THE BACKGROUND OF THEUNIFORM CODE OF NILITARY

JUSTICE

PROP~RTY OF U. S. ARMYTHl: JUDGE ADVOCATE GENERAL'S SCHOOl:LIBRARY

PREPARED ATTHE JUDGE ADVOCATE GENERAL'S SCHOOL

U. S. 1l,RNY

MAY 2 0 1970

Table of Contents

lntroduction Early History The Articles of War of 1775 The Articles of War of 1776

The Amendment of 1786 The Articles of War of 1806 The Articles of War of 1874

Principal Changes The Articles of War of 193,.6

Principal Changes The Articles of vlar of 1920

Principal Changes The Articles of War of 1948 (The Elston Act)

Principal Changes The Uniform Code of Military Justice

The General Purpose of the Code Principal Provisions to Ins\lr8 Uniformity Principal Provisions to ~~inate Command Influence Amendments The Codification Proposed Amendments to the Code

Annex A A sectional analysis of the UCHJ.

An.'"lex B A copy of the "speaker letter" transmitting the Omnibus Bill from DOD to the Speaker of the House of Representatives. The inclosures thereto contain the statutory la.."'lguage o£ the proposed changes and a sectional analysis of such changes.

Annex C A copy of a letter from DOD to the Cpairman of the House Armed

'Services Committee exprossing oPPo$ition to the f~e+icun Legion Bill.

Annex D Acomparative table of the proposed amendments to the UCMJ contained in the Omnibus Bill and the American Legion Bill with the present articles of the Code.

Annex E An analysis of the present system of non-judicial punishment.

Annex F An analysis of the present summary court-martial system.

Annex G An analysis of the present special court-martial system.

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The Background of the Uniform Code of Military Justice

Introduction

The purpose of this paper is to provide a panoramic view of the development of military justice from its infancy ill this country into the system which we know today. What follows is not designed as a detailed technical analysis. Rather, it is hoped the reader will see that the system of military justice first established in this country, which was modeled for the most part on the pre-Revolutionary War system of Engle.nd based on the old Roman Code, has evolved from a system identified largely as the disciplinary tool of the conunander into the elaborate judicial process that it has become today.

'rhe development of the military justice system within the Army has been chosen because the Articles for the Government of the Navy, even until replaced by the Uniform Code of Milit~ry Justice, were largely (at least in theory and sUbstance) the British Naval Articles of 1749. The disciplinary laws for the Coast Guard also developed only slightly from their beginning, principally for the reason that the most serious of­fenses of Coast Guard personnel during time of peace were tried by the Federal courts. It should be observed here that the aeme .Articles of War applicable to the Army were made applicable to the Air Force when it was created in 1947.

The Articles of War of 1916, 1920, and 1948 were each implemented by an Executive Order of the President promulgating a NanuaJ. for Courts­Martial. These were, respectively, the Hanua1s for Courts-Martial of 1917, 1921, and 1949. In addition, the l-ianual for Courts-l-iartial, 1921, implementing the Articles of War of 1920, was re't'1I'itten and promulgated as the Manual for Courts-l-1artial, 1928. Numerous change'S to this latter volume were made by other Executive Orders J &.'1d ir~ 1943 a corrected edition was promulgated. The Unifonn Code of Military Justice has been implemented by the President With the Manual for Courts-Martial, 1951. Each of these Manuals for Courts-Martial principally ser-lTed as a vehicle for the President to prescribe procedure and modes of proof for courts­martial. In any event, all references in this paper, unless otherwise specifically mentioned, are to the statutory law, i.e." the Articles of War or the Uniform Code of Military Justice.

Although not within the scope of this paper, it should be men.. tioned that the develC'pment of military justice w:l.thin the Army was paralleled by a strikingly similar development in England. For eXSlllple, the British" also in 1951, superimposed a new civilisn tribunal over their courts-martiaJ. system to review the findings of co~ts-martial.

On the other hand, some changes have been made in EngJ.end and the United States which are quite dissimilar. For example, the British have p1aced The Judge Advocate General and hi s reviewing functi ons completely outside the armed services; in the United States, the different systems of military justice in the services have been unified in the Uniform Code of M1litaryJq.stice, whi:j.e th~ British have attempted no such unification.

Early History

On 5 April 1775, the Provisional Congress of Ma.ssachusetts Bay adopted the first written code of military justice in the Colonies. 'rhis Code was known as the Massachusetts Articles. Later, the Colonies of Connecticut, Rhode Island, New Hampshire, Pennsylvania" and South Carolina adopted similar type articles to be observed by their respective colonial troops.

The Articles of War of 1775

The first military justice code applicable to all of the Colonies was adopted on 30 June 1175 by the Second Continental Congress in Philadelphia. This enactment was known as the American Articles of War of 1715. These articles were la.rgely copied from the British Code of 1765 and the Massachusetts Articles. The former, according to John Adams" were a literal translation of the Articles of War of the Roman Empire. It is interesting to observe that George "'e.ahington served on the committee which prepared the Articles of War of 1775.

The Articles of War of 1716

Approximately one year later, on 14 June 1776" the Continental Congress appointed a committee, which included John Adams and Thomas Je:fferson, to revise the Articles of War of 1175. r-Tew articJ.es were prepared by this committee and were adopted on 20 September 1176 by Congress as "The Articles of \olar of 1716. n This Code of 1776 was merely an enlargement, with modifications, of the Articles of War of 1175. It continued in force even after adoption of the Constitution, although there were a considerable number of amendments. The most important of these amendments was enacted on 31 May 1786 and remedied difficulties long present in the prior articles concerning the number of persons required as members of general courts-martial and the fore­runner of ,;m.at is today the special court-martial. Prior to the amendment of 1786, a general court-martial was required to have 13 members and a special. court-martial 5 members. Due to the small number of Army personnel in those early days, it was impossible for many detachments to muster enough o:fficers to const1tute either a special or a general court-martial. The amen<1ment of 1786 fixed the minimum number of members of a genereJ. eourt-ID$rti~ at five and the mininmm number of mem'bers of a special court-martia:). at three. These minimum figures have pers:t,sted even until today.

The .Articles of war of 1806

After the adoption of the Constitution, in an enactment of 29 September 1739,the First Congress expressly recognized the then existing Articles of ·War of 1776, as amended"and provided that they would apply to the existing Army establishment. On 10 April 1806" however" the Congress enacted the "Articles of War qf 1806" II mainly for the reason that the change trOIll a confederatiop to a pons1J:ltutional type of gov­ernment made de~~rabl~ a rather compl,ete revisj,on of the A,rtlc.).e$ of

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~lar. These articles remained in effect for some 70 years with but few changes until the advent of the Civil War~ After the start of the Civil War, alterations and additions to the Articles of War of 1806 were numerous. The changes principally related to the trial and re­view of cases during the Civil War.

The Articles of War of 1874

Thereafter, on 22 June 1874, the Articles of 'tVar were completely revised and ra-enacted as the Articles of War of 1874. This code, al­thOUgh amended a number of tine s, remained in effect until the enactment of the Articles of War of 1916. Because they established concepts which we find in the military justice system of today, some of' the amendments to the Code of 1874 should be briefly observed. For example, it was during this period that the penalty of stoppage was first done away with and punishment left to the discretion of the court. Moreover, the punishments of flogging, branding, marldng, and tatooing were first prohibited. Here 'We also find for the first time a separate statute of' limitations on the prosecution of desertion in time of peace. Another milestone in the developnent of military law during this period 'WaS the authorization by Congress for the President to provide the maximum limits for pUllislnBents during time of peace.

The Articles of War of 1916

Shortly after the turn of the century, it became apparent that the Code of 1874, as amended, was very unscientific in its arrangement of articles a:.ld contained man~r provisions either wholly obsolete or not well suited to conditions existing in the service at that time • For example, Article 59 of the 1874 Code made it man<latory to turn an offi ­cer or soldier accused of em offense against the person or property of any citizen of the United States to the civil authorities,but only "upon application duly made by or in behalf of the party injured." This article thus ignored the more modern doctrine that all persons are entitled to equal protection of the laws and should be punished not at the insistence of an individual but at the insistence of officials representing the general public. In any event, on 29 August 1916, the Congress enacted the Articles of War of 1916. The Articles of War of 1916 were a complete revision of the old Code of' 1874. Some of the more important changes effected are as follows:.

1. The jurisdiction of the general court-martial was made concurrent with that of the military commission and other -war tribunals for trial of offenses against the law of war. The jurisdiction of general courts-martial. was also extended to include the capital offenses of murder and rape when committed in time of peace in places outside the United States.

2. Provision was made for the detail of one or more assistant trial judge advocates for each general court""IllSZ'tial Wi.th the power to act·:for the judge advocate, which resulted in increasing the capactty of t~se courts in the disposition of' cases.

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3. The provision of the Code of 1874 making regular officers incompetent to sit on courts-martial for the trial of officers and soldiers of other components was abolished and all distinction between components as far as eligi­bility to si-i;; on courts-martial was removed.

4. The power to prescrtbe procedure and modes of proof before courts-martial and other military tribunals was expressly delegated to the ITesident. This same power had, however, heretofore been exercised by the President to some extent on the theory that the same was included among his inherent constitutional powers.

5. The statute of limitations was completely revised and modernized.

6. Reviewing and confirming authorities vlere., for the first time, given the power to approve a lesser included offense.

7. The taking of depositions for use in trial by court -martial was modified substantially.

8. The required number of members voting for conviction of an offense carrying the death penalty was raised from a bare majority to a two-thirds majority.

The Articles of War of 1920

During the early part of 1919, several proposed revisions of the Articles of Har of 1916 were introduced in both Houses. of Congress. These bills were the results of several studies made of the entire courts-martial system with a view to its revision a.nd improvement in the light and experience of World War I. One study 'Was made b~r the War Department through a special board consisting of several general officers, a committee of civilian lawyers appointed bJr the American Bar Association, and representatives of the Office of The JUdge Advo­cate General. This board not only made a study of the American Articles of 'tlar but of the systems of military justice existing in the British, French, and BelMan armies. All of' these various studies were submitted to a subcommittee of the Senate Committee on Military Affairs. In addi­tion, this subcommittee held extensive hearings on this subject. At the conclusion of these hearings, and upon invitation of the SUbcommittee, a bill providing for a revision of the Articles of War of 19l6 was pre­pared by The Judge Advocate General and submitted to the subcommittee. This same bill, with a few minor changes, was enacted into law as Chapter II of the A:rm:y Reorganization Act on 4 June 1920 and is usuaJ.ly referred to as the Articles of War of 1920.

The sa.Uent features of the Articles of War of 1920 were as follows:

1. Enlisted men we:re placed on a par 'With officers with the right to prefer char@1's against anyone in the military serviQe.

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.)(0 2. The preliminary investigation of charges was made more strict than it had theretofore been. In particular" it was required that full opportunity be given accused at the preliminary ;l.nvestigation to cross-examine witnesses against him, it available.

* 3. It became mandatory for the convening author!ty to refer charges to his Staff Judge Advocate for pretrial advice.

4. Unnecessary delay on the part of an officer investigating charges or carrying a case to final conclusion was made an offense punishable by t~ial by court-martial.

5. Resort to arrest instead of confinement pending trial in cases of enlisted men charged with minor offellses was pre­scribed rather than merely being authorized. Thisplaced enlisted men upon the same footing as officers in respect to such offenses.

* 6. Resort to the use of nonjudicial punishment rather than trial by court-martial was encouraged.

7. The appointment of defense counsel in the same manner as trial counsel was made mandatory. This placed the defense on the same footing as the prosecution but did not prevent the accused from being represented by his own counsel if he desired.

J. A law member vm.s provided fo~ every general court-martial.

* 9. The referral of every record of trial by' general court­martial by the conveninG authority to the Staff Judge Advocate for a post trial reviev1 prior to action thereon was made mandatory.

10. The President was authorized to establish the maximum limits of punishment during time of war as well as in time of peace.

* ll. 'rhe reconsideratton by a court of an acquittal or a finding of not guilty of any specification was prohibited.

* 12. The adjudication 1)y a court at proceedings in revision of a sentence more severe than that preViously a.djudged (unless a mandatory sentence was involved) was prohibited.

13. Provision for r,hearings l-ere made.

14. The number of votes required to impose certain sentences was required as follows:

a. Unanimous vote for a ~ath sentence.

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b. A vote of three-fourths of the members for sentence to life or confinement for more than 10 years ..

c. A vote of two-thirds of the members for all other sentences.

15. Provision was made for a. system of appellate review for all general court-martial ca.ses.

16. Provision was made for greater flexibility in the suspension of sentences.

17. A peremptory challenge for ea.ch side was first authorized (except that the law member could only be challenged for cause ).

* Those features marked with an asteri13k were, for the most part, accomplished by general orders and changes to the Manual for Courts-Martial, 1917, in mid-year 1919.

Minor amendments were made to the Articles of War of 1920 in 1937, 1942, and 1947.

The Articles of War of 1948

As a result of World War II, "Then large numbers of civilians "lere drafted into the armed forces, especially into the Army, a loud public clamor was made for a revision of the systems of military justice which existed during vTor1d Har II in the Army and in the Naval service. By and large, these objections were aimed a.t eliminating command influence and so-called "druInhead justice." As a result, there'were a large number of investigations and reports by committees of civilians sponsored by both the Army and the navy. Proposed articles of '\-Tar and proposed articles for the government of the Navy were drafted. The Elston Bill, applicable only to the Army, was offered as an amendraent to the National Defense Act of 1947 end was enacted by both Houses of Congress. The Articles of War of 1920, as amended by the Elston Act, were later made applicable to the Air Force. This bill. substantially modified the exist:l.ng Articles of 'Har of 1920 and resulted in what is usually lmown as Articles of War of 1948. Some of the principal changes effected by the Elston Act are as follows:

1. For the first time since enactment of the original .American Articles of' vTar of 1775, warrant officers and enlisted men 'Were authorized to serve as members of gen­eral and special courts-martial.

2. The former optional provision, under the Articles of War of 1920, that the law merl1ber be a judge advocate officer was made a. mandatory jurisdictional requirement.

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3. While not an absolute jurisdictional requirement, it was required that the trial judge advocate and defense counsel of each general court-martial be a member of The Judge Ad­vocate General's Corps if available. In every case where the trial judge advocate was a member of The Judge Advocate GeneralIs Corps (or otherwise a lawyer) it was a juris­dictional requirement that the defense counsel also be so qualified.

4. The former practice of allowing an officer to act in con­flicting capacities at different times in the same case as investigating officer, trial judge advocate, defense coun­sel, member of the court, or staff judge advocate was pro­hibited. 1m exception was made, however, Whereby the ac­cused could utilize the services of an officer as his defense counsel who had previously acted in some other capacity in the case if expressly requested.

5. For the first time a general court-martial 'Was given plenary power to adjudge any legal punishment.

6. Officers were for the first time made amenable to trial by special courts-mar-'~ial.

7. A new form of punishment, known as a bad conduct discharge, ws authorized for the Army courts-martial system (the Navy had been authorized to imJ;lose a bad conduct discharge as punishment for some time). Special courts-martial were authorized to impose this type of punitive discharge. The imposition of the bad conduct discharge by a special court­martial ws, howeYer, subject to approval by the officer having general court-martial jurisdiction over t1:le command and other appellate authorities.

8. It was provided that noncommissioned officers of the first two grades could not be tried by a summary court-martial unless they specifically consented to such trial in writing. other noncommissioned officers could be tried by summary court-martial either if they did not object, or if a special COllrt-martial convening authority directed such trial.

9. The practice during 't-lorld ifar II of confining American soldiers with enemy prisoners was prohibited.

10. The right of the accused to have the same facilities as the trial judge advocate for securing the attendance of 'Witnesses and documents was expressly stated.

li. The compulsory self-incrimination protections of" the Articles of War of 1920 'Were considerably strengthened. The purpose in this action by the Congress was to prevent zealous inV'estigators from obtaining confessions by use of the $o"ca.lled "third degree."

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12. The taking and use of depositions was liberalized.

13. The authority of the law member was greatly expanded. For example, except for challenges, motions t'Clr'e. finding of not guilty, and questions of an accused's sanity, the rulings of the law member on all interlocutory questions were final.

14. It was provided, for the first time, that the law member must, in open court, advise the other members of the court of the quantum and nature of evidence required to sustain findings of guilty.

15. The former provision that the President must present his regulations prescribing the procedure and modes of proof in courts-martial before the Congress annually was repealed.

16. Wartime absence 'Without leave was added to the list of offenses for which there was no statute of limite;tion8.

17. The Judge Advoca.te General was, for the first time, g:lvan complete control over the assignment of officers of The Judee Advocate General's Corps. Moreover, the direct communication between Staff Judge Advocates and con­vening authorities was insured by a specific provision to that effect.

13. The Judic:i.al Council w.s first created.

19. The powers of confirmation granted to the President, the Secretary, The JUdge Advocate General, The Judicial. Council, and Boards of Review 'fere greatly expanded to include powers to vacate, commute, or reduce to legal limts and to restore all ;I.'ig..l-).t8, privileges, and property affected by any finding or sentence disapproved or vacS"ted.

20. Due to certain technical amendments to Article of Hal' 50, the former practice of dishonorably discharging an accused prior to review by a Board of Review was prohibited.

21. For the first time in the hi stor"J of military law, appellate reviewing authorities (Boards of Review and The Judicial Council) were expressly given broad powers to weigh the evidence, j 1.ldge the credibility of witnesses, and determine controverted questions of fact.

22. The power· possessed by wartim.e commanding generals in the field ·bo order a sentence of death executed was withdrawn. This was done, apparently, because Congress felt that only the Presj.dent (or his delegate) should exercise this power.

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23. Under new Article of War 52, rehearings were specifically authorized whenever a sentence was disapproved or vacated. This eliminated the result under the Articles of' War of 1920 that a rehearing was not authori zed where the sen­tence had previously been approved and ordered executed by the convening authorities.

24. A specific provision providing for the application of a new trial involving offenses committed during World War II was enacted. The purpose here ws to provide a means of correcting possible injustices resulting during the hectic days of World ~"ar II.

25. The former mandatory punishment of an officer convicted of being drunl' on duty by a dismissal was amended to pro­vide that any person found drunk on duty could be punished at the d;J.scretion of the court-martial.

26. Convening authorities and conunanding officers were ex­pressly forbidden from censoring, reprimanding, or admonishing a, court-martial or any of its members with respect to its findings or sentences, or the exercise of any judicial responsibility.

27. The article proscribing murder was amended to provide for two degrees of murder. Under former practice there was only one degree of murder With a mandatory punishment of life imprisonment or death. Under the 1948 Articles of War, death or life imprisonment was mandatory for pre­meditated murder, but punishment to a lesser degree waS discretionary with the court in the ease of unpremeditated murder.

