment did not commence until twenty-fourhours after its imposition, timely complaint couldpostpone its execution.

PRINCIPAL OFFENSES AND PUNISHMENTS

The majority of GAF court-martial verdictswere the result of minor offenses that occur every-where among soldiers. Gradually there was anincrease in crimes attributable to the length of thewar, service at a great distance from home and,above all, mobilization of almost the entire nationfor war. This increase was not striking and, moreimportant militarily, there was no perceptibleincrease of offenses against discipline.

In a command of almost exclusively technicalunits, as the GAF, military transportation offensesand negligence in the handling of weapons andequipment, such as damage caused in taxiing air-craft, were frequent charges. Other recurring andtypical offenses were minor offenses on guard,particularly in the home defense flak outfits[Heimalflak]; absence without leave; insubordina-tion; and theft. Thefts, especially from comrades,increased as the war continued and shortages ofgoods increased. Frauds and embezzlements in-creased with the employment of less desirableelements.

Among the more serious crimes were those ofdesertion; sedition; offenses against discipline andmilitary property and comrades; corruption;sabotage; and political crimes. Percentages andnumerical comparisons are not available.

All capital punishments had to be approved by

CODE OF MILITARY JUSTICE, Article 138, 70A Stat. 78,1956), 10 U.S.C. §938 (1956). Complaints of Wrongs.

"Any member of the armed forces who believeshimself wronged by his commanding officer, and who,upon due application to that commanding officer, isrefused redress, may complain to any superior com-missioned officer, who shall forward the complaint tothe officer exercising general court-martial jurisdictionover the officer against whom it is made. The officerexercising general court-martial jurisdiction shall ex-amine into the complaint and take proper measuresfor redressing the wrong complainted of; and he shall,as soon as possible, send to the Secretary concerned atrue statement of that complaint, with the proceed-ings had thereon."

the Commander-in-Chief, GAF, resulting inuniformity in the imposition of the maximumpenalty. In contrast, commanders of separateArmies had the power to confirm Army deathsentences. During the war years from September,1939, to March, 1945, some 700 death sentences[Todesstrafe] were imposed on personnel in theGAF. Two-thirds of these were executed and therest were remitted to prison or detention sentences.The percentage of death sentences was rather low,estimating the GAF strength to have been twomillions and calculating that some three millionmen were in the GAF during those years. The per-centage was appreciably higher in the GermanArmy. The GAF, composed mainly of volunteersand especially selected recruits, was not obliged,as was the Army, to use the death sentences as adeterrent.2 9

Most of the capital sentences in the GAF werefor desertion, but only for aggravated crimes. Theseincluded desertion by an airman previously con-victed of serious offenses, a common deserter, adeserter abroad, a deserter who committed otherserious offenses such as theft and fraud, or by anairman belonging to a penal or "redemption bycombat" unit. Motivation for desertion by mem-bers of the GAF was rarely due to fundamentaldislike of soldiering, but rather to other causes,such as fear of punishment for a minor offense,homesickness, love of adventure, or associationwith women, especially outside Germany. As inUnited States military law, the GAF differentiatedbetween absence without leave and desertion, on

29 Between May 31, 1951, and December, 1952, thefirst eighteen months the Uniform Code of MilitaryJustice was in effect, only one sentence to life im-prisonment for a member of the United States AirForce was ordered executed, and, insofar as is known,no sentence to death.

During the war years, figures on the death penaltyare not available, as the air arm of the United Stateswas then the Army Air Corps and the figures are com-mingled with those for the Army.

Under the Articles of War, 1949, only one deathpenalty for a member of the United States Air Forcewas adjudged and ordered executed. [ACM 1462,Keller, 2 C.M.R.(AF) 538, 553.] Keller was tried withBurks and Baughman for the premeditated murder ofan Air Force sergeant while perpetrating a robbery.Keller was sentenced to death by hanging. The sen-tence was confirmed by the President of the UnitedStates and was carried into execution under the direc-tion of the Commanding General, Fifth Air Force,Japan. Baughman's sentence to life imprisonment wascommuted by the Reviewing Authority to confine-ment for 20 years. Burks' sentence to death was con-firmed by the President of the United States, but wascommuted to confinement for life.

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GERMAN MILITARY JUSTICE

the basis of accompanying intention and not on theduration of the absence. Intention permanently toevade service with one's unit amounted to deser-tion, be absence only one hour; intention to return,even after an extended period, could result in afinding of only absence without leave.30

The death sentence was frequently imposed forvarious types of sedition. In the narrow sense of theoffense, capital punishment was imposed onlywhere there was clear incitement to indiscipline,open utterances of a defeatist character, defama-tion of heads of the State, of authorities or ofsuperior officers. During the first five years ofWorld War II, there were practically no politicaloffenses under the "Malice Law" [Heimtikckegesetz]. They began to occur after the fall of Stalin-grad and increased progressively thereafter. Sedi-tion by sabotage concerned the GAF only for afew months in 1943. Sedition also included seriouscases of avoidance of military service by deceptionand simulation of illness. However, malingeringand self-mutilation were relatively rare and wereusually pardoned if homesickness or familytroubles, rather than cowardice, occasioned them.