28. The technical distinction between larceny and embezzlement was abolished.

29. Commanding officers t autbor!ty to impose nonjudicial punishment against officers was greatly expanded. For example, where fonnerly a forfeiture of pay of an officer could be imposed only in time of war of grave emergency, the 1948 Articles allowed imposition of this punishment at any time.

The Uniform Code of Unitary Just! ce

After the end of World War II, the movement to substantially revise the Articles of Har mainta.ined momentum even after the rather large sc::e.le amendments to the Articles of War of 1920 in 1948 by the Elston Ac·c. Even before the Elston Act, many pwople were of the opinion that there should be one system of military justice for our a:rmed forces rather than the separate systems of the .Army and the Navy. Vlith the creat:ton of the A:l.r Force in 1947, the specter of

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another system of military jus"liice added impetus to the movement toward one system of military justice. It should be noted that" although apparently unnoticed by many people, there VIas really a. fourth system of military justice in existence--namely for the Coast Guard in time of peace. In any event" Secretary of Defense Forrestal appointed a committee to draft the Uniform Code of Military Justice designed to govern all branches of the service.

This committee, known as the ForX"estal Committee" had as executive se~retary Mr. Felix E. Larkin, then the Assistant General Counsel of the Department of Defense. Mr. Larkin headed a working staff of 15 lawyers composed of officers and representatives of the Army" JlTavy" I·farine Corps, and Coast Guard, that also included five civilian lawyers. Unfortunately the service representatives were" for some reason greatly restrained by the ctvilian members of this committee. The resultant impact of this circumstance is not subject to definite assessment. The possibility remains" however, that some of our present day problems could have been avoided were this not the case. In any event, an intensive study was made of:

1. The law and practices of the several branches of the service;

2. The complaints made against the structure and operation of military tribunals;

3. The explanations and answers of representatives of the services to these complaints;

4. The various suggestions made by organi zations and indi­viduals for modification or reform and the arguments of the services as to the practicability of each; and

5. Some of the provisions of foreign milltary estabJ.ishments and their application.

The Forrestal Committee endeavored to fashion a system of military justice tha.t would be uniform in terms and in operation to all the services and, at the same time, would provtde full protection of the rights of persons subject to the Code without undue interference with appropriate militar,y discipline and the exercise of necessary military functions. To do this, it was felt that there must be" on the one hand, a complete repUdiation of any system of military justice conceived of as only an instrumentality of commend. On the other hand" the objective

. negatived a system designed to be administered as the criminal law is administered in a civilian criminal court. Thus, the Uniform Code of Military Justice represents a compromise between the desire to eliminate coIll1l1atld influence and fully protect accused persons and the desire to not unduly stifle the maintenance of discipline, as well as law and order, 'tdthin the armed forces. Possibly the biggest factor in drafting the Uniform Code of Military Justice was the same factor which so strongly influenced. the Elston Act in 1948-..namely, the el!mina.tion of command influence.

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The purpose of' the Uniform Code of' Military Justice was to es­tablish one system for the administration of military justice uni­fonnly applicable in all of its parts to the Army, the Navy, the Air Force, and the Coast Guard in time of' war and peace. It has application to both the substantiva and the 'procedural law governing mili ­tary justic~ and its administration in all of the armed forces. It superseded the Articles of War applicable to the Army and the Air Force, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard. It is the sole statutory basis today in all of our armed forces for:

1. The imposition of limited disciplinary penalties for minor offenses without judicial action;

2. The establishment of pretrial and trial procedure;

3. The creation and constitution of three classes of' courts-martial; namely, general, special, and summary courts-martial;

4. The eligibility of members of each of the courts and the qualifications of its officers and counsel;

5. The review of findings and sentence and the creation and constitution of the reviewing tribunals; and

6. The listing and definition of offenses, redrafted and rephrased in modern leg!slattve language.

Among the provisions included in the Uniform Code of Military Justice to obtain uniformity are the following:

1. Offenses made punishable by the code are identical for all the armed forces;

2. One system of courts with the same lim!ts of jurisdiction of each court is established for all the armed forces;

3. The procedure for general courts-martial is identical as to institution of charges, pretrial investigation, action by the convening authority, review by the Board of' Review, and review by the Court of Military Appeals in all the armed forces;

4. The rules of procedure at the trial, including modes of proof, ar~ equally applicable to all the armed forces;

5. The Judge Advocates General are required to make uniform rules of procedure for Boards of Review;

6. The required ~ifications for members of the court, law officer, end, cO\U1sel are identical for all of the armed forces;

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7. The Court of Military Appeals, lhich finaJ.ly decides questions of law, is the court of last resort for each of the armed forces and also acts with The JUdge Advo­cates General as an advisory body with a view to securing uniformity in policy and in sentences and in discovering and remedying defects in the system and its administration.

Among the provisions designed to eliminate command influence, and thus to insure a fair trial, are the following:

1. A pretrial investigation is provided, at which the ac­cused is entitled to be present with counsel to cross­examine available witnesses against him and to present evidence in hi s own behalf.

2. A prohibition against referring any oharge for trial 'Which does not state an offense or is not shown to be supported by suffi cient evidence.

3. A mandatory provision for a competent, legally trained counsel at the trial for both the prosecution and the defense.

4. A prohiQition against compelling self-incrimination.

5. Provision for equal process to accused, as well as the prosecution, for obtaining witnesses and depositions.

6.' A provision allowing only the accused to use depositions in a capital case.

7. A provision giving. an accused enlisted man the privilege of having enlisted men as members of the court trYing his case.

8. A provision whereby all voting on challenges, findings, and sentences is by secret ballot of the members of the court.

9. A provision requiring the law officer to instruct the court ooncerning the elements of the offense, presumption of innocence, and the burden of proof. These instructions are all to be matters of record and to be made either in open court or in writing.

10. A provision for an automatic review of the trial record for errors of law and of fact by a Board of Review witb the right of the accused to be represented by legally competent counsel.

11. A prohibition against ~eceiving pleas of guilty in capitaJ. cases

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12. A provision for the review of the record for errors of law by the Court of l~litary Appeals. This review is automatic in cases where the sentence is death or in­volves a general or flag rank officer. A review may be requested by the accused in certain cases.

To assist in understanding and evaluating the impact of the Uniform Code of Military Justice, a section by section analysis thereof is set out in Annex A. This sectional ana.lysis will be of assistance when considering specific articles of the Code. The more important changes made by the Uniform Code of Military Justice are noted in the sectional analysis. In addition, cross-reference to propos~d changes (see Proposed Amendments to the Uniform Code of Military Justice, post) are noted where appropriate.

Amendments to the Uniform Code of' Military Justice

Sections 11 and 12 of Article 2 were amended in 1956 so that civilians in Guam would not be subject to the Uniform Code.

The Codification of the Uniform Code of Military Justice

On 10 August 1956, Congress passed an act which revised, codified, and re-enacted Title 10, United States Code. Sections 801 through 940 thereof comprise the Uniform Code of Military Justice. ·Cross-reference from an art:lcle in the Uniform Code of Military Justice to the proper section in Title 10, United States Code may be accomplished by adding 800 to the Uniform Code of ~tllitary Justice article. For example: Article 63, Uniform Code of ~tllitary Justice, is 10 U.S.C. 863.

The Congressional intent in the codification was 'merely to restate existing law without substantive change. In restating the law, however, many changes in language were made. Therefore, the proper section of' Title 10, United States Code, should always be consulted when the exact language of an article· of the Uniform Code of Military Justice is desired.

Proposed Amendments to the Uniform Code of Military Justice

Two bills were introduced in the 86th Congress to amend the Uni­form Code of Military Justice. These bills are usually referred to as the Omnibus Bill (H.R. 3387) and as the American Legion Bill (H.R. 3455).

The Omnibus Bill is sponsored by the Department of Defense and flows directly f'romthe work of' a group Imow as the Code Committee. The Code Committee consists of The Judge Advocates General of the Armed Forces, the General Counsel of the Treasury Department on be­half of the Coast Guard, and the three jUdges of the United States Court of Milit~ry Appeals. The Code Committee is reqUired to meet annually; one of t ts duties being to :;reqolIlU1end amendments to the Uniform Code of' Milttary J\lsti ce • With a few m:i,nor exceptions,

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the proposed amendments to the Uniform Code of ~tllitary Justice, contained in the Omnibus Bill, have been endorsed by the Code Committee every year since its first meeting. A copy of the letter of transmittal from the Department of Defense to the Speaker of the House is set out in Annex B. The inclosures to this letter contain the statutory language of the proposed amendments and a sectional analysis of each proposed change.

The American Legion Bill is, of course, sponsored by the American Legion. Some of the proposed changes in this bill are quite similar to those in the Omnibus Bill. Others, however, propose drastic changes not contemplated by the Code Committee. A copy of the letter from the Department of Defense to the Chairman of the House of Representatives Committee on Armed Services expressing opposition to the American Legion Bill is set out in Annex C.

A comparative table of the present articles ot the Uniform Code of Military Justice, the proposed Omnibus amendments, and the proposed American Legion amendments is set out in Annex D.

An analysis of the present system of nonjudicial punislunent under the Uniform Code of Military Justice is contained in Annex E.

An analysis of the present sun:una.ry court-martial system under the Uniform Code of lfdlitary Justice is contained in Annex F.

An analysis of the present special court-martial system unq,er the Uniform Code of Military Justice is contained in Annex G.

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ANNEX A

SECT~ON BY SECTION ANALYSIS OF THE ·UNIFORM dODE OF MILITARY JUSTICE

Article 1. Definitions.

This article contains the definitions of certain words and phrases used in the UQiform Code of Military Justice.

!Jhe Omnibus Bill would add a dafinition of 1:h e words "convening authority." The American Legion Bill would amend section lO and define "law officer" in such a. manner as to require a law officer on the special court-martial.J

Article 2. Persons subject to the Code.

This article contains a. list, generally, of all persons in all categories who are SUbject to court ..mar·l:iial jurisdiction under the UCMJ. Certain specific situations are, however, covered in Articles 3 and 4. Here, for the first time I members of the Coast Guard are made subject to a system of military justice as members of ml armed force in both war and peace. Form.erly, Coast Guard persormel when sel;'Ving with the Navy were subject to the Articles for Government of th e Navy, and when not serving with the Navy such personnel were subject to the Disciplinary Laws of the Coast Guard for minor offenses and to trial in Federal courts for more serious offenses.

Military j~sdiction over persons serving a sentence by a court­martial was somewhat restricted. Under the former Army provision, any person serving a court-marti.a! sentence was subject to contillliing mili ­tary jurisdiction whether in the hands of the military or civilian authorities. Under the Uniform Code of Military Justice, jurisdiction over persons serving a sen'~ence imposed by court-martiaJ. is limited to those :Persons in the custody of the armed forces. See in thi. s connec­tion Article 58, which authorizes the placing ot persons convicted by court-martial in the custody of' civil authorities to serve their sen­tence regardless of the nature of the offense or the length of the sentence. Although this effected a change in the lm-1, the practiclU result is substantially the same under the Uniform CoCl,e ot: Military Justice as unde~ the former Articles of Wa~ because AR 633-5 restricts the categories of persons who may be placed in the custody of c1vil au­thorities to complete their sentence by court-martial.

Section 11 of Article 2 purports to malee "all :persons serving with, employed by, or accompanying the armed forces" ~thout the continentlU United States and without certain territories subject to the UCl-1J and trilU by courts-martial. 'rhe United States Supreme Court has held, how­ever, that dependents accompanying our armed forces overseas during time of peace are no-& subject to trial by court-martilU on a capital. charge. Thus, subsection 11 is, with respect to such dependents, an ineffeQtive attempt 'Qy Congress to coufer jur:l.scU.ction for trial by court-marti~ o~ a cap~tf4 chaxge. :aecause p~ the complex!ty of the problems invQlvep., one ~annot ~t:l.c:tpa*e wit1'l qe,rtainty wllether

Article 2(11) is effective to confer court-martial jurisdiction over civilian dependents overseas in time of peace for non-capital offenses.

ArUcle J. ~.s~n to try certain personnel.

Section (a) represents an attempt by Congress to provide court­martial jurisdiction over certain discharged members even after their discharge, ~his provision has been held unconstitutional by the United States Supreme Court in the case of ~ v. ~ed States.

Section (b) provides for continuing court-martial jurisdiction over pe;rosons who fraudulently obtain their discharge from the service. It conforms to prior Army practice.

Section (c) is designed to assure that a deserter who enlists and is discharged from a second term of service is still amenable to trial by court-martial for the desertion in his first term of service. This section was prompted by a Federal case, the effect of which was to bar such prosecution.

Article 4. Dismissed officer's right to trial by court-martial.

This article provides that any officer dismissed by order of the President, by applying for trial by court-martial stating under oath that he has been wrongfully dismissed, must be tried by a general court-martial convened by the President as soon as practicable. If the President does not convene such a general court-martial, or if such court-martial is convened but does not adjudge dismissal or death (as approved by appellate authorities), the Secretary shall substitute an administrative discharge for the dismissal. This effects a change from the prior statute applicable to the Army and the Air Force. Under the :prior statute, the President's order of dismissal 'Was considered void if a general court-martial was not convened upon application, or if the court was convened but did not award dismissal or death as p1,lllisbment. This change was mad.e to avoid the rather substantial doubt of the constitutionality of the former provision.

Article 5, Territorial apPlicability of the Code.

This article simply provides that the Uniform Code of 1-111itary Justice is applicable in all places without limitation.

Article 6. Judge advoca.tes and legal officers.

Sections (a) and (b) correspond gener~y with prior Army practice. Section (a), however, differs somewhat from the language of the prior Army provision in order to mah:e clear that The Judge Advocate General does not actUally issue orders as~igning judge advocates but that appropriate personnel divisions (i.e., The Adjutapt General) will issue such orders in accordance with the recommendations of The Judge Advocate Gener$l. Section (a) also plac~s all j1.lQ.ge advoc;ates under the control of The Judge Advocate Gene+,a1..

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/Jhe American Legion Bill in amending section (a) would require that all JUdge advocates, except when serving on a board of re ... view, would be rated for efficiency by The Judge Advocate General.J

Section (b) not only authorizes direct commwlication within military justice channels but also enhances t 11e position of Staff Judge Advocates by requiring direct communication between such officers and thier com" manding officers"

Section (c) is in accord with prior Army practice and is designed to secure review of a case by an impartial Staff Judge Advocate"

Article 7. Apprehensio?"

This article should be read in conjunction with Articles 8 through14, Which pro~~de for the apprehension and restraint of a. person subject to the Code.

Sections (a) and (b) are new. Section (a) defines apprehension, and section (b) sets forth the conditions under which one may apprehend.

Section (c) provides, simply" that certain persons have authority to quell all quarrels, frays, a nd disorders among persons subject to the Code and to apprehend them.

Article 8. Apprehension of deserter!:!._

This article provides that certain civil authorities, may apprehend deserters and return them to military control. It is an expansion of the prior Army provision to cover deserters from all of the armed forces.

Article 9. ]mposition Of restraint.

'rMa article, generally spealdng, effects little change from the prior Army proVision. Hmrever, section (a) clarifies the differences of interpretation ot the terms "arrest It and "confinement II under prior practices of the Army and the Navy. Section (c) effected a change for the Army to the extent that civilisns are now assimilated to officers rather than to enlisted persons.

This article, in addition to defining the terms "arrest" and "confinement, II sets out, in variouS sections, the conditions whi ch must be met before persons may be placed in either status of restraint.

Article 10. Restraint of persons charged with offenses. • A .'. '. . ­

, This article provides the basis for, and degree of, restraint of persons subject to the COde. It SUbstantially confonns to the.prior Army provision. The provision prov;4ding for notification of the aC'" cused is new.

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Article 11. Reports andreceiying of prisoners.

Section (a) provides that provost marsha.ls (and their counterparts in other services) must receive and l~eep any person subject to the Code when an officer presents the provost marshaJ. with proper commitment papers.

Section (b) provides for a report to the commanding officer of the prisoner within 24 hours after commitment.

There is no substantial change in this article from prior Army provisions although some of the language was changed to conform 'With Navy terminology.

Article 12. Confinement with enemy prison~rs prohi.?~.

This article makes no substantial change from the prior Army pro­vision. The language has been changed somewhat, hmlever, to avoid the possible interpretation of Article of War 16, which v10uld prohibit the confinement of members of t21e Army within the same bUilding with prisoners of 'WaX', The presept article is intended to permit confinement of members of the armed forces with enemy prisoners within the same confinement facility but requires segregation within the confinement facility.

LThe Omnibus Bill would amend this' article so as to clearly allow the confinement of members of the armed forces in United States confinement facilities with members .of the armed forces of friendly nationsJ .

Article 13. Punishplent. pro~bited before trial.

This article conforms s1.tbstantially to the prior Army provision. The language has been altered from its predecessor, Article of War 16, principally to clarify the relation of this article to the effective date of sentences. Article of liar 16 had been interpreted to prohibit the enforcement of any sentence until after final approval even though the accused was in confinement after the sentence was adjudged. Article 13, therefore, while prohibiting punishment of prisoners before tria.:). generaJ..ly,does now allow the forfeiture of a prisoner's pay between the date the sentence is adjudged and the date the sentence is finally approved in certain circumstances.

The latter claUSe of Article 13 makes it clear that a person being held for trial may be subjected to minor punishment for infractions of discipline during pretrial confinement.

Article 14. Delivery of offenderS to c1vil authorities. , ( ;

Section (a) provides that the Secretary of a Department may deliver a member accused of an oftense against civil authOrities over to the civil authorities for trial. This sect~qn cOnform~ to pr!or Navy practice anet -represe;t1:fs a marl~ed cbange from th~ prior Ar1Iry provision.

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Under the prior Army provision (Article of vlar 7!~), a commanding officer was required to deliver a member of his command to the civil authorities upon request, except during time of war. The Navy practice rather than the Army practice was adopted in the Uniform Code of Military Justice because Article of War 74 was enacted at a time wl1en the Army did not have authority to try its personnel for ~ivil offenses in time of peace.

/fhe American Legion Bill will amend section (a) so as to prohibit the trial by court-martial of members of the armed forces for any civil type offense except in time of war if the civil authorities having jurisdiction made a request for delivery prior to arraignment of the accuse4~

Section (b) provides that delivery of a member of t..'1e armed forces to civil authorities pursuant to section (a) will interrupt the execu­tion of any court-martial sentence and that the civil authorities must, on request, retl,lrn the member to mi;L;i..tary control. Section (b) did not effect a change for the Army.

Article 15. Commapding officer~s.nonjudic~al punishment.

Article 15 is the statutory basis for all nonjudicial punishment_ This article was drastically rewritten as it passed through the Congress. The House cut do'Wll the punisbments authorized by the Defense Department's draft, and the Senate further cut down the House authorizations •. Article 15 as enacted reflects the Senate draft, the result of which is, in many cases, lessening of tl1e ptUlishments authorized under the prior Army pro­vision, namely, Article of War 104.

ffhe Omnibus Bill would amend section (a) to allow a general co~c-martial authority to impose a forfeiture of one-half of an officer's pay a month for a period of two months. It would also allow a cOllllJ;landing officer in the grade of' major or above to impose upon enlisted personnel a forfeiture of' one­half of one month's pay and confinement for seven consecutive days~

Section (b) recognizes, and allow's for, the differences in the prior practice of the Army and Navy concerning nonjudicial punishment. The Army, under Article of War 104, allaved an election between nonjudicial punishment and trial by court-martial. Tbe Navy, under the Articles f'or the Government of the Navy, allowed no election on the theory that a commanding officer's punishment relates entirely to discipline and not to a crime. Furthermore, in many cases in the Navy, if an election were allowed, it would result in granting a subordinate offi.cer to pass on the judgment of his superior. Section (b), therefore, grants to the Secretary of each Department the right to place limitiiltions on the kind and amount of punishment authorized, the persons who may exercise au­thority, and the aJ1lplicability of ArtiCle 15 to persons who demand trial by court-martial. The practical :result herEil is that the Army and the Navy are allowed to follow their di;f'ferel}t prior practices.

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Section (c) permits "officers in chargell to impose punishment forminor offenses as authorized by regulations issued by the Secretaries ofthe Departments. This section was so worded because of the differencesin the status and authority of "officers in charge" in the variousservices. For example, in the Navy an 1I 0 fficer in charge" is alwaysa commissioned officer. vJhereas in the Coast Guard an 1I0fficer incharge II is construe<l to include noncommissioned officers as well ascommissioned officers.

Section (d) provides for the appeal by a person punished under theprovisions of Article 15. This section incorporates and strengthens theprior Army provision.

Section (e) conforms to the prio:!." Army provision and provides thatthe imposition of punishment ~der Article 15 is p.ot a bar to trial bycourt-martial for a serious offense but is a bar to trial f or a minoroffense.

Article 16. Courts-martial classified., ~-.

This article c~arifies the types of courts-martial and their composi­tion. There is no change from the prior Army provisions except that thelaw member is redesignateo. ti.1e 1a\., officer, and the latter is no longer amember of the court.

LThe Omnibus Bill would amend section 2 of Article 16 to providefor a single officer special court-martial consisting of a lawofficer. Both the accused and convening authority would have toconsent to the use of such a one officer special court-martial.The law officer who vIDuld sit as a single officer special court­martial would have to be certified as qualified for such duty byThe Judge Advocate General.

The American Legion Bill would anlend Article 16 to provide thata special court ..martial would have a law officer in addition tothe members presently required. This would be consistent withthe American Legion amendment to section 10 of Article l~

Article 17. Jurisdiction of courts-martial in general.I

Section (a) provides that each armed force has court-martial juris­diction over all persons subject to the Code, thus providing for recipro­cal jurisdiction among the a:I.~ed forces. The exercise of jurisdictionby one armed force over personnel of another armed force, however, mustbe in accordance with regulations prescribed by the President.

Section (b) provides, where reciprocal jUJ;'isdiction has been exer­cised, that the appellate re'new required by the Code shall be carriedout by the armed force of which the accused is a member.

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The provisions of this article are quite new. Under the former Articles of ~var, the Army was able to exercise jurisdiction over Marine Corps personnel and certain Naval personnel in some special situations. The other services, however, had no jurisdiction over Army personnel.

By Executive Order, the President delegated to the Secretary of Defense the authority to empower co~nders of joint commands or task forces to convene general courts-martial for the trial of any member of the armed forces. The Secretary of Defense has in fact, in a few cases, empowered certain joint commanders to exercise reciprocal jurisdiction.

Article 18. Jurisdict~on ,?J[ general courts-martial.

This article provides that general courts-martial have jurisdiction to try any person subject to the Code for any offense and adjudge any legal punishment unOar such r~gu1ations that the President may prescribe. It also provides that general courts-martial have jurisdiction to try any person who by the law of 'War is subject to trial by a military tribunal and adjudge any punishment not forbidden by the law of war.

Article 19. Jurisdiction of special courts-martial.

This article provides for the jurisdiction of special courts­martial and sets the limitations on various punishments which may be imposed. This article is detived from Article of War 13 and effected no change for the A..""'IDy.

LThe American Legion Bill would amend Article 19 eo that special courts-martial would no longer be empowered to impose a bad con­duct discharge. This accords with present AJ:mY policy as pro­mulgated in AR 22-145 Which regulation as a practical matter has precluded special courts-martial within the Army from adjudging a bad conduct discharge for sometime.J

Article 20. Jurisdiction of s~a~J courts-martial.

This article provides for the jurisdiction of summary courts­martial and sets forth the limits of punishment which may be imposed.

The article also provides for the right to refuse trial by summary court-martial except in those cases where the accused has been permitted to refuse punisl~ent under Article 15.

The absolute right to refuse trial by summary court-martial re­ferred to in the preceding subparagraph reprelilents a change from the prior Army provision providing for S'UUIIllB.ry courts-martial. See principal change No.8 to the Articles of War as made by the Elston Act, supra, page 7.

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Article 21. Jurisdiction of courts-martial not exclusive.

This article was inserted to insure that the enactment of the Uniform Code of Military Justice would not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses who, either by statute or "by the law of war, may be tried by military commission, provost courts, or other military tribunals.

Article 22. 'Who may convene general courts-J;lla.rtial. ""-_.. .; OJ j.,

Section (a) lists the persons who may convene general courts­martial as defined by Article 16. This section was derived from Article of War 8 which was altered only to the extent of including terminology applicable to Air Force and Navy commanders who occupy positions on a par with Army commanders.

Section (b) is also derived from Article of Ivar 8 and provides that the accuser in any case may not convene a court-martial f OT "I:.he trial of that case. An accuser is defined by section 11 of Article 1 ..

[The Omnibus Bill would amend section (b) to provide that if the convening authority (except tbe President) is an accuser, the court must be convened by competent authority not subordinate in command or grade to the accuser;]

Article 23. 'Who mar convene specialcourts-ma~~ial.

This article is similar to Article 22 eXc8pt that it perce..:l.ns to the special courts-martial.

[The Omnibus Bill 'Would amend section (b) of Article 23 in the same fashion that it would amend section (b) of Article 22;]

Article 24. Who may convene summary courts-martia,l.

This article is also similar to Article 22 except that it pertains to summary courts-martial.

fjhe American Legion Bill 'Would amend section (b) of Article 24 to prohibit an officer from acting as a summary court when such officer is the only commissioned officer present with a command or detachment;]

Article 25. 'Who may serve on courts-martial.

Sections (a) , (b), and (c) make personnel of any armed force competent to sit as members of courts-martial without regard to whether they are members of the same armed force as the convening authority or the accused. ThiS, of course, effects a change from the former Army provision (ArtiQle of IV'a,r 4) to the effect that only Army personnel could sit on trials by oourts-martiaJr of Army personnel.

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Article of Far 4 did, however, as an exception to the foregoing state­ment, provide that Marine Corps personnel could sit on the courts­martial of the trial of Army members when such Marine Corps personnel v~re detached for service with tile Army by order of the President. Thus, to a limited extent, Article of Hal' 4 was a forerunner of P..rticle 25. These sections, however, must be read in conjunction with Article 17.

["The Omnibus Bill would amend section (a) to provide that an officer to be eligible for appointment as a single officer special court~martial must have the same qualifications as a law officer and must be certified as qualified for duty as a single officer special court-martial by The Judge Advocate General. This proposed amendment must be read. in conjunction with the proposed amendment in the Cmnibus Bill to section 2 of Article l6.!.7

Section (c), in addition, limits the c~etency of enlisted persons to sit as members of courts-martial to cases where they are not members of the same unit as the accused. This proviso of section (c) was derived from Article of Ha;r:o 16 and effected no change for the Arrrt:f.

Subsection (d)(l) provides that no person shall be tried by a court-martial, any member of which is jun10r to him in rank or grade. 'Ibis provision also was derived from Article of 1-]ar 16 and effected no change in SUbstance for the Arrrry.

Subsection (d)(2) provides some general guide lines for convening authorities in appointing members of courts-martial. No real change of substance was effected for the Army. The last sentence of this sub­section prOVides for the statutory disqualification of members of courts-martial and represents some change for the Army. For example, a person who has acted as investigating officer or as eounsel in the same case is, under the Uhiform Code of ~lilitary Justice, disqualified for membership; Whereas, under the Manual forCourts ..Martial, United States, 1951, these two categorie~ of persons would. only have been subject to challenge for cause.

LThe American Legion Bill would amend subsection (d)(2) to clearly prOVide that an accuser, a witness tor the prosecution, or one who has acted as investigating officer or counsel in the same case would be ineligible to serve as a m~mber of a court-martial.!.7

LThe American Legion Bill would amend A+ticle 25 by adding section (e) thereto prOViding that a summary court~martial must have the same qualifications as the law officer of a general court-martial..:.,!

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Article 26. Law officer of a gen;eral court-martial. ,

section (a) provides for the qualifications and disqualifications of law office~s.

Although this entire article was derived from Article of War 8, the real change is reflected in section (b), which provides that the law officer is not a me.'1lbel" of the court, nor may he consult with members of the court except in the presence of accused other than on th~ form of the findings.

/Jhe l\uI.erican Legion Bill would amend section (b) and prohibit the law officer from assisting the court in placing the findings in proper form~ _

LThe American Legion Bill would further amend Article 26 by adding section (c) thereto providing that the law officer would preside over all proceedings of general and special courts­martial except When, the court was clo~ed for deliberation or votingJ

Article, 21. AP1?ointIJ!ent of trial counsel and defense counsel.

Section (a) provides generally for 'the appointment of trial counsel and defense counsel and sets forth some specific disqualifications.

LThe .American Legion Bill 't-Tould amend section (a) and require the detail of a defense counsel before a st.1ll1171ary court-martial upon request of the accusedJ

Section (b) sets forth the specific qualifications for those persons appointed either as trial counselor defense counsel. This section effected a moderate change for the Al'"nly in that under the Uniform Code of Military Justice counsel for general courts-martial must in all cases be lawyersj under the Articles of War, non-lawyerS could b~

appointed in certain cases. The reqUirement for certification of trial and defense counsel of general courts-martial Bet out in sub­section (b)(2) is new.

Section (c) provides for the qualifications of counsel before special courts-martial and is derived from, and is substantiaJ.ly the s~ne as, Article of War 11.

Article 28. A~ointment.$ reporters and interpreters.

This article provides authority for the appointment of reporters and interpreters pursuant to regulations issued by the Secretary of the Department. This article is substantiallY' the same as Article of '.]ar 115, the prior Army provision from 'Which it was derived. The power to appoint reporters a.nd interpreters, however, was shifted from the president of the co\lrt und,el:' Article of vTar 115 J to the convening authority under Article 28.

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Artiole 29. Absent and additional members.

Section (a) limits the reason for excusing membe~s of courts-martial after arrai gnment and is new.

Sections (b) and (c) specify the procedure for replacing absent members of general and special courts-martial.

LThe American Legion Bill would amend section (c) by requiring the procedure presently required when a new member is placed on a special court-martial to·be conducted before the law officer thereof and the members. This change is consistent with the concepts otherwise proposed in the American Legion Bill to provide a law officer on special courts-martial.J'

Article 30. Charges and specifications.

This article describes the procedure to be followed in the pre­ferring of charges.

Section (a) is substantially the same as Article of War 46, from which it was derived.

Section (b) is new and provides for the immediate disposition of charges; and for informing the accused, as soon as practicable, when charges are preferred. See Article 98, which makes it an of:'ense to unnecessarily delay the disposition of a case. See also A:r"ticIe 10, which provides that a person placed in rest~aint be promptly informed of the specific wrong of which he is accused.

Article 31. Compulsory self-incrimination prohibited.

This article was derived from Article of War 24 and prohibits generally any compulsory self-incrimination.

Section (a) provides that no person subject to the Code shall compel any other person to incriminate himself and, thereby, extends the privilege against self-incrimination to all persons under all circumstances. Under the predecessor provision, Article of War 24, only persons who were witnesses were specifically granted this privilege.

Section (b) provides that no person subject to the Code shall interrogate or request any statement of an accused or a person suspected of an offense without informing him of his rights. This advice must include a statement of the nature of the accusation, that no statement need be made, and that if any statement is made, it may be 'Used as evi­dence against him. This section broadens the comparable provision in Article of War 24 to protect not only persons who are acc'Used of an offense, but also those who are suspected of one.

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Section (c) provides that no person sub.iect to the Code shall compel any person to make a statement or produce evidence before ally military tribunal if the same is not materiaJ. and may tend to degrade him. This section is similar to Article of War 24 in tha.t the privilege against self-degradation is granted to w.Ltnesses before a. military tribunal and also to persons who make depositions for use before a military tribunal. It is made clear, however, that this privilege cannot be invoked where the evidence is materiaJ. to the issue.

Section (d) provides that no statement obtained in violation of Article 31 or through the use of coercion, unlawful influence, or unlaw... ful inducement may be received in evidence against such person in a. triaJ. by court.martial. This section effected a change from the comparable provision in Article of War 24 in that under section (d) statements or evidence obtained in violation of sections (a), (b), and (c) are admissible only against the person fr01l1 whom they were obtained. This conforms with the theory that the privilege against self-incrimination and self­degradation :1,8 a personal one.

~icle 32. fnvestisetion.

This article provides generally for a pretriaJ. investigation in all generaJ. court-martial cases. Various section s provide for the SUbject matter of' the investigation, the pl"Ocedure, and the right to counsel. This article was der!ved from Article of War 46.

Section (a) effects no change in substance from ArV.cle of 'Wlj,r 46.

The last clause of section (b) p:roviding that a copy of the state­ments be given the accused is new. Otherw.Lse, this section conforms to the comparable provision of Article of War 46.. .

Section (c) is new and is designed to eliminate duel investigations. Thus, where there has been a previous investigation, an Article 32 in­vestigation is not required unless demanded by the accused.

Section (d) provides that, though the requirements of Article 32 a:re binding on aJ.l persons administering this Code, failure to follOW the provisions of Article 32 shall not constitute jurisdictional error. This section was added by Congress to p:revent Article 32 from being construed as jurisdictional in habeas corpus proceedings. It should be observed, however, that an officer who has the responsibility to order a pretrial investigation and who intentionally fails to have ~uch an investigation conducted" and such failure substantially prejudices the rights of an accused would be guilty of an offense under Article 98.

Article 33. Forwardine; of char&es.

This article provides for a report in writing if charges and the Article 32 investigation are not forwarded to the officer exercising general court-martial author!ty within eight days after an accused is ordered, into arrest or confinement for triaJ. by general court-martial. This article is derived :f');om I\rtic:t.e of Wal:' 46 and is intended to insure

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the expeditious processing of charges and specifications in general.court-martial. trials. Other than the requirement that the report bein writing, no change was made from the comparable provision inArticle of War 46.

Article 34. Ad~ice of staff judge. advocate and reference for trial.

This article is the statutory requirement that a convening au­thority must obtain pretrial advice from his Staff Judge Advocate ingeneral co"U,rt"!'martial cases.

Section (a) is derived from Article of War 47, and no substantialchange was effected. It does now make it clear that the finding, thatthe charge alleges an offense and is warranted by the evidence, is tobe made by the convening authority and not the Staff Judge Advocate.This clarifies this ambiguity in Article of War 47.

Section (b) allows formal corrections in the charges and specifi­cations as well as changes to mal~e the charges and specificationsconform to the evidence contained in the investigating officer'sreport. This provision w.s derived from the Manual for Courts-~ia.l,

United States, 1949. . I- ,~

Article 35. Service of charges.;;.",;.;;,....,.....;..;.,;;.....;.,.......;.=..;;;.-

This article provides for service Of a copy of the charges on theaccused and also provides that in time of peace no person shall be triedover his objection by general court-martial within five Clays subsequentto service of charges or by special court-martial within a period ofthree days subsequent to the service of charges. This article wasderived from Article of War 46. '.['he only principal change in SUbstancetherefrom is the insertion of a three-day time limit on trials by specialcourt-martial. Article of Hal' 46 only contained the. five-day timelimit concerning general courts-martial.

Article 36. President may prescribe rules.

This article provides the present statutory basis for the Presidentto prescribe rules of procedure including modes of proof for all themilitary tribunals. This article is derived from Article of War 38 andwas broadened to apply to all military tribunals of all of the services.Section (b) was added by the House Committee to insure the uniform!tyof such rules in all the services ~

fjhe American Legion Bill would revise Article 36 completely.It would require that the rules of procedure in couTts-martialbe prescribed by the United States Court of Military Appealsand that the rules of evidenoe applicable in the United StatesDistrict Court for the District of Columbia be applicable tocourts-martiaJ. (with nrl.nor exceptions otherwise made in theamendment ):7

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Article 37. Unlawfully influencing action of court.

This article prohibits convening authorities and commanding officers from unlawfully influencing the law officer, counsel, and members of courts-~tial. It also proscribes unlawfully influencing any convening or reviewing authority with ~spect to their judicial acts. This article incorporates the provisions of Article of War 88. In addition, however, it prohibits the unlawful influencing of' the law officer or counsel.

This article, as was its predecessor, is not intended to preclude the reviewing author!ty from u;aldng fair comments on errors· of the court in an opinion which is made in the course of' a reviewl or from returning a record for rev"'lsion, or trom talting appropriate action when a member of the court has so misbehaved so a.s to aba+ldon his judicial responsibility or duties. Violations of this artiGle, however, consti ... tute an offense under Article 98.

lfhe Omnibus Bill wo~d amend Article 37 to provide clearly that no commanding officer or any officer on the staff of any cOl1lDlEUlding officer should unlau:fUUy influence law officers, counsel, and members of courtsJ

/Jhe American ~gion Bill would supplement Article 37· by adding section 1509 to title 18, United States Code, providing that whoever censures, reprimands, aboli~hes or endeavors to cohere,

improperly influence, directly or indiI'ectly, any court ...martial or other military tribunal shall be fined not more than $5,000.00 or imprisoned for not more than f;Lve years or both:7

Article 38. I]uties of trilU counsel aqd defense counsel.

This article provides generally for the duties of trial and defense counsels. Sections (a) and (b) were derived from comparable provisions in Articles of War 11 and 17.