Offences against discipline rarely resulted incapital punishment. Cowardice was a grave of-

3 0An accused, Lakey, was under charges and con-fined when he escaped from confinement. He wasapprehended the next evening in town in civilianclothes. -It was held that the proof was sufficient tosustain only a finding of guilt of unauthorized absenceof two days, terminated by apprehension.

"The Board of Review is not convinced that ac-cused's intent to desert was proved beyond reasonabledoubt. If he had such an intent it could be expectedthat he would seek refuge far from his base to avoidcapture in the search he knew would follow after hisescape from confinement. Instead, he was found inManila,*near his base, strolling down a street whereas an American amongst Filipinos he would bp con-spicuous. And there appears to be no valid reason todisbelieve the testimony of the defense witness whoasserted he and the accused agreed to return to thebase, particularly when considered with the accused'sprior statements and actions which were consistentwith a temporary absence to avoid trial until the ex-pected departure of the chief prosecution witness..ACM 4974, Lakey, 4 C.M.R. 837, 842 (1952).

Similar reasoning was applied by the Court of Mili-tary Appeals in an earlier case.

"...The longer the absence and the greater thedistance from the units, the more reasonable the in-ference [of intent to desert]. The shorter the time anddistance the less the inference is bottomed on reason.It is almost impossible to fix with certainty the mini-mum and maximum limits of these facts, but some-where between the two is an area in which reasonableminds might differ. That area is one in which themembers of the court-martial should be permitted toact without interference by this court .. " U. S. v.McCrary, 1 U.S.C.M.A. 1, 1 C.M.R. 1, 6 (1951).

fense, but a single dereliction by a soldier, of other-wise good conduct and performance was treatedwith clemency. Culpable negligence or inattentionto guard duty frequently resulted in the deathsentence. Serious cases of insubordination bysoldiers to superiors were rare. Mistreatment ofsubordinates by superior officers was heavilypunished, but clemency was applied in the case of ayoung and inexperienced superior who erred in hischoice of action out of excess of zeal rather thanout of chicanery.

Misappropriation of military property or ofgovernment funds could result in the death pen-alty. Exceptional severity was applied in theft ofspirits in large quantity; sale of textiles, food, to-bacco and goods in short supply drawn fromservice stocks for financial gain; and exploitation ofshortages suffered by local inhabitants.

The few isolated cases of robbery with violencewhich were tried in Russia, Italy and France werepunished with death sentences. No mercy wasgranted and orders were given for the execution ofthe sentence by hanging on the spot.

By special order, all sentences in rape cases hadto be submitted to the Commander-in-Chief, GAF,who demanded unrelenting severity in such of-fenses. Even with a special plea by a superiorofficer, for an offender, the Commander-in-Chiefseldom exercised clemency. He often rescindedverdicts that he did not consider sufficienly severeand ordered a retrial. Such stringency resulted inan almost complete cessation of rape cases.

Capital punishment was the general rule for themost serious offenses against comrades, that oftheft in camp or barracks. Appeals for mercy werealways rejected. "Anti-social crimes" [Volkschid-lings-Verbrechen], carried out under cover of black-outs or of air raids-such as, theft, looting, assaultson women in the dark, breaking into air raidshelters and theft when evacuating property afterair attacks-were punished by death. Only a fewexceptional cases were pardoned.

Offenses committed by officers were mainly thoseof unauthorized journeys under the influence ofalcohol, often resulting in accidents with seriousconsequences; journeys without "trip tickets" overlong distances and carrying unauthorized pas-sengers, especially women; attacks on women whileunder the influence of alcohol, which were dealtwith with extreme severity; misappropriation ofmilitary property and employment of soldiers forprivate purposes, thus withdrawing them from

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EDITH ROSE GARDNER

their duties, for which loss of rank was imposed ineven minor cases. Loss of rank was also imposedwhen the offense was repeated, when there wasserious and obstinate disobedience, or when theoffense was accompanied by fraud, as with theforging of a "trip ticket". However, maltreatmentof soldiers by officers and resistance by soldiers toofficers were infrequent.

At the conclusion is a table of comparison ofGAF and USAF maximum punishment and apresentation of typical punishments for particularoffenses.

PENAL PLATOONS

As the war progressed, GAF authorities con-cluded that confinement in idleness for minoroffenses was an inadequate deterrent to breaches ofdiscipline and an unsound policy when the nationneeded all available manpower to conduct the war.Therefore, the GAF organized ConfinmentPlatoons [Arrestgruppen or Arrestzilge] and PenalPlatoons [Strqfvollstreckungsziuge such as thoseestablished by the Armed Forces on the island ofCrete and elsewhere. The theory of the system waspunishment designed to arouse in the prisoner aspirit of pride and comradeship and to assure himthat at the expiration of punishment he would bereturned to his unit to make a fresh start3 . Thework and living conditions were as severe as amember of the GAF could endure without injuryto health, with punishment consisting of rigorousconditions rather than work alone.