[fhe American Legion Bill would amend section (a) to provide that the trial counsel would prepare the record of trial of special and general courts-martial under the direction of the law officer:l

Section (0) is new and is designed to encourage defense counsels to submit briefs in appropriate cases.

SectioIB (d) and (e) are derived from Article of War 116. However, these two sections impose stricter requirements governing the circum­stances under Which assistant counsel ma.y act independently of the t~ia~ qounsel or defense counsel in order to maintain the quantity of counsel and to protect the acc~sed.

Article 39. Sessions. I •

This article provides that only members of generaJ. and special courts-martial shall de~~berate and vot~ on ~h~ findings and sentence. By its terms" ho'to1eveJ'~ th~ laW officer is allowed to assist the court

14

in placing the findings in proper form. It aJ.ao provides for the re­cording of all proceedings. It expands the provision of Article of War 30 and provides for the presence of all parties and the law officer in general courts-martiaJ. except when the D1embers of the court retire to vote or deliberate or when the law officer assists the court with the findings. It further prohibits the court from conaulting either with trial counsel, defense counsel, or the law officer in the absence of the others.

ffhe American Legion Bill would amend Article 39 to prohibit the law officer of a general court-martial from assisting the court in placing its findings in proper form. This proposed amendment should be read 1nconjunction with the proposed amendment of the American Legion Bill to Article 26J

Article 40. Continuances.

This article provides simply that a court-martial may gr~t a con.. tinuance for reasonable cause and folloWS the comparable former Army and Navy provisions.

!Jbe American Legion Bill woulci a.lIlend Artiele 40 to clearly provide that in general. and speciaJ,. courts-martial it is the law officer who may grant continuancesJ

Article 41. ChaJ.lenges.

This article provides for challenges for cause and peremptory challenges.

Section (a) provides for challenges for cause and is SUbstantially the same as Article of War 18, from which it was derived.

[The American Legion Bill would amend section (a) to provide that the law officer would determine the val1d1ty of: challenges for cause rather than the court as is now provided by section (a);]

Section (b) authorizes one peremptory challenge by the trial. eounsel and one peremptory challenge for each accused. This effected a change from a comparable provision in Article of War 18 in that formerly only one peremptory chaJ.1enge was allOloJed to the defense regardJ.ess of the number of defend8l,lts. Under prior Navy law, no peremptory challenges were aJ.lowed.

/Jhe omnibus Bill would anlend section (b) to provide that a single officer special court-martial would only be subject to challenge for cause and could not be peremptorily cba11en~d.J

Article 42. Oaths • . ,

This article requires that all officials and clerical assistants of general and special courts-martial be sworn. The oaths are not described in the Code as it was felt by the Congress that the language of the oaths was suita.ble matter to be covered by regulations. The Manual for Courts­Martialz United Ste-tea, 195:L, provide$ f'0l1 these va.r:i,ous oa.ths substantially in the same form as' u~eabythe ArmY tm~r :p~10r me.nu~s.

15

Article 43. Statute of limitations.

This article provides for a statute of limitations for all of the various offenses punishable under the Code.

Generally speaking, this article provides a statute of limitations of three years for the more serious offenses, a statute of limitations of two years for less serious offenses, and no statute of limitations for the of­fenses of desertion or AWOL in time of 'War, aiding the enemy, mu-'ciny, &1d murder.

In general, Article 43 is comparable to the former Army provisions except that (1) aiding the enemy 'Was added to the list of offenses which may be tried and punished at any time; (2) section (c) of Article 43 added a statutory time limitation on nonjudicial punishmentj and (3) section (b) of Article 43, adapted from Article of War 39, changed the time when the period of limitations would stop nll1lling from the time of arraignment to the time sworn charges a..11.d specifications are received by an officer exercising summary court-martial jurisdiction over the command.

Section (d) provides for certain circumstances under which the statute of limitations will not run.

Section (e) provides for a temporary suspension of the statute of limitations for any offense, the trial of which would be detrimental to the prosecution of a war or inimical to the national security.

Section (f) incorporates a similar provision in 18 U.S.C. 3287 which otherwise might not be applicable to court-martial cases. This section generally provides for a suspension of the running of the statute of limitations in procurement matters generally during the of vTar and for three years after the termination of hostilities.

Article 41~. Former jeopardy.

Section (a) provides that no person shall, ,dthout his consent, be tried for a second time for the same offenses and preserves for the members of the armed forces comparable protections afforded in the Fifth Amendment to the Constitution. A similar provision has been in the Articles of War since 1806.

Section (b) sets forth the condition which must be met before a trial by court-martial becomes a trial.

Section (c) provides that any trial which is terminated after the introduction of evidence by the convening authority or the prosecution for failure of evidence or witnesses without any fault of the accused shall be a trial in the sense of this article.

Article 45. !1..eas of the accused.

Section (a) provides for entering a plea of not guilty for the accused in the event he makes any irregular pleading or in any manner improvidently pleads guilty, or if he fails or refuses to plead at all. This section follows the comparable provision in its predecessor, Article of War 21.

16

Section (b) is new and provides that the accused may not plead guilty where the death penalty may be adjudged. This rule, while not·a. provision of law under the former Articles of' Hex, was followed by the Army as a II1atter of policy. This same rule "ras also followed by the Navy as to certain capital offenses.

Article 46. opportunity to obtain witnesses and other evidence.

This article provides equal opportunity for the prosecution and the defense to obtain witnesses and other evidence. It was derived princi­pally from Article of Hex 22. The Congress purposely left the mechani­cal details of the issuance of process to regulations.

Article 47'; Refusal to appear or testify.

This article provides the authority, and the penalty for the vio­lation of' such authority, to compel persons not subject to the Code to testify in court-martial cases when duly subpoenaed. This article was derived principally from Article of' vlar 23 (although the Navy had a similar provision). A Violation of this article is punishable only in a United States district court or in a court of original cr1ndnal juris­diction in any of the Territorial possessions of the United States.

Article 48. Contempts.

This article was derived from Article of War 32 and perpetrated the authority of' courts-~tial an<;l other military tribunals to swmnarily punish for contempt any person who uses any-menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder.

Article 49. Depositions.

This article provides f'or the taking and use of depositions in trials by courts-martial. No substantial change was effected from the comparable prior Army provision.

Article 50. Admissibility of' r~cords of courts of' inquiry.

This article specifies the conditions under which the records of a court of inquiry may be used in a subsequent court-martial case. This article is derived from Article of 'It!ar 27 and is also similar to prior Navy practice.

Article 51. Voting and rulings.

Section (a) prescribes the manner in which members of a court­martial shall vote.

Section (b) provides authority for the law officer Of the general court-martial and the president of a special court-martial to make final rulings upon all interlocutory q.uestions other than challenge for cause, a motion for a finding of' not guilty, or a question of' the accused's sanity. .

17

~The Omnibus Bill would amend section (b) to allow the law officer to rule finally on a motion for a finding of not guilty. It would further provide that the law officer could ch8J.lge any of his rulings made during the trial except where a ~otion for a finding of not guilty was granted~7

["The American Legion Bill would also amend section (b) and to provide that the law officer's ruling on a motion for a finding of not guilty would be final.J.·· .

Section (c) prescribes that the law officer of a gener~l court­martial and the president of a specj.al court-martial must instruct the court as to the elements of the offenses, presumption of innocence, reasonable doubt, reasonable doubt as to the degree of guilt, and the burden of proof before the court closes to vote on the findings. This section was intended to set out the minimum requirements as to the scope of the instructions.

jJhe American Legion Bill would amend section (c) to provide that the law officer rather than the president of a special court­martial would instruct the court on the elements of the offense and other required instructions. This change is consistent with the concept of haVing a law officer on a special court-martial as otherwise provided by proposed amendments in the American Legion Bill.J

The provisions ·ot this article ·are, in general, derived from Article of War 31.

LThe Omnibus Bill would amend Article 51 by adding section (d), providing that sections (a), (b) l!Zld (e) would not apply to a single officer special court-martial and that the single officer special court-martial would determine all questions of law and fact and adjudge the sentence~7

Article 52. Number of votes required.

This article prescribes the number of votes required in various circumstE)nces in trials by courts-martial and is derived from ~ticle

of War 43.

SubSection (b}(3) clf,lrifies the comparable provision in Article of War 13 as to the number of votes required for a sentence which does not extend to death or imprisonment in excess of 10 years.

Section (c) clarifies the comparable provision in Article of Har 43 for the method of determining issues to be decided by a majority vote when the vote is tied.

LThe American Legion Bill would delete the language in section (c) related to a tie vote on a motion for a finding of not guilty. This amendment is acquired because of the amendment proposed by the American Legiqn Bill to section (b) Of Article 51, which would aU-ow the law officer to rule finally 9n a motion for a finding of not guilty;; .

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kticle 53. Court to announce action.j

This article is larg-ely ne'\" and provides that every court-martialmust announce its findings and sentence to the parties a.s soon as de­termined. Article of War 29 requir~d that an acquittal "be announcedbut left the announcement of a sentence of findings of guilt;y to thediscretion of the court. Corlg.ress felt, however, that the accused andhis counsel should be informed of the outcome of the trial as soon asthe results are determined.

Article 54. Record of trial.q. I'

Sect:l,.on (a) provides for the maintenance and authentication ofrecords of trial by general courts-martial. This section differs froma comparable provision in Article of War 33 in that now the law officerand the president authenticate a record of trial by general court­martial, whereas under Article of \<Tar 33 the trial counsel and thepresident authenticated such record.

!fhe Omnibus Bill would ronend section (a) so that a s~unmarizedrecord of trial could be made for all general and special courts­martial, not including a bad conduct discharge or a greater sen­tence that could othej.~vdse be adjudged by a special court-martialJ

!fhe American Legion Bill would amend section (a) and requirethat all general and special courts-martial records of trialbe authenticaolied by the law officer and the senior member presentJ

Section (b) proVides for the maintenance and authentication ofrecords of trial by special and summary court-martial. The authenti­cation of these records is left to reSLuations prescribed by thepresident. fhis section is derived from Article of War 34.

@ection (b) as conteE1plated by the Omnibus Bill will allowan accused to have a verbatim record of trial by generalcourt-martial made at his o'Wn expense where the same is notrequired by law.J

Section (c) is new O-l'1d provides that a copy of the record oftrial in each general and special court-martial case be given tothe accused as soon as aut.henticated. Under Article of Har 111 acopy of t;1e general court-martJ.al record was given to the accusedif he demanded it. Under t.he prior Navy practice t.he accused wasautomatically given a copy of the record of each general court ..martial. This article, of course, goes further tl~ either t0eprior Army or Navy practice.

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Article 55. pruel and unusual ;puni.shmen~s prohibited.

This article prohibits cruel and unusual punishments and, generally spe&{ing, re-enacted existing provisions of law. See comment under the Articles of ~'Tar of 1874, supra, wherein the punishments of flogging, branding, marking, and tattooing were first prohibited in the Army.

Article 56. Maximum limits.

This article authorizes the President to establish the maximum limits of punishment for any offense except one for which a mandatory punishment is prescribed. There was no change in substance from the prior comparable Army provision.

Article 57. Effective date of sentences.

This article is new. Section (a) prohibits the forfeiture of pay or allowances coming due before the date of approval by the convening authority. Formerly, in the Army, pay and allovlances vlhieh became due prior to the date of approval of the sentence by the convening authority could be forfeited~ Under thil? section, however, the forfeiture of pay and allowances becoming due after the date of approval by the convening authority, but before the date Of final approval, is permitted.

Section (b) provides that a sentence to confinement begins to run on the date adjudged.

Section (c) prOVides that all other sentences shall become effective on the date ordered executed.

Article 58. Execution of confinement.

Section (a) authorizes any sentence of confinement adjudged by court-martial or other military tribunal to be carried into execution by confinement in any place of confinement under the control of any of the ~ed forces. In addition, it authorizes confinement in any penal or correctional institution under the control of the United States or which the United States may be allowed to use. This latter provision was derived principally from prior Naval law.

Section (b) was derived principally from Article of VJar 37 and pro­vides that the omission of words "hard labor" in any sentence adjudging confinement shall not be construed as depriving the authority executing such sentence of the power to require hard labor as a part of the punish­ment.

Article 29. Error_of lavT; lesser included offense.

Section (a) was adapted from Article of Har 37, and a comparable provision of Naval Courts and Boards, and provides that a finding or

20

sentence shall not be held incorrect because of an error of law unless the error materially prejudices the substantial rights of the accused.

Section (b) was derived from Articles of 't'lar 47 and 49 and the Manual for Courts-Martial, U. S. f.rr!!Y, 1949". It provides revie1n.ng authorities with the power to approve or affirm lesser included offenses. See Article 79 for a definition of a lesser included offense.

Article 60. ~tial a.ction on the record.

This article prescribes who may take initial action on records ot trial of courts-martial. It was derived mainly from Article of Har 47.

Article 61. Same--General court-martial records.

This article provides that the convening authority must in every general court-martial case obtain the written opinion of his Staff Judge Advocate thereon prior to taking bis action. This article was drawn principally from a comparable provision in Article of 'VTar 47.

Article 62. Reconsiderat~on and revlPion.

This article provides the conditions where a convening authority may return cases to the court for reconsideration and review.

No provision similar to section (a) was in either the Articles of Har or the Articles for the Government of the Navy. Under the prior practice in all of the services1 however, the convening authority possessed such power.

Section (b) incorporates similar provisions found in ft~ticle of War 40 and prohibits returning a record for reconsideration of a finding of not guilty, a ruling which amounts to a finding of not guilty, or increasing the severity of the sentence (except where a mandatory sentence is involved).

Article 63. Rehearings.

Section (a) provodes authority for a convening authority to order a rehearing where he disapproves the findings and sentence, except where there is a lack of sufficient evidence in the record to support the findings. The Army has had a similar provision in the Articles of 'VTar since 1920.

Section (b) sets forth certain restrictions on all rehearings. Mainly, (1) members at the rehearing must not have been members 'ltlhich first heard the case, (2) the accused may not be tried for any offense of which he was foUnd not guilty at the first trial, (3) no sentence in excess of or more severe than the original sentence shall be imposed at the rehearing unless based upon findings of guilty not considered at the first trial or unless a mandatory sentence is involved.

21

Article 64. Approval by the 9~r.!ing authority.

This article authorizes the convening authority to approve only such findings of guilty and the sentence or such part or amount of the sentence as he finds correct in law and fact and determines should be approved. It conforms substantially to the prior practice in all of the services. This article should be read in conjunction with Articles 29 and 79. It is clear also that a convening authority may disapprove a finding or a sentence for any reason or for no reason at all.

Article 62' Disposi~ion of records after review b~ the convening authority,

This article prOVides generally for the disposition of records of trial after review by the convening authority.

Section (a) incorporates prior Army practice under Article of War 35, and provides that after review general court-martial cases shall be sent to The Judge Advocate General.

Section (b) prOVides that records of trial by special courts-martial, where a bad-conduct discharge was adjudged and approved by the convening authority, must be forwarded to the officer exercising general court­martial jurisdiction over the command or directly to The Judge Advocate General. This provision was adapted from Article of Vlar 36 except for the alternative of sending the record directly to The Judge Advocate General. This alternative was permitted in order to prOVide for situations where no judge advocate is assigned to the staff of the officer exercising general court-martial jurisdiction or where di rect transmittal to TIle Judge Advocate General 1-Tould be more expeditious. A record of trial by special court-martial fO~varded to the officer exercising general court-martial jurisdiction must, if the sentence approved by such officer includes a bad-conduct discharge, then be forwarded to TIle Judge Advocate General. Any record of trial by special court-martial, where the sentence includes bad-conduct discharge, is ultimately forwarded to The Judge Advocate General for review by a board of review.

Section (c) is derived from Article of \Tar 36 and permits the revie,v of special courts-martial not involVing a bad-conduct discharge and all summary courts-martial to be as prescribed by regulations, subject to the requirement that all such records be reviewed by an officer of The Judge Advocate General r s Corps.

jJf.he Omnibus Bill would make several amendments to the various sections of Article 65 which would have the result of no longer requiring general court-martial cases where the sentence did not include a bad-conduct discharge or was no greater than could othervnse be adjudged by a special court-martial to be forvTarded for appellate review~

LThe American Legion Bil~ wo~d amend section (b) of Article 65 so as to no longer req~ire any s;pec;l.~ ~ourtf"martial to receive

22

any review other than what is now required of summary courts­martial. This amendment is consistent with other amendments in the American Legion Bill which would prohibit a special court­martial from adjuding a bad conduct discharge;!

Article 66. Review by the board of review.

Section (a) provides for the composition and qualifications of memebers of boards of review. This section adopts the prior Army practice of review by a formerly constituted board. The required qualifications of the members are neio}'. The proviso that members of the board of review may be either officers or ciVilians was adopted principally in order that the Coast Guard, which. is under the jurisdiction of the Treasury Department during time of peace, could utilize civilians on their boards of review.

LThe American Legion Bill would amend section (a) to provide that boards of review would be constituted by the Secretary of Defense (except for the Coast Guard). Board of review members serve until relieved by the Secretary of Defense and would be excluded from the not more than one thousand officers detailed to the .~ general staff and also not subject to the present limitations that an officer may not serve at The Pentagon for more than four years. 1fJ.embers of the boards of review would be rated for efficiency by the secretary constituting the board, which in the case of the Army would be the Secretary of the Army.J

Section (b) provides for automatic reView, whether o~ not the sentence is suspended, for certain types of cases which are specified. Types of cases when automatic review is required are substantially the same as those in a comparable provision in Article of Har 50 •

./!fue Cmnibus Bill would amend section (b) so that review by a board of review would not be required in guilty plea cases unless the approved sentence extended to death, affected a general officer, or extended to the dismissal of a commissioned officer or cadet~7

Section (c) provides that the board shall act only with respect to the findings and sentence approved by the convening authority. This provision insures that the findings or sentence may not be increased on appellate review. This section also provides that the board shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, which it determines correct in law and fact and determines, on the basis of the entire record, should be approved. It is also prOVided that the board may weigh the eVidence, judge the credibility of witnesses, and determine controverted questions of fact. This latter provision made its first appearance in the law as a result of the Elston Act of 1948. See principal change 21 thereunder.

23

Section (d) grants specific authority to the board of review to order rehearings. Inferentially, this authority is subject to the limitations of Article 63b. This provision vlas derived from Article of Har 52 and effected no change for the Army.

Section (e) provides that where appellate review is complete at the board of review level, The Judge Advocate General will instruct the convening authority to take action in the case in accordance 'with the board's decision. The last sentence of this section is the statutory basis for a convening authority to dismiss charges where a rehearing has been ordered by the board of review but the convening authority finds that to hold a rehearing would be impracticable.

fihe Omnibus Bill would amend section (e) to give The Judge Advocate General authority to dismiss the charges vlhenever a board of review orders a rehearing and he finds a rehearing impracticable..!.?

Section (f) proVides statutory authority for The Judge Advocates General to prescribe uniform rules of procedure for proceedings before boards of review.

Article 67. Review by the Court of Mil!tary Appeals.

This article established the United States Court of Miltiary Appeals which consists of three civilian judges. Thus, the most revolutionary change '-1hich has ever been incorporated into military justice ,res made. Under all prior law applicable to each of the services, appellate review 1iaS conducted solely within the military Department.

Section (a) makes provision for establishing the United States Court of Military Appeals, who may serve as judges, and provides for their compensation. The section also prOVides for the term of office and makes provision for removal and for substitution in case of disability.

Section (b) provides for the automatic review of certain cases and the review of other cases on petition of the accused.

Section (c) prOVides the time limit (30 days) in which an accused must petition for review by the Court of ~tllitary Appeals after the decision of a board of review is rendered.

Section (d) sets forth the issues which may be considered by the Court in various cases and is similar to a cOlnparable provision for boards of revielr unCl~r .Article 66(c). !his section also prOVides that the Court of Military Appeals may take action only with respect to matters of law. Thus, the Court has no authority to weigh eVidence, judge credibility of witnesses, or determine controversial questions of fact.

24

L'rrae American Legion Bill would amend Article 67 so as to give the Court of Military Appeals the same authority as boards of review now have under Article 66(c) with respect to the findings and sentence, namely to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact~7

Section (e) is the statutory authority for the Court of Military Appeals to order rehearings. It provides the same authority for the Court as is provided for boards of review in Article 66(b).

Section (f) has generally the same purpose as Article 66(e) with respect to boards of review.

[The Omnibus Bill would amend section (f) and give 'Ihe Judge Advocate General authority to dismiss the charges whenever the Court of ~lilitary Appeals has ordered a rehearing and he finds a rehearing impracticable~

Section (g) provides that the members of the Court of Military Appeals and the Judge Advocates General (which includes the General Counsel of the Treasury Department) shall meet annually to survey the operation of the Code and repo~ to the Congress and the Secretaries. These persons are generally referred to as the Code Committee.

Article 68. Branch offices.

This article provides for the establishment of branch offices of The Judge Advocate General with distant commands, and the authority to establish boards of revie,., in such branch offices. It f~rther provides that the Assistant Judge Advocate General in charge of such a branch office, and the boards of revie"r therein, are empowered vri th the same functions as The Judge Advocate General and boards of revie"T in the Office of The Judge "~vocate General.

Article 69. Review in the office of The Judge Advocate General.

This article provides for appellate review in the Office of The Judge Advocate General of every general court-martial case in vThich there has been a finding of guilty and a sentence (thus excluding acquittals) where appellate review is not othenlise provided for in Article 66. This article incorporates a comparable provision in Article of War 50.

LThe Omnibus Bill would amend Article 69 and give The Judge Advocate 'General the power to twce corrective action on cases reViewed in his office under this article to the same extent that a board of review may take corrective action on cases reViewed by i t ~7

25

!\rticle 70. Appellate Counsel.

This article is entitely new and is included in the Code in order tllat the accused may be represented on appellate review by a qualified la~r,yer. It provides generally for the appointment of appellate counsel both for the Government and the accused. In addition, it specifies the duties of appellate counsel. It also contains a proviso, in section (d), that the accused may in any event be represented on appellate review by civilian counsel, if provided by the accused.

Article 71. Execut~lon of sentence; s1!spension of sentence.

This article provides the conditions under which various sentences of courts-martial may be adjudged. It is also theauthority for the suspension of courts-martial sentences. Section (a) pertains to sentences extending to death or involving general officers; seotion (b) pertains to sentences of dismissal of an officer or cadet; section (c) pertains to any sentence which includes, unsuspended, a dishonorable discharge or bad conduct discharge or confinement for one year or more; and section (d) pertains to all other court-martial sentences.

The varioUS sections of this article generally follow tile prior Army provisions except that the convening authority under the present Code is now given power to suspend.

[j:he Omnibus Bill would amend section (a) and make the death penalty include total forfeitures by implication~

f£'n.e Omnibus Bill 1'1ould also amend section (d) and allo,. execution of each portion of a sentence, other than i;hat portion of the sentence extending to dismissal of a commissioned officer or a cadet, without secretarial action~

LThe Omnibus Bill ,muld also amend section (b) consistent with the proposed amendment to section (b) so that all court-martial sentences and portions of sentences (excluding death, general officer cases, and dismissal cases) could be ordered executed by the convening authority unless suspended~

Article 12. ~ion of sUspe.!lsion.

This article is new and provides for the procedure which must be had before a sentence of a special court-III8i'tial which incl1,1des a bad conduct discharge, or any general court-martial sentence, may be vacated. This article has recently assumed greater importance in view of several decisions by the Court of l\1ilitary Appeals to the effect that the Ittecbnical suspension ll so long used by the Army may not be vaca.ted Without -a. hearing of the;! type .proVided for by this article.

26

Article 73. Petition for a ne"T trial.

'lhis article provides that an accused may, any time 'l'Titllin one year after approval by the convening authority of a serious court­martial sentence, apply for e. new trial on the grounds of newly dis­covered eVidence or fraud on the court. It also provides who shall act on this petition under certain circumstances. This article is substantially similar to Article of War 53.

LThe Omnibus Bill would amend Article 73 to provide for a two­year period for application of a new trial. The proposed amendment 'uould also allolT e. neyT trial to be ordered on a part of the findings only and would also allow 'lhe Judge Advocate General to talce corrective action upon an application for a new trial by modifYing or vacating the findings and sentence in whole or in part~

Article 74. Remission and suspension.

Under this article the Secretary of a Department may review the sentence of any court-martial. It gives the Secretary clemency and parole powers "Thich gives him ultimate control of sentence uniformity.

Article 72,. Restoration.

This article is new and provides for the restoration of all rights, privileges, and property affected by an executed portion of a court-martial sentence which has been set aside or disapproved. This article is also applicable to new trials and rehearings where the findings or sentence at the second trial are less than the findings or sentence at the first triaJ..

Article 76. Finality of court-martial judf!P1ents.

This article prOVides for the finality of courts-martial judgments after such review as otherwise prOVided by the Code has been completed.

f£'ne American Legion Bill would amend Article 76 and provide that the finality of courts-martial proceedings would also be subject to review by a separation review board~

Articles 77 - 134.

Articles 77-134 are the punitive articles of the Code which set out and define the different offenses over 'tV'hich the Uniform Code confers jurisdiction. The committee which drafted the Uniform Code observed during their studies of the Articles of War and the Articles for the Government of the Navy that, although each defined most of' the so-called military offenses, neither defined aU of such offenses.

27

Moreover, there were some offenses prescribed by each peculiar to the particular service. In addition, each of these former systems of military justice defined some offenses not defined by the other. In general, the civil type crimes were not defined by either the Articles of Har or the Articles for the Government of the Navy. In the case of the krmy, however, the Manual for Courts-Martial, U. S, Army~

~, did spell out or define the majority of the civil offenses. ~e same was true in so far as the Navy was concerned. In this field too, however, there was also some variance between the two systems in de­fining offenses.

The committee which drafted the Code, therefore, examined each offense common to both of the services and tried as closely as possible to use the definition for each particular offense that was common to both services; and to adapt whatever ideas were felt worthwhile from some of the more modern state codes. In addition" there were some definitions needed in the ~itive articles which had theretofore not been present. For example, the Uniform Code defines principals in Article 77, makes provision for lesser included offenses in Article 79, and defines an accessory after the fact in Article 78. In addition, the offense of solicitation is specifically spelt out in Article 82.

~e Omnibus Bill would amend Article 95 to eliminate the present distinction between escape tram custody and escape from cOnfinement...!.?

~e American Legion Bill would amend Article 98 by inserting a specific provision that a failure to deliver offenders to civil authorities, as prOVided for in Article 14 as amended by the American Legion Bill, would be an Offense:..?

LTbe American Legion Bill would amend Article 118 to specifically prOVide that no person may be tried by court-martial for murder committed in the United States in time of peace. See the proposed American Legion amendment to Article 14;]

["The American Legion Bill would amend Article 120 to prOVide that no person may be tried by court-martial for rape committed in the United States in time of peace:..!

Article IJ5. Courts of inquirl'

This article is a combination of the former .Army and Navy pro­Visions respecting courts of inquiry.

28

Section Ca) adopts tormer Navy practice and grants a broader authority to convene courts of inquiry than 'Was formerly the practice in the .Army.

The provision in section (0) for a counsel to assist the court in matters of law, presentation of eVidence, and keeping of the record is ne1".

Section (c), "lhich provides that any person 'Whose conduct is subject to inquiry shall be designated a party, was inserted to allow anyone who was involved in a court of inquiry to intervene in order to protect their rights and reputation.

Sections (d) and (e) providing tor challenges and oaths conform to both the prior Army and Navy practice.

Section (f), by prOViding that witnesses before courts of inquiry 'Will be sUJJJmoned and may testify as provided for courts-martial, has the effect of requiring such witnesses to be sworn. '.!his conforms to the prior Army practice.

Sections (g) and (h), prOViding respectively for JOO.king findings without opinion or recommendations and for keeping and authenticating the record, conform to both the prior Army and Navy practices.

Article 116. Authority to administer oaths and to act as notary.

This article is the authority for certain persons to administer oaths and to exercise generally powers of a notary public •

./.The American Legion Bill 'Would amend Article 136 to prOVide that the la", officer of a special court-martial (proposed in other American Legion amendments) 'Would ha.ve the authority to administer oaths and act as a notary.J

Article 137. Articles to be explained.

'!his article was derived from Article of '''ar 110 and provides that certain articles of the Code be carefully explained to every enlisted person at the time of his entrance on active duty or within six days thereafter. It also provides for subsequent explanation after the completion of six months active duty and for each re-enlistment. It further provides that the text of the Code, and any regulations pre­scribed by the President thereunder, shall be made available to any person on active duty uPQn his request for his personal observation. 'ntis article was derived from Article of Far liO which required that certain articles be read. '!his change trom "read" to "exp1ai.11" was made because it was telt that a careful explanation would be of more value than a mere reading.

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Article 138. .£2!.!!Elaints of wrongs.

This article provides a procedure whereby any member of the armed forces who believes himself 'Wl'onged by his commanding officer may make complaint to the officer exercising general court-martial jurisdiction7 which officer must examine the cOllij)laint and take such measures as the circumstances may justify. This article is adapted from Article of Har21.

Article 1;32. Redress of ilh1uries to property_

This article is a redraft of Article of Har 105, with changes, to permit the Secretary of the Department to prescribe the procedures for redress of injuries to property by members of the armed forces. '!he Secretary of the Army has implemented this article by the promulgation of AruIy Regulation . ~5-Bo.

Article 140. Deleeation b;r the President.

This article provides that the President may delegate any authority vested in him under this CQde and may provide for the subdelegation of any authority.

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~"HE SECRETARY OF DEFENSE

VASIIINGTON

11 December 1958

Dear Mr. Speaker:

There is forvTarded herewith a draft of legislation liTo amend title 10, United States Code, as relates to the Uniform Code of Military Justicell

, together with a sectional analysis thereof.

This proposal is a part of the Department of Defense Legislative Program for 1959, and the Bureau of the Budget has advised that there is no object:i.on to its transmittal to Congress for consideration. The Department of the Air Force has been designated .as the representative of the Department ot' Defense for this legislation., It is recommended that this proposal be enacted by Congress.

PurJ2ose_of the Legislation

The purpose of this proposed legislation is to improve the adminis­tration of milit~ justice in the armed forces. This proposal is based on recommendations by the Court of Military Appeals, the Judge Advocates General of the Army, Navy and Air Force, and the General Counsel of the Department of the Treasury, made at previous annual meetings as re­quired by section 867(g) of title 10, United States Cod,e. In essence, this proposal is designed to eliminate some of the procedural -difficulties and delays which have arisen under the Uniform Code of Mi-lit.ary Justice since May 31, 1951, and to provide for more prompt and more efficient adm:i.n~st.ration ot m;i.litary justice, bot,h from the standpoint of the individual and the Government.

The principal features of the proposed legislation are as follows:

1. Single-officer courts. The proposed legislation, which is based upon Rule 23 of the Federal Rules of Criminal Procedure 1 would pel"IlJ.i t an accused to request and, if the convening authority consents thereto, be tried before a single qualified officer, instead of a multiple-member special court-martial. The adoption of such a procedure will result in a reduction of both time and manpower normally expended in trials by special courts-mart:tal. The rights of the accused in such cases are protected by the requirement that the officer acting as a special court­martial have the basic qualifications Of a law officer under article 26(a) and that he be certified as qualified for that duty by the Judge Advocate General.

2. Records of trial. At tile present time, the use of a summarized record of'trial is permitted in trials by SPecial courts-martial when the

accused is acquitted of all charges and specifications or when the sentence does not extend to a bad-conduct discharge. On the other hand, all records of trial by general courts-martial are complete verbatim accounts of the proceedings thereof', even though the sentence is one which, if adjudged by a special court-martial, could be summarized. '!he proposed bill would correct this sit~ation by providing for a complete verbatim record in only those cases in which sentence adjudged includes a bad­conduct discharge or is more than that which could be adjudged by a special court-martial. All other records of trial would contain such matter as may be required by regulations prescr:Lbed by the President.

3. Rev:l.ew of recoFds of trial. The present law requires all general court-martial cases to be fOI"l-larded to the JuQ.ge Advocate General even though the sentence of the court is such that, if adjudged bye. special court-martial, ti1e record of the special court-martial would not have been so forwarded. TIle proposed bill corrects tllis S;i.tl.lat:i,on. ;rt p~ovides that general court-martial cases in which the sentence as approved does not include a bad-conduct discharge or does not exceed a sentence that could have been adjudged by a special court-martial sl:1all be transmitted and disposed of in the same manner as similar special court-raarti~ cases.

The present law requires that all sentences extending to a ]?tuoitiye discharge or confinement for one year or more be reviewed by a board of review. The proposed legislation prOVides that cases nmT required to be reViewed by a board of reView only because the sentence includes a punitive d;1.scharge or confinement for one year or more vTill be examined in the office of the Judge Advocate General in accordance with article 69, rather than by a board of revie"", if the accused :pleaded guilty and if he stated 1n writing that he does not desire review by a board of review. The enactment of ~1.is provision wOUld materially lessen the number of cases Y1hich need to be reviewed by boards of review and will thereby diminish the over-all time required to process court-martial cases. As this procedure upon revievr would be employed only in thQse· cases where the accused has pleaded guilty, it is believed that his sub­stantial rights will not be prejud.iced thereby.

The present law requires the Judge Advocate General to refer article 69 Cases to a boa,rd of revie,., for corrective action when he finds all or part of the findings or sentence incorrect in law or fact. In a great many cases, the irregularities concerned involve nu;ttters well settled in the lavr, and in those cases the board of review's action amounts to no more than the application of thosewell~settledprinciples. This situation results in an unnecessary burden on the bo~ds of review and unduly increases the time required to process court-martial cases. To eliminate this unnecessary reference to a board of review, the proposed legislation authorizes the Judge Advocate General to correct the irregularity or injustice, vesting in him the same povrers and autbority with respect to those cases that aboard of review has. It 'Will be noted that the Judge Advocate GeneraJ.;,re~insauthorized to refer tmy

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article 69 case to a board or review in his discret:i.on, and it is required that any finding or sentence incorrect in la,., or in fact be corrected either by a board of review or by the JUdge Advocate General.

4. Po~r6 of the JudGe Mvoc;ate General. 'Ihe proposed legislation autho:dzes the Judge Advocate General to dismiss the Gharges when the Court of Mili'tary Appeals or the board of review orders a rehearing which the Judge .Advocate General finds impracticable. It is believed that the Judge Advocate Genel"al is, in many cases, in the Q~st pos1tioil to dismiss the charges himself or to determine whether or not a rehearing is im­practicable. Further, the administrative necessity or fOT''1arding the record to the convening authority would, in manY cases, be eliminated.

5. Execution of~~ntence_~. Currently, about 407 days elapse be­tween the date an accused is tried by court-martial and the date his sentence is ordered executed after review by the 'United States Court of

. Military Appeals. As a result, many prisoners complete con:f'inement before their cases have been completely revie'tved. Further, since an unsentenceq. prisoner is not subject to the same treatment asa sentenced prisoner, the administration of confinement faeil:!. ties is unduly complicated, In some instances, delays in completion of the required review have led to complex administrative problems and loss of morale. Consequently, the proposed legislation p~ovides that a convenins autho~ity may order executed all portions of a sentence except that portion involving dismissal, dishono~able or bad-conduct discharge, or affecting a general or flag officer, tl1US eliminating the differences between sentenced and un­sentenced prisoners. No sentence extending to death may be executed until approved by the President, although the proposed legislation will remove an anomalous result under the present code by providing that an accused sentenced to death forfeits all pay and allowances, and that the for­feiture may be made effective on the date tile sentence is approved by the convening authority.

6. Nevr Trial. To better protect the rights of' an accused, the pro­posed legislation extends the tim.e vTit..1.in ,.,hiGh an accused may petition for a new trial to two years from the date the convening authority approves the sentence. Further, the bOa.l:'d of review, the United States Court of Military Appeals, and the Judge Advocate General would be permitted to grant more comprehensive relief than is now possible.

7. Y9tinss and rulings. The proposed bill prOVides that a law officer shall rule 'With finality upon a motion for a finding of not guilty. It is anomalous to allOW the lay members of a court-martial to overrule the law officer on a question which :l.s purely an issue of law.

8. Punitive articles. The present code does not provide specific statutory authority··-tol:'the prosecution of bad-check offenses. The proposed legislationa.dds an additiopal puPitive article which contains provisions similar to the bad-chec~ statutes Of the District of Columbia

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and the State of Missouri, including a provlslon that a failure to pay the holder of a bad check the amount due within five days shall be prima facie evidence of an intent to defraud or deceive. One of the tiifficulties arising under existing law is the necessity to prosecute bad-check offenses under one of three separate articles (121, 133 or 134), none of whic~ may be considered as a bad-check statute~ Because of technical difficulties that arise as a result of the unfortunate pleading of the wrong article, an obviously guilty person sonetimes escapes punishment. There are many difficulties inherent in obtaining a conviction of an accused for a bad-check offense vnthout proof of specicfic intent. Because of this, the proposed legislation is desirable to provide specific statutory authority for the prosecution of bad-check offenses.