Specific procedures were followed in the execu-tion of punishment. Prisoners sentenced to hardlabor for not over six days were formed into Con-finement Platoons within their own units, undercontrol of a senior officer and supervised by a non-commissioned officer. Prisoners sentenced to hardlabor for a period between six days and threemonths for not too serious offenses were attachedto a Penal Platoon [Straftollstreckungszug]. "Re-demption by Combat" [Bewithrungseinsalz] wassubstitute for assignment to a Penal Platoon in

"1 For a discussion of the rehabilitation of UnitedStates Air Force airmen by the 3320 Retraining Group,Amarillo Air Force Base, Texas, see NonRr, , ThesePrisoners Get a Second Chance, 225 SATURDAY EvE-NIG PosT 32, 22 (Feb. 27, 1953). At that time, theRetraining Group handled a maximum of 250 men inan Air Force of slightly over one million men, withthe object of guiding convicted airmen back to honor-able service.

On the committment of Air Force prisoners to Re-training Groups, see Am FoRCE MANUAL 125-2,supra note 22, chapter 5, pp. 68-69.

more serious cases. Sentences in excess of threemonths were generally for imprisonment[Gefdngnis] or penal servitude [Zuchthausstrafe].The confinement and penal platoons were organ-ized by a 1944 order and were similar in purposeand operation. The prisoner had to be certifiedmedically fit for confinement, able to work and freefrom disease. Officers could not be sent to PenalPlatoons for punishment. Members of the GAFcivilian retinue could be attached to a PenalPlatoon, but members of non-German organiza-tions, such as Croatian legionnaires, could not.Non-commissioned officers and other ranks weresent to separate units, with supervisory personnelalways superior in rank to those assigned asprisoners. Those serving disciplinary punishmentcould be attached to such a unit on determinationof their unit commander at the time of his imposi-tion of punishment. Prisoners undergoing punish-ment for court-martial sentence or for disciplinarypurposes were not segregated. Penal Platoons didnot work in close proximity to other units.

The total number of Penal Platoons authorizedis not known. In 1944 six units were establishedin the Southeast Air Command, including Bulgaria[Luflwaffenkommando Siidostl and one in theBelgium-North France area. The major air com-mand [Luftgau] Headquarters referred its eligibleprisoners to the nearest Penal Platoon in its area.The chain of command was from the Penal Platoonleader to the GAF Station Commandant, who haddisciplinary control over and responsibility for thePenal Platoon in his territory, to the CommandHeadquarters. A maximum of eighty prisoners wasassigned to each Platoon. The commander waspreferably a captain [Hauptmann] or a first Lieu-tenant [Oberleutnantj with experience in handlingtroops. He had about five non-commissionedofficers and twelve other ranks assigned to hisstaff, all of whom were specifically designated assuperior to the prisoners. All were required tounderstand their difficult and responsible duty, toexhibit exemplary conduct, to train the prisonersto be useful soldiers by strictness and fairness. Inturn, they received recognition by promotion.Guards were armed with machine pistols.

Regulations governing the Penal Platoons weredetailed, but were considered as guiding principles,with latitude in the Platoon leader. Work was per-formed seven days a week, with hours dependenton weather, nature of the work, and amount ofpunishment considered necessary, but not to exceed

[Vol. 49

GERMAN MILITARY JUSTICE

15 hours in the summer and 12 in the winter. Workprojects, assigned in consultation with the GAFStation Commandant, included transportation ofammunition or construction of anti-tank ditches,pillboxes and field fortification. Drill, combinedwith marching to work, was required one hour aweek. Inspirational lectures were given after work.Fraternization between prisoners and guards, otherprisoners, soldiers or civilians was forbidden. Mailwas restricted and pay withheld. Rations werenormal, and supplementary rations, tobacco oralcohol, were permitted only as a special privilegegranted by the Platoon leader. Quarters wereguarded and locked at all times. Straw beddingwas used. Prisoners in the Platoon in the Belgium-North France area, close to the front lines, woreauthorized gas masks, helmets, weapons and am-munition, but otherwise even knives and matcheswere forbidden. For an offense committed-whileattached to the Platoon, the term of punishmentwas lengthened. On release, a short expression ofopinion [Stellungnahme] by the Platoon leader wassent to the commander who had imposed thedisciplinary punishment. An itemized report onthe conduct of a prisoner and a final rating wassubmitted to the president of the court-martialwhich had sentenced him. The report could recom-mend that the prisoner be sent to an establishmentfor incorrigibles [Straflager].

REDEMPTION BY CO11BAT

Another method of punishment designed toutilize all available manpower and give a prisonera chance to redeem himself and return to his unit,was assignment to a unit for Redemption by Com-bat [Bewhrungseinsatz].P This was a measure ofclemency as well as punishment and also a methodof preventing evasion of front-line duty. As it wasreserved for more serious offenses and confinementup to three months, it was a means of eliminatingundesirables.