9. Nonjudicial punishment. Good military discipline requires that a commanding offic~~'given greater authority in imposing nonjudicial punishment. Consequently, the proposed legislation provides that a commanding officer in a grade of major or lieutenant commander or above may confine an enlisted member of his command for a period of not more than seven days, or impose a forfeiture of one-half of one month's pay. Under article 15, officers may be punished for minor offenses, such as traffic violations, by imposition of forfeitures, and they are thereafter not handicapped professionally by a trial by court-martial. However, in order to achieve an efrective monetary punishment for enlisted members in similar cases, it is necessary to resort to a trial by court-martial, resulting in a permanent black mark on the enlisted member's record in the form of a conviction by court-martial. The change contemplated by the proposed legislation would permit prompt and effective disposition of such minor offenses. In addition, a commanding officer exercising general court-martial jurisdiction may impose on an officer or warrant officer of his command forfeiture of one-half of his pay for two months, instead of one month as now provided in the code. The one month limitation has proved unsatisfactory to commanders in the field and is not cured by the fact that an officer may be tried by a special court-martial. An officer's present and future value within his command is seriously and permanently impaired by the publicity attendant to tiial by court-martial. vllien such an event occurs, prompt transfer of the officer after trial is imperative, regardless of the outcome. Such a procedure is costly in time, mon.ey and manpower. It is believed to be essential that commanding officers retain their present power to try officers by special court­martial as exceptional circumstances warrant. However, it is considered desirable to increase the punitive powers of article i5 so that an adequate punishment can be imposed upon an officer for a relatively minor offense.

10. Miscellan~. To facilitate administration of confinemenil;; facilities under the United Nations or other allied commands, the proposed legislation authorizes the confinement, in United States confinement facilities, of members of the armed forces of the United States with the members of the armed forces of friendly foreign nations.

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In addition, the proposed legislation makes other changes in the present code of a technical nature, designed generally to improve the administration of military justice within the framework of the existing code.

Cost and Budget Data

The enactment of this proposal will cause no increase in the budgetary requirements for the Department of Defense but will result in economies in the utili~ation of manpower.

Sincerely yours,

/s/

Donald A. Quarles Deputy Secretary of Defense

Inclosures

Honorable Sam Rayburn

Speaker of the House of Representatives

AN IDENTICAL LETTER HAS BEEN PREPARED FOR TBE PRESIDENT OF THE SENATE.

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A BILL

To amend title 10, United States Code, as relates to the Uniform Code of Military Justice

1 Be it enacted by the Senate and House of Repre­

2 sentatives of th~ Un~ted States of America in Congress

3 assembled, That title 10, United States Code, is amended

4 as follows:

5 (1) Section 801 is amended by adding the

6 following new clause at the end thereof:

7 11(13) 'Convening authority' includes, in addition

8 to the person who convened the court, a

9 commissioned officer commanding for the time

10 being, a successor in command, or ~y officer

11 exercising general court-martial juris~

12 diction. "

13 (2) Section 812 is amended to read as follows:

14 II § 812. Art. 12. Confinement with enemy

15 prisoners prohibited

16 "No member of the armed forces of the

17 United States may be placed in confinement

18 in immediate association with enemy prisoners

19 or other foreign nationals not members of

20 the armed forces of the United States, except

21 that a member of the armed fOl·ces of the

22 United States may be confined in United

1 States confinement facilities with

2 members of the armed forces of friendly

3 foreign nations."

4 (3) Section 815 is amended

5 (A) by striking out in subsection (a)(l)(C)

6 the words "one month's pay" and inserting

7 the words "his pay per month for a period

8 of not more than two months" in place thereof;

9 (B) by striking out at the end of subsection

10 (a)(2)(E) the word "or";

11 (C) by striking out the period at the end of

12 subsection (a)(2)(F) and inserting a semicolon

13 in place thereof; and

14 (D) by adding the fallowing new clauses at the

15 end of subsection (a)(2):

16 "(G) if imposed by an officer in the

17 grade of major or lieutenant commander

18 or above, forfeiture of not more thap

19 one-half of one month's payj or

20 (H) if imposed by an officer in the

2l grade of major or lieutenant commander or

22 above, confinement for not more than seven

23 consecutive days."

24 (4) Section 816 is amended by striking out the

25 word "j and" in clause (2) and inserting the

26 words "or only of a law off;Lqer who is certified

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to be qualified for duty as a single­

officer special court-martial by the Judge

Advocate General of the armed force of which

he is a member if, before the court is convened,

the accused, knowing the identity of the law

officer, and upon adivce of counsel, requests

in writing a court composed only Of a law

officer and the convening authority has

consented thereto; and ll in place ther'$of.

(5) Sections 822(b) and 823(b) are each

amended to read as follotTs:

lI(b) If any person described in sub­

section (a), except the President of the

United States, is an accuser, the court

must be convened by a competent authority

not subordinate in command or grade to the

accuser, and may in any case be convened

by a superior competent authority.1I

(6) Section 825(a) is amended by adding the

following new sentence at the end thereof:

IIHowever, to be eligible for appointment

as a single-officer special court-martial,

the officer must have the qualifications

specified for a latT otficer in section 826(a)

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1 of this title (article 26(a» and must be

2 certified to be qualified for duty as a

3 single-officer special court-martial by

4 the Judge Advocate General of the armed

force of which he is a member."

6 (7) Section 837 is amended by striking out in

7 the first sentence thereof the words "nor any

8 other commanding officer ll and inserting the words

9 "or any other commanding officer, or any officer

serving on the staffs thereof" in place thereof.

11 (8) Section 84l(b) is amended by inserting

12 after the words "law officer" the vlords "and

13 an officer appointed as a single-officer special

14 court-martial" •

(9) Section 851 is amended-­

16 (A) by str:Lld.ng out in the second sentence

17 of subsection (b) the \vords "a motion for

18 a finding of not guilty, or";

19 (B) by inserting in the third sentence of

subsection (b) after the word "trial" the

2l words "except a ruling on a motion for a

22 finding of not guilty that was granted11 ;

23 and

24 (C) b;}T adding the following new subsection:

ned) Subsections (a)" (b)" and (c) of

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this section do not apply to a

single-officer special court­

martial. An officer who is appointed

as a single-officer special court­

martial shall determine all questions

of law and fact arising during the

trial and" if the accused is con­

Victed" adjudge and appropriate

sentence."

(10) Section 854 is amended to read as follows:

t1§ 854. Art. 54. Record of trial

"(a) Each court-martial shall make a

separate record of the proceedings of the

trial of each case brought before it. A

record of the proceedings of a trial in

which the sentence adjudged includes a

bad-conduct discharge or is more than that

't'1'hich could be adjudged by a special court­

martial shall contain a complete verbatim

account of the proceedings and testimony

before the court" and shall be authenti ­

cated in such m~er as the President

may, by regulation" prescribe.

All other records of trial shall contain

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1 such matter and be authenticated in

2 such manner as the President may,

3 by regulation, prescribe.

4 11 (1,) A. copy of the record of the

5 proceedings of each general and special

6 court-martial shall be given to the accused

7 as soon as authenticated. If a verbatim

8 record of trial by general court-martial is

9 not required by subsection (a), the accused

10 may buy such a record under such regulations

11 as the President may prescribe.

12 (11) Section 857 is amended by adding the

13 following new sentence at the end of sub­

14 section (a):

15 "A sentence to dea.th includes forfeiture

16 of all pay and allowances and dishonorable

11 discharge. The forfeiture may apply to

18 all pay and allowances becoming due qn or

19 after the date on Which the sentence is approved

20 by the convening authority."

21 (12) Section 865 is amended-­

22 (A) by amending subsection (a) to read

23 as fo1101vs:

24 ll(a) 1'lhen the convening authorit;r has

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taken final action in a general

court-martial case and the sentence

approved by him includes a bad­

conduct discharge or is more than that

vhich could have been adjudged by a

special court-martial., he shall send

the entire record, including his action

thereon and. the opinion of the

staff judge advocate or legal officer,

to the appropriate Judge Advocate

General. II,;

(B) by striking out in subsection (b) the

i'Tords lito be revievled by a board of reViei.,1I

wherever they ~ppear therein; and

(C) by amending subsection (c) to reaa'as

folloVls:

lI(e) All other records of trial by

court-mE:.rtial shall be re-viei·red by-­

(1) a judge advocate of the .A:r:rrry

or Air Force;

(2) an Officer of the Navy or

l~ine Corps on active duty who

is a member of the bar of a Federal

court or of the highest court of a

State; Qr

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(3) in the Coast Guard, or the

Department of the Treasury, a

law specialist or member of the

bar of a Federal court or of the

highest court of a State. 1I

(13) Section 866 is amended-­

(A) by amending subsection (b) to read

as follows:

neb) The Judge Advocate General shall

refer to a board of review each record

of trial by court-martial in which t...~e

approved sentence-­

(1) extends to death;

(2) affects a general or flag

officer;

(3) extends to the dismissal of a

commissioned officer or a cadet

or midshipman; or

(4) includes a dishonorable or bad­

conduct discharge, or confinement

for one year or more, unless the

accused pleaded guilty to each

offense of which he "t'las found

guiJ.ty and has stated in writing

after the convening authority

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acted in his case, that he

does not desire review by a

board of revi~w. II j and

(B) by amending subsection (e) -to read as

follows:

"(e) The Judge Advocate General may

dismiss the charges whenever the board

of review has ordered a rehearing and

he finds a rehearing impracticable.

otherwise, the Judge Advocate General

shall, unless there is to be ~~ther

action by the President, the Secretary

concerned, or the Court of Military

Appeals, instruct the convening

authority to take action in accordaJ.lce

with the decision of the board of

review. If the board of review has

ordered a rehearing and tile convening

authority finds a rehearing impracti ­

cable, he may disntiss the charges."

(14) Section 867 is amended 'by inser-ting the

follo\n~ new sentence after the first

sentence of subsection (f):

"The Judge Advocate General may dismiss

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1 the charges whenever the Court of

2 Military Appeals has ordered a rehe~ing

3 and he finds a rehearing impra.cticable. 1I

4 (15) Section 869 is amended to read as follows:

II§ 869. Art 69. Review in the ottice of the

6 Judge Advocate General

7 "Every record of trial by court-martial

8 forwarded to the Judge Advocate General

9 under section 865 of this title (article 65),

the appellate review of which is not other­

11 wise provided for by section 865 or 866 of

12 this title (article 65 or 66), shall be

13 examined in the offiCe of the Judge Advocate

ll~ General. If any part of the findings or

sentence is found unsupported in law, the

16 Judge Advocate General shall either refer

17 the record to a board of review for review

18 under section 866 of this title (article 66)

19 or talte such action in the case as a board

of review may take under section 866(c) and (d)

2l of this title (article 66(c) and (d». If

22 the record is reViewed by a board Of review,

23 there may be no further review by the Court

24 of Military Appeals, except under section

867(b)(2) of' this title (&rticle 67(b)(2»."

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(17) Section 873 is amended~-

(A) by striking out in the first sentence

after the word "wi.thin" the words lIone

year" and inserting words "two years"

in place thereof; and

(B) by striking out the last sentence and

inserting the following in place thereof:

"The board of review or the Court of

Military Appeals, as the case m.ay be,

shall determine whether a new trial,

in whole or in part, should be granted

or shall t~{e appropriate action under

section 866 or 867 of this title

(article 66 or 61), respectively.

OthenTise, the Judge Advocate General

may grant a neioT trial in ioThole or in

part or may vacate or modify the

findings and sentence in whole or in

part. II

(18) Section 895 is amended by striking out the

words "custody or confinement" and inserting the

words "physical restraintla"rfully imposed" in

place thereof.

(19) SUbchapter X of chapter 41 is amended-­

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payment of which is refused by the drawee

because of insufficient funds ot the maker or

drawer in the drawee's possession or control,

is prima facie evidence of his intent to de­

fraud or deceive and of his knowledge of

insuffic:tent funds in, or credit with, that

bank or other depositoryt unless the maker or

drawer paJ-"S the holder the amount due within

five days after receiving notice, orally o~ in

writing" that the checlc, draft, or order was

not paid on presentment. In this section the

"'ord 'credit t means an arrangement or under­

standing, express or implied, with the bank

or other depository for the payment of,that

check, draft, Or order."; and

(B) by inserting the following new

item in the anaJ.ysis:

11923a. 123a. Making, dra"ring, or

uttering check, draft.

or order "71thout

sufficient funds. ll

SEC. 2. This Act becomes effective on the first

day of the tenth month follovring the month in which it is

enacted.

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SEC1'IONAL ANALYSIS

of a bill

To amend title 10, United states Code, as relates to the Uniform Code of Vdlitary Justice.

Section 1(1) amends article 1 by defining the term IIconvening authorityll. ­

Section 1(?J. amends article 12 to provide that a member of an armed force of the United States may be confined in United States con­finement facilities with members of the armed forces of friendly foreign nations.

Section 1(3) amen~article 15 to authorize a commanding officer exercising general court-martial jurisdiction to impose upon an officer of his command forfeiture of one-half of his pay per month for a period of two months. It also authorizes a commanding Officer in a grade of major or lieutenant cODjDlS.pder or above to inryose upon an enlisted man of his cODjDlS.nd for·fei ture of pot more than one-half of one month I spay or confinement for not more than sevep consecutive days.

Section 1(4) amends article 16 to prOVide that a special court­martial shall consist of only a law officer if the accused, before the court is convened, so requests in writing and the convening authority consents thereto. However, before he makes such a request, the accused is entitled to know the identity of the la't{ officer and to have the ad­vice of counsel.

§ection 1(2) amends articles 22(0) and 23(b) to prOVide that, except for the president, a convening authority not subordinate in com­mand or grade to tlle accuser shall be Ilcompetent authority" within the meaning thereof, and that a court may, in any case, be convened by superior competent authority when considered deSirable by him.

Section 1(6) amends article 25(a) to provide that the officer act­ing as a special court-martial must have the qualifications specified for a law officer in article 26(a) and, in addition, must be certified to be qualified for duty as a single-officer special court-martial by the Judge Advocate General.

Section 1(7) extends the provisions of art~cle 37 to include staff officers serving convening authorities and commanding officers.

Section 1(8) amends article 4l(b) to prOVide that a single-officer special court-martial may be challenged only for cause.

Section 1(9) amends artiCle 5l to prOVide that the law otficer ehall rul,e vl'ith finality on a motion for a finding of not guilty~ If such a

motion is granted, however, he may not later change that ruling. It also provides that an officer acting as a special court-martial shall deter­mine all questions of' la"., and fact arising during the trial and, if the accused is convicted, adjudge an appropr5ate sentence.

§.ecti9,n 1(1Q.L amends article 54 by requiring each court-martial to mwce a separate record of the proceedings of the trial in each case brought before it. In each case where the sentence adjudged includes a bad-conduct discharge or is more than that which coUld be adjudged by a special court-martial, a verbatim account of the proceedings and testimony must be prepared and authenticated in accordance with regu­lations prescribed by the PreSident. It a.J.so prOVides that if a verbatim account is not reqUired, the accused may buy such a record.

~.ion l(U) amends article 57(a) to prOVide that an accused sen­tenced to death forfeits all pay and allowances apd that the forfeiture may apply to all pay and allowances becoming due on or after the date the sentence is approved by the convening authori"ty.

~ction 1(12) amends article 65 to require the convening authority, when he has taken final action, to send to the appropriate Judge Advoca"te General each record of trial in which the sentence, as approved by him, inCludes a bad-conduct discharge or is more than that which could have been adjudged by a special court-mal'tial. It also deletes language implying that all records of trial by special court-martial forwarded to the Judge Advocate General under that section must be reviewed by a board of review. It also prOVides for the review and disposition Of all records of trial not otherwise prOVided for in article 65(a) and (b) •

Section (l;j) amends al'ticle 66 to provide that a record of trial, which wouid otherwise be reviewed by a board of reView because the sen­tence includes a dishonorable or bad.. conduct discharge or confinement tor one year or more, need not be reviewed by a board of review i.f the accused pleaded guilty to each offense of which he was found guilty and if he stated in v~iting after the convening authority acted in his case that he does not desire review· by a board of review. It also authorizes the Judge Advocate Genera]. to dismiss the Charges ".,henever he finds that a rehearing ordered by a board of review is impracticable.

?ection l(l~ amends article 67(f) to authorize the Judge Advocate General to dismiss the charges vlhenever he finds that a rehearing ordered by the Court of Military Appeals in imDracticable.

Section 1(15) amends article 69 to provide that every record for­warded to the Judge Advoca.te General und~r article 651 the appellate re­view for ,.,hich is not otherwise :provided by article 65 or 66, shall be

examined in the office of the Judge Advocate General. He may refer such a record to a board of revie'-T or he may take such action in the case as a board of revie'T may under article 66(c) and (d). If the record is reviewed by a board of review, there will be no further re­view by the Court of Military Appeals except under article 67(b)(2). '!he effect of this amendment is to require examination in the office of the Judge Advocate General of those records of trial in which the sentence includes a dishonorable or bad-conduct discharge or con­finement for one year or more '\-Thich need not be reviewed by a board of review because the accused pleaded guilty.

Sectj~9~1(16) amends article 71 to provide that all portions of sentences of a court-martial may be ordered executed by the convening authority when approved by him, e~ccept tllat portion of the sentence involving death, dismissal, or dishonorable or bad-conduct diseharge or affecting a general or flag officer. It describes those authori­ties which must approve a sentence before it may be executed. The parenthetical phrase "other than a general or flag o:fficer ll is omitted as surplusage in view of the express provision of article 7l(a).

Section, 1~17) amends article 73 to extend the time within which the accused may petition for a new trial to two years from the date the convening authority approves the sentence, and to provide that the Court of Military Appeals and the board of review may, in addition to determining whether a new trial in whole or in part Shquld be granted, twce appropriate action under article 66 or article 67, respectively. Further, the JUdge Advocate General is authorized to grant a new trial in whole or in part, or to vacate or modify the finding~, and the sen~ tence in whole or in part.

Section 1(18) amends article 95 to remove all distinction be~leen confinement and custody.

Sect~on 1(19) inserts an additional punitive article similar to the bad-check statutes of the District of Columbia (title 2~, D. C. Code, sec. 1410) and the State of ~lissouri (Revised Statutes of Missouri 561.460, 561.470, 561.480).

Section 2 provides that these amendments become effective on the first day of the tenth month folloWing the month in which enacted.

3

14'1NElC C.