In early 1942 the Fiihrer ordered that disgraced

32It has been reported, in a discussion of rehabili-tation of United States Army prisoners sent to Korea,that from the first group of over 300 soldiers sentencedfor absence without leave but sent to Korea, morethan half proved themselves in combat by earningpromotion to non-commissioned officer rank. Only onewas returned to the United States a prisoner. THEARmy, NAvY, AND Am FORCE JOURNAL, Vol. LXXXX,No. 34, p. 1028, cols. 3-4, April 25, 1953. An Asso-ciated Press Dispatch of 15 October 1953 reportedthat the United States Army sent 6,900 convictedabsentees to the Far East during 1953 under this re-habilitation policy.

soldiers who subsequently distinguished them-selves in battle were eligible for pardon and rein-statement and that records of punishment of menkilled in action would be expunged. In the fall of1944, the GAF extended this policy to officers andmen, directing that persons under court-martialsentence would be assigned to posts of danger andthus have an opportunity to redeem their honorand to evidence worthiness of pardon by combatwith the enemy or undergoing other perils of war.Commanding officers were to transfer eligible mento such units with dispatch. Men who had served afull sentence adjudged by a military or civil courtcould volunteer for assignment to a unit to retrievetheir military honor.

Generally, punishment was carried out withinthe same branch of service, preferably in the sameWing [Geschwader] but in a different Squadron[Staffl]. Those prisoners sent to the front lineswere given infantry and flak training and wereassigned to units engaged in ground combat untilthey had redeemed themselves, the transfer beingcontrolled by the Convening Authority [Gericht-sherr]. Those men not physically fit for combatwere used for especially hazardous duty underdifficult conditions in the home territory. Flyingpersonnel were sent by the Penal Section [Voll-zugsastalt] to operational aircrews in the frontlines. Specialist personnel reported to their basicorganization [Stammwaffe] to redeem themselves intheir special spheres by outstanding achievementsand perfect behavior under difficult conditions.

Pardons and opportunity to redeem misconductby service in a Redemption by Combat unit weregranted increasingly as the war progressed. In al-most all cases, men under sentence showed them-selves deserving of final pardon by bravery beforethe enemy. Within six months of assignment to theunit, the prisoner was considered by the CompanyCommander for pardon and transfer, as well as forpromotion and decoration, on the basis of out-standing achievements in battle, unusual courageand exemplary conduct. Exceptional performancein battle accelerated a pardon. Good conduct wasnot essential to a change in the punishment recordof a prisoner killed or seriously wounded in battle.The application by the commander for pardon of aprisoner could include a recommendation for re-mission of the balance of punishment, reinstate-ment of' rank and restriction of information ofprevious punishment only to the courts and thehighest authorities of the Reich. The latter was a

1958]

EDITH ROSE GARDNER

preliminary step toward expunging the punish-ment record on the basis that unusual courage andexcellent conduct in combat constituted a guar-antee of future good conduct. Personnel, with theunit for six months who were considered unworthyof pardon, were rated again after four months.For these and for prisoners who had committedoffenses while with the unit or who had not dis-played an honest desire for redemption, considera-tion was given to whether they should remain withthe unit or serve the sentence originally imposed.

NoN-GmtimN Civiu=Ns

Special consideration in German military lawwas given to persons who were neither Germannationals nor members of the GAF and who re-sided outside the Reich, but who were subject toGerman courts-martial. Regulations for opera-tional areas provided that foreigners and Germanswere subject under military law to trial by court-martial [Feldgericht] for all offenses committed inthose areas. In April, 1944, all territories outsidethe borders of the Reich were declared operationalareas.

The types of offenses were broad. The ConveningAuthority [Gerichtsherr] was permitted to transferto the general law courts all cases in Holland, Nor-way and Denmark not affecting the prosecution ofthe war; such as, contravention of civil police lawsor an offense committed prior to the establishmentof a court-martial. A 1940 order provided that if aforeigner or a German civilian committed anoffense 33 in any occupied territory against Germanmilitary prsonnel or against any authority set upby the Ftihrer, and if the offense were punishableby the laws of the German Reich, that personwould be punished as though the offense had beencommitted within the Reich. After 1942 the orderwas used against "Parasites of the People"[Volksschidlingsverardnung]. A "public enemy"

33 The 1940 decree listed the offenses of:(1) espionage;(2) armed insurgence [Freischaerlereij as defined by

the International Agreement of October 18, 1907;(3) contravention of regulations issued by the

military commander of a foreign area to guarantee thesafety of the Armed Forces or to further the prosecu-tion of the war;

(4) offenses against members of the Armed Forcesor civilian retinue, committed before the occupation;

(5) treason, as defined by the Reich Penal Code;(6) offenses committed within a military area, in-

stallation or building, if the local Armed Forces com-mander deemed the punishment necessary for militaryreasons.

[Volksschdling] was defined as "a person who,through the wilful commission of crime disturbsthe peace of the community to such an extent thathe deserves at least the infliction of penal servitudein the opinion of right-minded people".M This was aconvenient legal method of liquidating personsinvonvenient to the Reich. It was legally possibleto inflict penalties, including death, more severethan normally imposed, in cases in which theactions of the accused seriously affected the con-duct of the war or the security of the Reich and inwhich customary punishment was not consideredsufficient "in the opinion of right-minded people".Prisoners of war as well as civilians were subject toGAF courts-martial [Feldgerichte]. Italian soldierswho would not fight for Germany were treated bycourts-martial as any other prisoners of war. Byorder of the High Command of the Armed Forces[Oberkommando der Wehrmacht], applicable to allthe Southeast Command [LuftwaffenkommandoSiidost], Italian officers captured while fighting aspartisans were to be shot on the spot without atrial35. In regard to Russian prisoners of war,officers were dealt with as though they were en-listed men; and regimental "courts on the spot"[StandgerichteJ could conduct a trial and adjudgethe death penalty. If the nature of the punishmentadjudged made the prisoner of no further value as aworker, he was turned over to the Security Service[Gestapo]. No further report on him was requiredand he was no longer subject to trial by court-martial.

The procedure in trials of civilians or prisonersof war was cursory and summary. On complaintagainst a foreigner and notice of a suspected offensecognizable by a military court, the ConveningAuthority [Gerichtsherr] ordered an inquiry con-ducted by an Investigating Officer (known in suchcases as Untersuchungsfithrer although in fact aGerichtsoffizier). The method of preferring chargeswas discretionary with the Convening Authority.By decree of June, 1944, the trial procedure wasabbreviated. If the authorized punishment did notexceed one year's imprisonment or a fine, theConvening Authority had the power to issue judg-meint in writing without a trial, allowing the ac-cused three days' time to protest and object to the

34 One reported case was that of a French captain,accused of mistreating German prisoners of war andsentenced under this law by a GAP court-martial.The nature and extent of his sentence is not given.

35 See, The Hostages Case, XI TRIALs OF WARCRIMINALS 1088, 1104-1105 (G.P.O., 1950).

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GERMAN MILITARY JUSTICE

punishment If the punishment authorized for theoffense did not exceed five years' imprisonment,the Convening Authority could give judgment andimpose sentence himself, in consultation with hislegal adviser, but without the two other courtmembers, the "accessors" [Beisitzer]. Execution ofsentences was effected in the speediest way pos-sible. Sentences for more than three years' im-prisonment or death required confirmation by theappropriate military commanders, who could orderfurther investigation or pardon. Punishment notinvolving death was effected by the SecurityService [Gestapo]. However, sentences, includingdeath, in cases of insurgence, espionage, andsabotage, could be executed immediately withoutthe approval of anyone delegated by the Air ForceSupreme Commander [Oberkommando der Luft-waffe] if the confirming authority could not becontacted immediately and military necessity didnot permit a delay in the execution.

The Reich Minister of Justice designated specialprisons to be placed at the disposal of the ArmedForces for foreigners sentenced to imprisonment.Persons were confined in the German prisonsspecified as appropriate, on the basis of age (over orunder 18 years), gender and nationality. Unless theConvening Authority decided otherwise, transferto a German prison was obligatory for foreignersin France and Belgium sentenced by militarycourts to imprisonment or penal srvitude of ninemonths or more; those in Yugoslavia, for sixmonths or more; those in Norway and Denmark,for three months or more.

CONCLUSION

The military justice system in the German AirForce during World War II was well organizedand developed in accordance with the civil law con-

cepts of the country and varied with the exigenciesof the war. The GAF court-martial system wassimilar to that which has been customary inUnited States military law. There is no indicationthat the rights of an accused were as stringentlyprotected as they are under the Uniform Code ofMilitary Justice. However, it is apparent that thecommander in the GAF had regard for the interestsof the individual as well as of the State and thewar effort. Certain offenses that derogated fromthe success of the war or the standing of the nationand its armed forces were treated with under-standable severity. The convicted were given ampleopportunity for reformation.

It is to be noted that in April, 1957, the GermanRepublic promulgated a 48-paragraph militarycode, defining crimes and punishments, liberalizingthe disciplinary system. The new military codefollows closely German criminal law for non-military offenses. Servicemen accused of felonieswill be prosecuted by civilian state authorities incivilian criminal courts, and civilian law will applyto servicemen under the age of 21. However, thecode retains disciplinary punishment by command-ing officers. It establishes "troop service courts"composed of a civilian judge, a staff officer, andservicemen of the rank of the accused. Punishmentsare generally lighter and benefits to subordinatesgreater. The death penalty has been eliminated,even in wartime, as has the penal battalion andshackling of prisoners. Recollecting the war crimestrials, one notes with interest that superior orders,according to the new code, need not be obeyed iftheir execution would result in the commission ofan offense or a crimeY6

The military justice system of the former GAFmay prove a satisfactory guide for the presentforces of the Federal Republic of Germany.

A comparison of the tables of maximum punishment in the GAF in World War II and in the USAF at present.(See, MANUAL oOZ CO RTS-MARTIAL, UNITED STATES, 1951, par. 127c).