DEPARTMENT OF THE AIR FORCE

vlashlngton

Office of the Secretar,y April 14, 1959

Dear }~. Chairman:

I refer to your request for the views of the Department of Defense on H.R. 3455, S6th Congress, a bill liTo amend title 10, United States Code, in order to improve the administration 9f justice and discipline in the armed forces, and for other purposes. II The Secrett;l.ry of Defem~e has dele­gated to the Department of the Air Force the responsibility for expressing the views of the Department. of Defense thereon.

H.R. 3455 proposes certain amendments to the Uniform Code of 1111i­tary Justice (10 U.S.C. SOl et seq.) apparently designed to accomplish two basic objectives, i.e., (1) to insure that every court-martial, regard­less of type, has a qualified law ofticer thereon and that an accused has the right to services of counsel; and (2) the creation of an atnlosphere completely free from@;)i possibility ot command control.

'1'0 achieve the above objectives, the bill would require the appoint­ment of a qualified law o!ficer to all special courts-martial and divest such courts of authority to adjudge punitive discharge~; require offieers appointed as summary courts-martial to be qUalified for deta!l as law officers and establish an accuaedts right to militar.y counsel before such courts; abolish the "president of the court ll concept and vest his present functions in the law officer; empower the law officer to 'rule finally on all interlocutory questions except insanity; remove the Judge Advocates General from the oommand of their respective Chiefs of Staff ~nd place them under the direct control of the General Counsel of the Department of Defense; exc~pt for members of boards of review place all judge advocate officers under the direct command control of their respective Judge Advocates General; provide for separate promotion lists, judge advocate-composed promotion boards, and distinctive insignia for all judge advocate officers; provide that all effectiveness reports on jUdge advocate officers, except for those serving on boards of review, be renderen b,y the Judge Advocates General; remove boards of review from the offices of the Judge Advocates Gen~ral and place them under the Secretar,y of Defense with a proviso that the members thereof be rated for effectiveness b;,J" the Secretary; provide that the armed forces be divested of jurisdiction to try offenses pro­scribed by the Uniform Code of Military Justice, articles 1IS-1,32, in time of peace, if civilian authorities request delivetY of the accused for trial therefor; complete2y diVest the armed forces of jurisdiction to try murder and ra~ offenses; committed in tim~ of peace in the United States, by courts...ma.rtia,l; vest all pr~edural courts""lIl8rtial rule"'DJaking powers in the United State~ Court of N!l,1tary Appeals; and empower t~e United States Court ot ~alitary Appeals to determine coptroverteq que~tions of fact.

The Department of Defense is generally opposed to H.R. 3455.

The principle that law officers be appointed to all courts-martial and that accused persons before all courts-martial be afforded the right of counsel is highly impractical. During fiscal year 1955, a grand total of about 159,646 trials by special and summary courts-martial were held by the services, and it would be ma.nifestly impossible, under current or reusonably expocted manning in the foreseeable future, to provide personnel, qualifiod as law officers, in the nUmbors which would be reqUired. Spocifieo.lly, the Navy could not assign a qualified law offi­cer to OV0ry ship; <.1.ocordingly, commanders of offenders whoso misconduot warrants more than non-judicial punishment would be faced with the impossiblo alternativQ of greatly dolaying tho proceedings or of completely foregoing appropriuto disciplinarJ action. Tho provision allowing an accused the right of representation by counsel before a summary court­martial can be reasonably expected to result in routine requests for such oounsel by each accusod facing trial by tha.t tribuno.l. In fairness to the Government, therefore, u tr~l counsel would have to be appointed in such cases, thus inoreasing the alreaqy ~ntolero.ble manpower burden. ObViously, if tho term "counsel" is interprotud to noan judge advocate (lawyer) personnel (and the Court of Military Appeals has so inter­preted it), the manpower burden would be stillfurthor magnified. Attecpted complianco with those prOVisions, utilizing presently available law officer and judge advoca.to manpower resources, would be oostly, totally unsatis­faotory, and cause gr0at delaYs in trials with r0sultantly adverse effects upon oornle.

No objection is interpos0d to extonding the pOW0rs of the law officer and releguting the presidont of tho court-nurt~al to the position of "senior nenbertt if theso provisions of the bill are linitod to general courts~~ti4l only. HowGvor, further lioiting the already soverely circunscribed powers of tho president of a. court and divesting the ranking nenber of that honorary dosignation would not substantially enhance the position of tho law officer. Those provisions aroopposed insofa.r as they apply to trials by special courts~lartial duo to the basic objection, stated above, to including a luw officer on that court.

The provisions of tho bill which w0uld p~ohibit sontences to punitive (bad conduct) discharges Qy special courts-~rtial~ und allied oinor pro­visions relating to the foro und disposition of that court's record of trbl, represGnt on unwarra.nted curtuilnent of the court...nurtiul's dis­ciplinary powers. Congressioml heurings:m tho Uniforn Code of Military Justice, article 19 (10 U.S.C. 819), have hitherto established the absolute necessity for the punltiv8 dischurgo authority of special courts-ourtiul, aspecially in the ca.se of the Navy, and that urgent necessity still exists. Further, the effect of a punitive discharge adjudged by special courts­nartial upon ve'teruns' bonefits DfJ.y bo substnntia.lly less than in the case of a general court-marti~lrs sentoncG to the SUQ8 punitive discharge; thus, under tho presont syston, cortnin cases warranting a sentence to a punitive discharge, bu,t not the side effects of grunter deprivation ot veterans t

benefits, may be disposod of noru econooicn11y, und ooro beneficially to the a.ccusod, by referral to special courts-narti:ll for trt.ll. ElL"1ina.­tion of this dual and real benofit, accordingly, is resisted. Although the )~r~ does not peroit lllposltion of ba.d conduct discharges by special courts-nartin1 (throU$h non-authorization of oourt reporters and verbutin rocords of trial), it is not opposed to the continued existenco of thr.t authority in the Uniforo Code of Military Justice ims.quch as the othor services have a definite need for such a.uthority.

The provisions of the bill designed to roorganize, realign, and reassign tho Judgo Adv0cutes Gunernl, thoir respective departnents, and the systeo of ra.ting and assigning subordinate judge advocate officers, apparently arc based upon the assuoption that "cOr:JI:land control" exists over courts-nartbl proceedings. This c.ssuoption is without founcution in fact; according~, such provisions of the bill as are keyed to it and calculated to olioinate so-called "conrnnd cantrell' arc unnecessary and inappropriate. It is noted that these provisions would allow tho Secretary concerned to prescribe the duties of the JU(~go Ac:vocn,te Genornl of that armed. forco; yet, the JUdge Advocatos Geno:ral wO'ijlc. be under the direct control of c.nd responsible to thoJ Ge:noral C'YQ.nsol 'Jf the Depart­nent of Defonse. Those provisions, of course, are inconsistont and unworkable since it is nxiomtic tha.t one cannot servo two nnsters. The provisions of the bill which would require tho Jucgo Advocates General to rate suborc.inate judgo advocato ·)f:ricers for efficiency appears to bo prenised upon tho assuoption that judge advocate officers in tho fiolc. perforn nilitary justice functions only. This c.ss't1f.1ption is unfouncod s!nce field jUdge adv0cc.te officers perforn nLi~y and varied functions for their coonan1ors which urc not directly related to 8ilit~ry

justicemtters. Such being the casu, the Judge Advoc:.l.tes Genorul could not p::lssibly b.:: awaro of all the functions perfornec1 ane: coul·i not, in fairness to 0.11 concernerl, properly discharge these rating require­nents if they aru iDposec~ upon then. Generally, the apparent desire to reorganize the structure of the Juc.go A(~v'Jcate GonoraJ. dcpartnents ignores the inportant fact tha.t the respective Ju:.1ge Advocates General perform a creat runy c1utios not connected with ilUitary justice. Further, denying the Judge Advocates General the right to appoint board of review m.emoors would undul:l restrict their as~ignnent authority, control of personnel, and seriously iopuir, if not prohibit, their ability t8 perforn their stututory duty, i.~., the aililini~trntion of nilitar; justice within tho respective arced forces.

The draft bill provides that tho rules of procedure .~y be pre­scribed by the Court of Military Appools; that the rules of procedure shall apply tho principlos of law nne rules of evidonce applicable to the trial of crioinal Cases in tho Unitod States District Court for the District ofCo1unbia; a.nd that, with certain exceptions, all questions of evidence shull be decided in accorc1n.pce with the rules applied in the trial ofcrioino.l cases in tho Unitecl States District Courts. Substantive princi­ples of military la.w have evolved over Po poriod of years fron rdlitary

3.

custoD, experience, and tho goneral principles applied by Federal courts everywhere. Adoption of thoso rules nnd concepts applicable only to the District of Colunbia would Doan abanc1:Jnnont of tL~8-testO(: thoorios in favor of concepts designod to fit the neo·,ls of one srmll enclave. A single example is the insanity test adopted in the District in United States v. ~~, 214 F. 2d 862 (App. D. C., 1954), which has been rejected by the United States Court of Military Appeals and by the appellate benches of alrlost every state in the Nation. It would. seen far better to leave tho drafters of rules of procedure unfettered by predeter~inod

concepts of a single jurisdiction anc to insist only that thoy be GUidod insofar as practicable by those principles applicable to Federal prosecu­tions generally. The previsions relating to civilian rulos of evidence do not always fit the nilitary situation. For exanple, the Federal law relating to searches and seizures is ill-adapted to the invGstigation of crine in overseas areas whore there are no United States courts or conaissioners fron whon warrants my be obtaine:l. CO:lsidor also the effect upon the services of the rule excluding confessions becauso of unduly dolayed arraignocnt (I1l11ory v. Unitod States, 354 U. S. 499 (1957); McNabb v. United States, 318 U.S. 332 (1943)). Congress has recognized this need for certain deviations fron the Federal rul0s, o.nd it nllowed therefor by provicing that tho President could apply the principles or law and rules of evidence used in the United States district courts only "So far as he considers practicable." Further, this would constituto an unwarranted and unauthorized invasion of tho constitutional authority of the President as CC~JDunder-in-Chief of the arned f0rces. Under the present systen, the United States Court of I~litary Appe~ls is in a position to express its opinion to the Prosident with respect to his regulation-naking authority and, further, the Court of Military Appeals ultimtely judicially detorninos whethor they are legally consistent with the Uniforn Code of lulitary Justice. The provisions of the bill Which would nuthori~e tho Unitod Statos Court of Military Appeals to judBe the credibility of witnosses and cotarnine controvorted questions of fact would grant tho court powers not usually oxercised by Dest appellate courts, including the United States Supreue Court. Previous hearings on sinilar lecislative proposals havo rosulted in rejoction of this idea, and there is no indication that the Court itself cosires this authority.

The inflexible requireneIlt in the bill for the surrenc.er of nilitary personnel in the United States for trial by civil courts in all cases in which requests therefor are mde, night well result in niscarriages of justice. There lJay be cases in which servicenen should not be relollsed to civilian authorities for good and sufficient reasons. Further, experience has shown that there ure cases in which nili~ary jurisdiction is certain and a particular civilian courtls j~ris~iction questionable9 In addition, the bill ienoros fiscal aspects, inclwlinc pay, line-or-duty status, c.1eath eratuitic:Js, etc., of servicerwn who Day ;)e beld for long periods of tiJo by civilidn authoritiGs. This would present nany problens concerning troop utili~ation, particular~T in the case of servicemen

who nay have been plncc~ uncer bond by a civil court or agency. In defense of the present system, which c0ntonplatos close cocperntiJn between nilitary and civil authorities, present working arraneenents are deened satisfactory in the view of the military, inasnuch as there has been an absence of complaints to the contrar; by civilian authori­ties. The provisions of the bill which would deny nilitary courts jurisdiction to try servicemen for rape or murder committed in time of peace in the United States are likewise opposed.

In summation, H.R. 3455 would not facilitate the administration of the armed forces military justice programs, nor would it, in any material respect, add to the safegLU.rds presently available to accused persons under the Uniform Code of Military Justice. On the contrary, its enactment would result in greater delays in the disposition of disciplinary matters, further derogation of conuna.nders 1 disciplinary powers, and, it is believed, would result in a system of justice which would be unwieldly in time of peace and unworkable in time of war or national emergency.

Since the enactment of this legislation would call for an increase in the number of law officers assigned to the various military depart­ments, there would be an increase in budgetary requirements. However, it is not possible at this time to estimate the increase in cost with accuracy.

On 11 December 1958, this Department, on behalf of the Department of Defense, submitted a legislative proposal and draft bill to the Congress, providing omnibus amendments to the Uniform Code of Hilitary Justice. You will recall, of course, that you introduced the Depart­ment of Defense bill and that the resulting bill, H. R. 3387, has been referred to your Committee. H. R. 3387 is the product of several years of study by the Department of :cafense, by the Treasury Department on behalf of the Coast Guard, and by the Court of £u1ita~J Appeals. It provides for more prompt and more efficient administration of justice, both from the standpoint of the individual and the Government and, therefore, this Department urges its enactment.

This report has been coordinated within the D3partment of Defense in accordance with proced~res prescribed by the Secretary of Defense.

The Bureau of the Budget has advised that there is no objection to the submission of this report.

Sincerely yours,

/s/ James H. Douglas

Honorable Carl Vinson Chairman, Committee on Armed

Services House of Representativ~s

5.

ANNEX D.

Aoomparative table of the proposed

amendments to tne Uniform Code of

rftlitary Justice oontained in the

Omnibus Bill and the American Legion

Bill with the present articles of the

Code.

CO

MPA

RA

TIV

ETA

BLE

OF

PRES

ENT

AR

TIC

LE

SO

FU

CM

J,O

MN

IBU

SA

MEN

DM

ENTS

,A

ND

AM

ERIC

AN

LEG

ION

AM

END

MEN

TS

Uni

form

.C

ode

of

Mil

itary

Just

ice

B8o

l.A

rtic

le1

.D

efi

nit

ion

s.In

this

ch

ap

ter:

**

**

(lO

)"L

awO

ffic

er"

mea

nsan

off

icia

lo

fa

gen

­era

lco

urt

-mar

tiaJ

.d

eta

iled

inac

cord

ance

wit

hse

cti

on

826

of

this

titl

e(a

rtic

le26

).

8806

.A

rt.

6.

Judg

eA

dvoc

ates

and

Le

ga

lO

ffi­

~.

{a}

The

assi

gn

men

tfo

rd

uty

of

all

jud

ge

adv

oca

tes

of

the

Arm

yan

dA

irF

orc

ean

dla

wsp

ecia

lill

tso

fth

eN

avy

and

Co

ast

Gua

rdsh

all

bem

ade

upon

the

recC

lllD

Den

datio

no

fth

eJu

dge

Adv

ocat

eG

ener

alo

fth

ear

med

forc

eo

fw

hich

they

are

mem

bers

.T

he

Jud

ge

Adv

ocat

eG

ener

alo

rse

nio

rm

embe

rso

fh

issta

ffsh

all

mak

efr

e­

qu

ent

insp

ecti

on

sin

the

field

insu

per

vis

ion

of

the

ad

min

istr

ati

on

of

mil

itary

just

ice.

(b)

Con

veni

ngau

tho

riti

es

shall

at

all

tim

esC

CIII

IIlU

Dic

ate

dir

ectl

yw

ith

their

.sta

ffju

dg

ead

vo

cate

so

rle

gal.

off

icers

inm

att

ers

rela

­ti

ng

1;0

the,

ac1

min

istr

atio

no

fm

ilit

ary

just

ice;

and

the

sta

ffju

dg

ead

vo

cate

or

leg

al

off

icer

of

8D7

caD

III8

lldis

en

titl

ed

toco

mm

unic

ate

dir

ectl

yw

ith

the

sta

ffju

dg

ead

vo

cate

or

leg

al.

off

icer

of

asu

peri

or

or

sub

ord

inat

eC

OIID

8Dd,

or

wit

hth

eJu

dg

eA

dvoc

ate

Gen

eral

.(c

)N

op

erso

n'W

hoh

asacte

das

mem

ber,

law

o:f

't1

cer,

tria

lco

un

sel,

ass

ista

nt

tria

lcO

UQ

­sei,

defe

nse

co

un

sel,

ass

ista

nt

def

ense

cOU

Q­

sel,

or

inv

esti

pti

ng

off

icer

inan

yca

sem

ayla

ter

act

asa

sta

ffju

dg

ead

vo

cate

or

leg

al

o:f'

t1ce

rto

8D7

rev

iew

J.n

gau

tho

rity

upon

the

sam

eca

se.

omni

bus

Am

endm

ents

Add

:(1

3)

"Con

veni

ngA

uth

ori

ty"

mea

nsth

ep

erso

nw

hoco

nven

edth

eco

urt

,a

cOD

llllis

sion

edo

ffic

er

com

­m

andi

ngfo

rth

eti

me

bei

ng

,a

succ

esso

rin

com

­m

and,

or

any

off

icer

ex

erc

isin

gg

ener

alco

urt

­m

art

ial

juri

sdic

tio

n. NO

CHA

NG

E

Am

eric

anL

egio

nA

men

dmen

ts

(10)

''Law

Off

icer-

mea

nsan

off

icia

lo

fa

gen

eral

or

specia

lco

urt

-mart

ial

deta

iled

inac

cord

ance

wit

hse

cti

on

826

of

this

titl

e.

(art

icle

26

).

8806

•.A

rt.

6.

Jud

ge

Adv

ocat

esan

dL

egal

Of­

ficers

.(a

)T

heas

sig

nm

ent

for

du

tyo

fa

llju

dg

ead

vo

cate

so

fth

eA

rmy

and

Air

Fo

rce

and

law

specia

list

so

fth

eN

avy

and

Co

ast

Gu

ard

shall

be

mad

eup

onth

ere

com

men

dati

ono

fth

eJu

dge

Adv

ocat

eG

ener

alo

fth

ear

med

forc

eo

fw

hich

they

are

mem

bers

.Ju

dge

ad­

vo

cate

so

fth

eAr

m.y

and

Air

Fo

rce

and

law

specia

list

so

fth

eN

avy

and

Co

ast

Gu

ard

,ex

cep

tw

hen

serv

ing

on

ab

oar

do

fre

vie

w.

shall

be

rate

dfo

rfi

tness

.eff

icie

ncy

.an

dp

erfo

rman

ceo

fd

uty

on

lyb

yth

eJU

dge

Adv

ocat

eG

ener

alo

fth

ear

med

forc

eo

fw

hich

they

are

mem

bers

.**

**

/

Ba1

2.A

rt.

12

.C

onf:

J.ne

men

tw

ith

Enem

yPriso~ers

18

12

.A

rt.