GAF PENALTY OFFENSE USAF PENALTY

Death High Treason Death. Art. Ill, § 3, U. S. Constitution.Not less than five years' Penal Servitude Plotting, but not exe- Not specifically defined in UCMJ.

cuting, High Trea-son

Not less than five years' Penal Servitude Failure to communi- Not specifically defined in UCMJ.(Same as for person plotting or executing cate knowledge of in-the plot) tended High Treason

Up to ten years' Penal Servitude. If pure Transgression of duty Death or such other punishment as court-negligence, up to 3 years' imprisonment with aim of helping martial may direct. (Art. 104, UCMJ).

the enemy

3 'N. Y. TIMES, April 21, 1957, p. 2, cols. 6-7.

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EDITH ROSE GARDNER

Up to 10 years' imprisonment. (In less se-rious cases, up to 14 days' more severearrest.)

Not less than 6 months' imprisonment. (If inthe field or a particularly flagrant case,penal servitude for life, or death).

Up to 2 years' imprisonment

Up to 5 years' Penal Servitude

For flagrant cases, Penal Servitude for life,or death

Not less than 14 days' More Severe Arrest.(If in the field or a particularly flagrantcase, Penal Servitude for life, or death).

Imprisonment up to 2 years. If committed onduty, up to 3 years. If committed in writ-ing, up to 5 years.

More Severe Arrest for not less than 7 daysor up to 10 years' imprisonment. Ordinarycases of neglect and failure to carryout orders, up to 5 years' imprisonment. Ifin the field or in a particularly flagrantcase, Penal Servitude for life, or death.

More Severe Arrest not less than 14 days orimprisonment. (If in the field or a particu-larly flagrant case, Penal Servitude for life,or death).

Not less than 6 months' imprisonment, max-imum of 10 years. For less serious cases,not less than 3 months. (If in the field orin a particularly flagrant case, Penal Servi-tude for life, or death).

GAF PENALTY

Not. less than 6 months' imprisonment. Ifcommitted under provocation, sentencemay be reduced to minimum. (If in thefield or in a particularly flagrant case,Penal Servitude for life or death).

Absence without leafor more than 3 daor more than 1 din the field

Desertion

Breaking Confinemto Quarters.

Self-inflictment owounds

Cowardice

Threatening a super

Insulting a superior

Disobedience, delibate or not, whichdangers the safet3the Reich

Refusal to obey,word or deed

Insubordination

OFFENSE

Assault on a superi

Up to 3 years' imprisonment for instigator. Illegal assembly anFor others, up to 6 months. or collective co

plaints

ye Three days' confinement for each day or.ys fraction of a day of absence. (Art. 86,lay UCMJ).

Dishonorable discharge and 5 years con-finement (if with intent to avoidhazardous duty).

Dishonorable discharge and 3 years' con-finement (in other cases terminated byapprehension).

Dishonorable Discharge and 2 years' con-finement (in other cases terminated bysurrender). (Art. 85, UCMJ).

ent Bad Conduct Discharge, 6 months' con-finement at hard labor (for breakingarrest). (Art. 95, UCMJ).

f Dishonorable Discharge and 7 years' con-finement. (Art. 115, UCMJ).

Death or such other punishment as court-martial may direct. (Misbehavior beforethe enemy) (Art. 99, UCMJ).

rior Dishonorable Discharge and 10 years'confinement. (Art. 90, UCMJ).

Bad Conduct Discharge, 6 months' con-finement (Contempt to Warrant Officer).

3 months' confinement. (Contempt to non-commissioned officer). (Art. 91, UCMJ).

er-en-

of

by Dishonorable Discharge and 5 years' con-finement. (Willful disobedience) (Art.90, UCMJ).

Bad Conduct Discharge and 6 months'confinement. (Disrespect to superior)(Art. 89, UCMJ).

USAF PENALTY

or Dishonorable discharge and 10 years' con-finement. (Assault on superior officer)(Art. 89, UCMJ).

Dishonorable discharge and 5 years' con-finement. (Assault on warrant officer)(Art. 91, UCMJ).

Dishonorable discharge and 1 year con-finement. (Assault on non-commissionedofficer) (Art. 91, UCMJ).

nd/ Death or any such other punishment ain- court-martial may direct. (Mutiny or

sedition) (Art. 94, UCMJ).

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GERMAN MILITARY JUSTICE

Up to 3 years' imprisonment. If committedin writing or in the field, not less than 14days' More Severe Arrest or up to 5 years'imprisonment.

Up to 5 years' imprisonment.

Not less than 14 days' arrest and up to3 years' imprisonment. For especially fla-grant cases, Penal Servitude

Up to 3 years' imprisonment

Arousing of discontent

Suppression of a legiti-mate complaintmade by a subordi-nate.

Ill-treatment of sub-ordinates: striking,humiliating treat-ment, or allowingsubordinates to hu-miliate their fellows.

Private appropriationof booty

Any punishment other than death. (Loot-ing) (Art. 103, UCMJ).

Up to Life imprisonment or death for ex- Plundertreme cases. (To seize goods because theyare urgently needed for war purposes isnot plunder).

Imprisonment, Penal Servitude or death, ac- Robbery frcording to the circumstances, wounded

Not less than 14 days' More Severe Arrest, Theftor up to 5 years' imprisonment. Civilrights may also be forfeited.

If intentional and dangerous to safety of theReich, Imprisonment or even Penal Servi-tude.

GAF PENALTY

Up to 5 years' Penal Servitude. For less se-rious cases up to 3 years' imprisonment

Not less than 14 days' More Severe Arrest.(In flagrant cases, up to 2 years' imprison-ment. If in the field or particularly fla-grant, Penal Servitude for life, or death.)

Up to 3 years' imprisonment

om sick or

Spreading of false re-port.

OFFENSE

Corruption, acceptanceof bribes

Negligence on GuardDuty

Damage to aircraftthrough negligence

LarcenyDishonorable Discharge, 6 months' con-

finement (Value $20 or less).Dishonorable Discharge, 1 years' confine-

ment. (Value $20 to $50)..Dishonorable Discharge, 5 years' confine-

ment. (Value over $50).Wrongful Appropriation.3 months' confinement. (Value $20 or less).6 months' confinement. (Value $20 to

$50).Bad Conduct Discharge, 6 months' con-

finement. (Value over $50).Bad Conduct Discharge, 2 years' con-

finement (Motor Vehicle) (Art. 121).

USAF2PENALTY

Dishonorable Discharge and 3 years' con-finement. (Art. 134, UCMJ).

Dishonorable Discharge and 1 year's con-finement. (Misbehavior of sentinel).(Art. 113, UCMJ).

Negligent Damage to US properly.3 months' confinement (Value of $20).6 months' confinement. (Value of $20L$50).Dishonorable Discharge and 1 year con-

finement. (Value over $50) (Art. 108).Hazarding a vessel.Dishonorable Discharge and 2 years' con-

finement. (Art. 110) (UCMJ).

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EDITH ROSE GARDNER

Not less than 14 days' More Severe Arrest,or up to 5 years' imprisonment. If due topure negligence, up to 6 months' imprison-ment.

Up to 3 years' imprisonment. If a death re-sults, up to 5 years' imprisonment

Up to 3 months' imprisonment.

All cases of threats, insults, assault, disobe-dience, etc., are punished as if the offensewere against a superior.

Unauthorized releaseof prisoners

Careless handling ofweapons

Marriage without per-mission

Offenses against aguard on duty

3 months' confinement (Careless handlingof firearms) (Art 134, UCMJ).

Dishonorable Discharge and 1 year con-finement. (Willfully, wrongfully en-dangering life) (Art. 134, UCMJ).

Dishonorable Discharge and 3 years' con-finement. (Involuntary manslaughter.)(Art. 119, UCMJ).

Dishonorable Discharge and 2 years' con-finement. (Violation of general order orregulation) (Art. 92, UCMJ).

Records on one GAF company indicate that the following punishments were typical for the offenses for whichthey were given.

Punishment

Reprimand (Verweis)

Severe Reprimand [Strenger Verweis]

Extra Duty [Dienstverrichtung ausser derReihe]

Punitive Guard Duty [Strafwachen]

Restriction of Egress. [Ausgangsbe-schriinkung] (Implying a return to campfixed time).7 days8 days10 days14 days21 days

Ban on Egress [Ausgangsverbot]5 days and report to charge of quarters

every two hours after duty until taps10 days and report to charge of quarters

every two hours after duty until taps14 days

Offense

arriving 20 minutes late for duty.arriving 30 minutes late for duty.carelessly carrying out an order.talking to a French civilian while on duty.unmilitary conduct in a public conveyance.returning from leave 24 hours late.leaving town for which furlough was authorized and wearing civilian

clothes.wearing civilian clothes and not wearing identification tags.unauthorized use of an express train.lying to a superior.attempting to use an express train.leaving sick bed without permission.having a dirty riflefailure to get up on time and being 30 minutes late for duty.Imposed for two successive Sundays for not taking all necessary

precautions while driving on icy road.failure to get up in the morning after being called twice.arriving 15 minutes late for guard duty.

returning from leave 25 minutes late.insolence and insubordination.taking part in a street brawlreturning from leave 15 minutes late; failing to attend lecture classes.returning from leave 12 minutes late.sleeping while on night wireless duty.

conduct unbecoming a German soldier in public.

not saluting properly.

arriving 15 minutes late for guard duty.

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Drill Punishment Strafexerzieren]3 times of half hour each

Confinement to Camp [Kasemenarrest]8 days

14 days

Mild Arrest [gelinder Arrest]2 days3 days

Punishment

4 days

5 daysMore Severe Arrest fgeschdrfter Arrest]

3 days

4 days5 days

returning from leave 3 hours late.having dirty uniform.

smoking in lecture class.one day's failure to do work properly.improperly dressed while on duty.lying to a superior.

-insolence.returning from leave 15 minutes late.returning from leave 2 hours 20 minutes late. (also restriction of

egress for 14 days).accidently burning his clothes by hanging them too close to the stove.making careless mistake in wireless report to GAF battle head-

quarters, thereby unfavorably affecting the battle situation.failure to carry out order to repair wireless.originating and sending by wireless an unauthorized message.lying to superior.

Offense

failure to render salute on patrol duty and behaving in manner un-becoming to German soldier.

failure to return promptly when leave was cancelledby wire.

leaving pistol in hotel.allowing rifle to become rusty.taking day off without permission.failure to obey an order.allowing shoes to become so worn they were unrepairable.returning from leave 10 minutes late, with no excuse.returning from leave 1 hour, 10 minutes late, with no adequate

excuse.drunk and incapable while assigned on duty.sleeping on duty.failure to be in barracks by appointed time. (Soldier was brought in

by military police. Also given 10 days restriction of egress).leaving post without notifying superior.drunkenness and unmilitary conduct in public.. (Also given 10

days' restriction of egress).

returning from leave 30 minutes late and returning to barracks bystealth so as to avoid punishment. (Also given 8 days' restrictionof egress).

failure to write practice work.entering wrong name on duty roster to deceive commanding officer.

(Also given 14 days restriction of egress).

lying in connection-with official matters.insubordination.having a woman in his room.failure to clean room.losing government-issued equipment.sleeping on duty.returning from official journey 1 day late with no adequate excuse.leaving post for I hour when on guard duty.smoking while on dutr.drunk and incapable of carrying out duty.drawing bayonet against comrade while under influence of drink.refusal to come to field drill.

EDITH ROSE GARDNER

7 days

8 days10 days14 days

15 days21 days

28 days42 days

Punishment

Severe Arrest [Strenger Arrest]1 day

3 months

4 months

5 months

6 months.

7 months

8 months

9 months

1 year

15 months

indecent conduct in barracks while under influence of drink.failure to go on guard duty.drunkenness and failure to report to Duty N. C. 0.exceeding the speed limit.returning from leave 14 days late, on own neglect.misuse of service vehicle for own pleasure.stealing from the Post Exchange.hooliganism in a public place.violation of laws for prevention of spread of venereal disease.

drunkenness and failure to carry out prescribed orders.stealing a friend's ring. (Theft occurred before man entered GAF).violation of traffic rules.absence without leave for 9 hours.misconduct with French female in his quarters.assault on superior while under influence of drink.sleeping on guard duty.failure to report incoming German aircraft, with result that defense

units opened fire.

Offense

conduct unbecoming a member of the GAFbegging cigarettes from civilians.smoking on duty and insubordination.absence without leave for a prolonged period.theft from a superior.reading on wireless duty.careless handling of pistol, resulting in injuries to another member

of the GAF.stealing liquor from a comrade.sleeping on duty.selling government property. (Also, loss of rank).flagrant disobedience.neglect of guard duty in the field.careless talk.selling government-owned firearms.leaving post for five minutes.offense against race lawsbeing absent from post overnight and sleeping with a French female.neglect of duty and sleeping with French female in barracks.prolonged absence without leave.driving while under the influence of liquor.losing secret documents.insubordination.refusal to obey an order.infecting a German girl with venereal disease and failing to report to

medical officer.careless handling of weapon, resulting in death of a comrade.leaving post and falling asleep.allowing a prisoner to escape through neglect.plunder.onanism. (With loss of rank).drunkenness, ill-treatment of subordinates and threatening to shoot

them.theft of military property while on guard duty. (With loss of rank).damage to aircraft through neglect.disobedience to a superior and arousing discontent.. (With loss of

rank).

[VCol. 49

GERMAN MILITARY JUSTICE

16 months18 months

24 months

30 months

36 months48 months60 months

Fine instead of Imprisonment

Punishment

Penal Servitude13 months, dishonorable discharge, loss

of civil rights2 years, dishonorable discharge3 years, dishonorable discharge and loss

of civil rights for 3 years.3 years, 6 months, and dishonorable dis-

charge5 years and dishonorable discharge6 years, dishonorable discharge10 years, dishonorable discharge; loss of

civil rights for 5 years.Death Penalty [Todesstrafe]

theft of mail.stealing food and liquor from French civilians.assault on French civilian and on a superior.falsification of official records pertaining to himself, wearing insignia

of higher rank, and returning from leave 2 days late.robbery and offense against race laws.absence without leave for second time.repeated selling of government-issued equipment.falsification of records to prolong leave.

- ill-treatment of subordinates.absence without leave for 14 days.repeated selling of government property. (With loss of civil rights

for 3 years).50 RM instead of 10 days' imprisonment for falsification of an official

document.

Offense

stealing from fellow members of GAF and assuming unlawfulauthority.

insubordination and assault on superior.desertion.

insubordination, disobedience and assault on a superior.

self-inflicting wound to get transfer to home territory.desertion.desertion (voluntary return).

desertion and murder.desertion to avoid service in Russia.desertion, offense against race laws, embezzlement and robbery.

(Also 9 years' penal servitude loss of civil rights, dishonorabledischarge).

19581