12

.C

on:f

'1ne

men

tw

ith

Enem

yP

riso

ners

NOCH

ANGE

Pro

hib

11

;ed

.N

om

embe

ro

fth

ear

med

forc

es

may

Pro

hib

ited

.N

om

embe

ro

fth

ear

med

forc

es

of

the

be

p1.a

ced

inco

nf1

nem

ent

inim

med

iate

ass

ocia

-U

nit

edsta

tes

may

be

pla

ced

inco

nf:J

.nem

ent

inim

-ti

on

wit

hen

emy

pri

son

ers

or

oth

er

fore

ign

med

iate

ass

ocia

tio

nw

ith

enem

yp

riso

ners

or

oth

er

I18.

tion

aJ.s

no

tm

embe

rso

fth

ear

med

forc

es.

fore

ign

nat

ion

al.s

no

tm

embe

rso

fth

ean

ned

forc

es

of

the

Un

ited

Sta

tes,

exce

pt

am

embe

ro

fth

ear

med

forc

es

of

the

Un!

ted

Sta

tes

may

be

con

fin

edin

Un

ited

Sta

tes

con

fin

emen

tfa

cil

itie

sw

ith

mem

bers

of

the

arm

edfo

rces

of

frie

nd

lyfo

reig

nn

ati

on

s.

1I1:

U4.

Art

.1

4.

Deli

very

of

Off

end

ers

toC

ivil

NOCH

ANGE

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14.

Art

.1

4.

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iver

yo

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ffen

der

sto

Au

tho

riti

es.

la}

Und

ersu

chre

gu

lati

on

sas

the

Civ

ilA

uth

ori

ties.

(a)

Am

embe

ro

fth

eS

ecre

tary

con

cern

edm

ayp

resc

rib

e,

am

embe

ro

far

med

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accu

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ffen

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ain

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ear

med

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ain

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civ

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req

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ro

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tria

l.C

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all

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cep

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tim

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be

(b)

'Whe

nd

eli

very

un

der

this

art

icle

ism

ade

deli

vere

d,

upon

pro

per

req

uest

.to

the

civ

ilto

any

civ

ilau

tho

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of

ap

erso

nu

nd

erg

oin

gau

tho

rity

for

tria

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sen

ten

ceo

fa

co

urt

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the

deli

very

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cep

tin

tim

eo

fw

ar,

be

trie

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yo

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llo

wed

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co

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ted

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Un

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Sta

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up

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of

the

pu

nis

hab

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18

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rtic

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co

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and

the

off

en

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er

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ing

ll8

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his

off

en

sem

ent

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ore

aco

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the

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all

,up

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est

of

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itary

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ing

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au

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ilit

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en

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law

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ro

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at

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l.**

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SJ.:)

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np;

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j15.

Art

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man

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Pu

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sid

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fa

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urt

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l--

(1)

upon

off

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man

d--

(1)

upon

offic~rs

of

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man

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(A)*

**

(A)*

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mart

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enin

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rity

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sen

ted

there

to;

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(3)

IIU

JIII

II8r

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urt

s-m

art

ial,

cons

isto

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ot

mor

eth

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on

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of

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feit

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OD

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of

h:l.s

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pay

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dp

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no

tm

are

-(2

)up

ono

ther

mil

itary

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om

on

ths;

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d--

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upon

oth

er

mil

itary

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nel

of'

h:l.s

(E)

if'

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on

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mm

and-

-****

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el,

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than

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'inem

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ater

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if'

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than

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one

mon

this

pa;y

;I

or (H

)if

impo

sed

by

ano

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gra

de

abov

ecap

tain

or

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an

t,co

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ent

for

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enco

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6.A

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16

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Art

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gen

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law

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specia

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sum

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co

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he

isa

mem

ber

if',

bef

ore

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co

urt

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nv

ened

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ng

of

one

com

mis

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edo

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accu

sed

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owin

gth

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the

law

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ee

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eric

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dmen

tto

and

upon

adv

ice

of

co

un

sel,

req

uest

sin

vri

t!n

ga

sec:

825

(Art

.25

),in

tra,

con

cern

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pose

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leg

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qu

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so

fa

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ma

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Art

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on

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of

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icle

~7),

specia

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have

jur-

(art

icle

17

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s-m

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have

sdic

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try

per

son

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son

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for

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and

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on

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the

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for

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ifen

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on

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ent

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by

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un

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idd

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eth

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mor

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ds

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six

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mor

eth

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ead

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on

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jud

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less

aco

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lete

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ep

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No

te.

Wor

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on

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sen

ten

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on

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bee

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ade.

dele

ted

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16

22

.A

rt.

22

.W

hom

ayco

nven

egene~

co

urt

s-ltJ22~

Art

.2

2.

Who

may

conv

ene

gen

eral

co

urt

s-NO

CHAN

GEm

art

ial.

****

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(b)If

any

such

com

man

ding

off

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isan

ac-

b)

If8

QY

per

son

des

crib

edin

sub

sect

ion

(a)

cu

ser,

the

co

urt

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be

conv

ened

by

sup

erio

rth

eco

nveI

11Im

au

tho

rity

).ex

cep

tth

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resi

-ca

np

eten

tau

tho

rity

,an

dm

ayin

any

case

be

den

to

fth

eU

nit

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tate

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anaccu

ser,

the

conv

ened

by

such

au

tho

rity

ifco

nsi

der

edco

urt

mus

tb

eco

nven

edb

ya

com

pet

ent

au

th-

desirab~e

by

him

.o

rity

no

tsu

bo

rdin

ate

incO

Illll8

lldo

rg

rad

eto

the

accu

ser,

and

may

inan

yca

seb

eco

n-

ven

edb

ya

sup

eri

or

com

pet

ent

au

tho

rity

.

1182

3.A

rt.

23

.W

hom

ayco

nven

esp

ecia

lco

urt

s-10

23.

Art

.2

3.

Who

may

conv

ene

specia

lco

urt

s-NO

CHAN

GE

mart

ial.

**

**

mart

ial.

'**

**

(b)

If

any

such

off

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the

co

urt

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8Q

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nd

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ibed

insu

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all.

be

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ened

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pet

ent

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he

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ened

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au

tho

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of

the

Un

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Sta

tes,

isan

accu

ser,

the

cou

rtif

con

sid

ered

adv

isab

leb

yh

im.

mus

tb

eco

nven

edb

ya

can

pet

ent

au

tho

rity

no

tsu

bo

rdin

ate

incO

llllB

Dd

or

grad

eto

the

accu

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may

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nven

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sup

eri

or

com

pet

ent

au

tho

rity

.

i18 Ma

rt

1824

-.A

rt.

24-.

Who

may

conv

ene

sUlll

llllU

"yco

urt

s-NO

CHAN

GE1

82

4.

Art

.2

4.

Who

may

conv

ene

SU

IJIl

IIa

ry

iaJ..

**

**

co

urt

s-m

art

ial.

**

**

(b)

1Il

en

on

lyo

ne

cam

aiss

ion

edo

ffic

er

is(b

)W

hen

on

lyon

ecO

llll

l1ss

ione

do

ffic

er

is~sent

wit

ha

cOlll

lll8.

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ent

he

shal

l.p

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nt

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ha

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lll8!

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rd

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ent,

sum

-th

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ary

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urt

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ial

of

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man

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ary

co

urt

s-m

art

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yo

rd

etac

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tan

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all.

hea

ran

dd

eter

min

ea

llsu

peri

or

com

pet

ent

au

tho

rity

.S

UII

Imar

yco

urt

s-s~

co

urt

-mart

ial

case

sb

rou

gh

tb

efo

reh

im.

mart

ial

may

,ho

wev

er,

be

conv

ened

inan

yca

se.

SU

IaD

ILry

co

urt

s-m

art

ial

11III.

1',ho

wev

er,

beconvene~

inb

ysu

peri

or

ccm

pet

ent

au

tho

rity

whe

nco

nsi

der

ed8.

nyca

seb

ysu

peri

or

ccm

pet

ent

au

tho

rity

whe

nd

esi

rab

leb

yh

im.

cOD

sid

ered

desi

rab

leb

yh

im.

lIt)

25.

Art

.2

5.

Who.,

serv

eon

co

urt

s-18

025.

Art

.12.

Who

may

serv

eo

nco

urt

s-80

25.

Art

.2

5.

Who

may

serv

eon

co

urt

s-m

art

ial.

mart

ial.

(a)

An

ycO

llll

l1ss

ione

do

ffic

er

onacti

ve

mart

ial.

(aA

ny

com

mis

sion

edo

ffic

er

on

(a)

Any

cOll

lll1

ssio

ned

off

icer

onacti

ve

du

tyd

uty

isel1

glb

leto

serv

eo

na

llco

urt

s-m

art

ial

acti

ve

du

tyis

el1g

1.bl

eto

serv

eon

all

isel

1g1.

ble

tose

rve

ong

ener

alan

dsp

ecia

l,fo

rth

etr

ial

of

any

per

son

who

may

law

t'ulJ

.yb

eb

rou

gh

tco

urt

s-m

art

ial

for

the

tria

lo

fan

yp

er-

co

urt

s-m

art

ial

for

the

tria

lo

fan

yp

erso

nw

ho

bef

ore

such

co

urt

sfo

rtr

ial.

son

who

may

law

t'ulJ

.yb

eb

rou

gh

tb

efo

resu

chm

ayla

wt'u

lJ.y

be

bro

ug

ht

bef

ore

such

co

urt

sfo

r(d

)*

**

*.

co

urt

sfo

rtr

ial.

How

ever

,to

be

el1

glb

letr

ial•

(2)

Whe

nco

nv

enin

ga

co

urt

-mart

ial,

.th

eco

nv

en-

for

app

oin

tmen

tas

asi

ng

le-o

ffic

er

(d)

**

**

ing

au

tho

rity

shall

deta

ilas

mem

bers

there

of

such

specia

lco

urt

-mart

ial,

the

off

icer

IIIIlS

1;(2

)W

hen

con

ven

ing

aco

urt

-mart

ial,

the

con

-II

IeII

lber

so

fth

ear

med

forc

esas,

inh

iso

pin

ion

,are

have

the

qu

ali

ficati

on

ssp

ecif

ied

for

aile

nin

gau

tho

rity

shal

l.d

eta

ilas

mem

bers

best

qu

ali

fied

**

*.N

om

embe

ro

fan

arm

edfo

rce

law

off

icer

inse

cti

on

B2

6(a

)o

fth

isti

tle

there

of

such

mem

bers

of

the

arm

edfo

rces

as,

ise1

1g

lble

tose

rve

as

am

embe

ro

fa

gen

eral

or

(art

icle

26

{a»

and

!DU

stb

ecert

ifie

dto

be

inh

iso

pin

ion

,are

best

qu

ali

fied

**

*.N

osp

ecia

lco

urt

-mart

ial

whe

nh

eis

the

e.cc

user

or

aq

uali

fied

for

du

tyas

asi

ng

leo

ffic

er

mem

ber

of

anan

ned

forc

eis

eli

gl.

ble

to.s

erv

ew

itn

ess

for

the

pro

secu

tio

no

rh

asacte

das

inv

est

i-sp

ecia

lco

urt

-mart

ial

by

the

Judg

eA

dvoc

ate

as

am

embe

ro

fa

co

urt

-mart

ial

whe

nh

eis

the

gati

ng

off

icer

or

as

coU

Dse

lin

the

B8IIl

ecase

.G

ener

alo

fth

ear

med

forc

eo

fw

hich

he

isa

accu

ser

or

aw

itn

ess

for

the

pro

secu

tio

no

rm

embe

r.h

asacte

das

inv

est

igati

ng

off

icer

or

as

---

cou

nse

lin

the

sam

eca

se.

(e)

The

au

tho

rity

con

ven

ing

as'-

ry

co

urt

-m

art

ial

shal

l.d

eta

ilas

SU

llllll!l

.ry

co

urt

-mart

ial

acO

llll

l1ss

ione

do

ffic

er

qu

ali

fied

tob

ed

e-

tail

ed

as

the

law

off

icer

of

a;n

era

J.co

urt

-m

art

ial

asp

rov

ided

inse

cti

on

26

of

this

tUle

(art

icle

26

).

1826

.A

rt.

26

.L

awo

ffic

er

of

ag

ener

alco

urt

-NO

CHAN

GE1

82

6.

Art

.2

6.

Law

off

icer

of

ag

ener

alco

urt

-m

arti

al..

(a)

Th

eau

tho

rity

con

ven

ing

ag

ener

alm

art

ial.

(a)

The

au

tho

rity

con

ven

ing

ag

ener

alco

urt

1ll

rt1

aJ.

shall

deta

ilas

law

off

icer

Iorspec1

aJ.

oo

urt

....

,..i

Bl

ob

all

deta

ilas

laY

there

ot

aC

OII

Dis

sion

edo

ffic

er

who

isa

mem

ber

off

icer

there

of

acO

llll

l1ss

ione

do

ffic

er

who

iso

f1:

beb

ar

of

aF

eder

alco

urt

or

of

the

hig

hest

.am

embe

ro

fth

eb

ar

of

aF

eder

alco

urt

or

of

co

urt

'of

aS

tate

and

wh

ois

cert

ifie

dto

be

the

hig

hest

cou

rt,o

fa

Sta

tean

dw

hois

cert

i-qu

alJ.

:t1e

dfo

rsu

chd

uty

by.t

he

Jud

ge

Adv

ocat

e::

:tie

d*

**.

0'

mar

t

Gel

lera

lo

fth

ean

Ded

forc

eo

fw

b1ch

he

is1J

,

MII

1Ier

.N

op

erso

nis

·ell

glb

J.e

toact

asla

wo

fft.

cer

ina

case

if

he

is'\;

heac

cuse

ro

ra

Wi1

iDes

sfo

rth

ep

rose

cuti

on

or

ha

sacte

das

inv

est

igati

ng

of'

f'1

cer

or

ascouns~l

inth

es_

case

.(b

)'!'

bela

wo

f'f'

1ce

rm

ayn

ot

con

sult

Wit

hth

e_

ben

of

the

co

urt

,o

ther

thaD

onth

efo

rmo

tth

ef'

1Il

din

gs

as

pro

vid

edin

secti

on

839

oft

h1

sti

tle

(art

icle

39),

exce

pt

inth

ep

rese

nce

of

the

accu

sed

,·tr

ial

cou

nse

l,an

dd

efen

secO

UD

Se1,

no

r..

.yh

ev

ote

wit

hth

em

embe

rso

fth

eco

urt

.

1821

.A

rt.

27.

Deta

ilo

ftr

ial

cou

nse

lan

dd

eteD

seC

OU

DSe

l..(a

)F

or

each

gen

eral

and

spacia

lco

urt

-mart

ial

the

au

tho

rity

con

ven

­in

gth

eco

urt

sbal1

deta

iltr

ial

cou

nse

lan

dde

f'eD

seco

un

sel,

and

such

ass

ista

nts

ash

eco

ns1

der

sa.

PP

1'op

riat

e.

iIW!9.

Art

.2

9.

Ab

sen

tan

dad

dit

ion

al

mem

bers

.****

..

(c)

Wbe

neve

ra

specia

lco

urt

-mart

ial

isre

­d

uce

dbe

lOY

thre

em

embe

rs,

the

tria

lm

ayn

ot

pro

ceed

UD

1es

8th

eco

nv

enin

gau

tho

rity

de­

taU

sD

eWm

embe

rs8I

11'f

1cie

ntin

num

ber

to()

rovi

cJe

no

t1

8ss

thaD

thre

em

embe

rs.

Whe

nth

eD

eWm

embe

rsh

ave

bee

n8

1lO

m,

the

tria

lsb

al1

pro

ceed

as

if

no

evid

ence

had

pre

vio

usl

yb

een

intr

od

uced

,u

nle

ssa

ver

bat

imre

cord

of

thete8't~

of

pre

vio

usl

yeX

Blll

1ned

wit

nes

ses

0110

a8

'tip

1la

tio

nth

ere

of

1s

read

toth

eco

urt

inth

ep

rese

nce

of

the

accu

sed

and

cou

nse

l.

~~.

Art

.3

0.

nt

mty

pre

scri

be

rule

s.

NOCH

ANGE

NOCH

AN

GE

NOCH

AN

GE

(b)

The

law

off

icer

may

no

tco

nsu

ltw

ith

the

mem

bers

of

the

cou

rtex

cep

tin

the

pre

sen

ceo

fth

eac

cuse

d,

tria

lco

un

sel,

def

ense

cou

nse

l,an

dth

ere

po

rter,

ifan

y,n

or

may

he

vo

tew

ith

the

mem

bers

of

the

co

urt

.C

c)T

hela

wo

ffic

er

shall

pre

sid

eo

ver

all

pro

­ce

edin

gs

of

gen

eral

and

specia

lco

urt

s-m

art

ial

exce

pt

whe

ncl

ose

dfo

rd

eli

bera

tio

no

rv

oti

ng

by

mem

bers

and

shall

co

ntr

ol

dir

ect

and

reg

u­

late

the

con

du

cto

fa

llp

roce

edin

gs

befo

reth

e~.

1827

.A

rt.

27.

Deta

ilo

ftr

ial

cou

nse

lan

dd

e­

fen

seco

un

sel.

(a)

Fo

rea

chg

ener

alan

dsp

ecia

lco

urt

-mart

ial

the

au

tho

rity

con

ven

ing

the

co

urt

shall

deta

iltr

ial

cou

nse

lan

dd

efen

seco

un

sel,

and

such

ass

ista

nts

ash

eco

nsi

der

sap

pro

pri

ate

.U

pon

req

uest

of

the

accu

sed

,th

eau

tho

rity

con

­v

enin

ga

sl.ll

llllla

l'yco

urt

-mart

ial

shall

det

aiJ.

ad

efen

seco

un

sel.

1W29

.A

rt.

29.

Ab

sen

tan

dad

dit

ion

al

mem

bers

.

****

(c)

Whe

neve

ra

specia

lco

urt

-mart

ial

isre

du

ced

bel

ow

thre

em

embe

rs,

tlie

tria

lm

ayn

ot

pro

ceed

un

less

the

con

ven

ing

au

tho

rity

deta

ils

new

mem

bers

suff

icie

nt

innu

mbe

rto

pro

vid

en

ot

less

tha

nth

ree

mem

bers

.W

hen

the

new

mem

bers

hav

eb

een

swo

rn,

the

tria

lsh

all

pro

ceed

as

11'

no

evid

ence

had

prev

iOll

.sly

bee

nin

tro

du

ced

,,

un

less

av

erb

atim

reco

rdo

fth

etest1mo~

of

pre

vio

usl

yex

amin

edw

itn

esse

so

ra

stip

ula

tio

nth

ere

of

isre

ad

toth

eco

u.rt

inth

ep

rese

nce

of

the

law

of"

f'ic

er,

the

accu

sed

and

cou.

nsel

.

mil

itary

trib

un

als

may

be

pre

scri

bed

by

the

Pre

si­

den

tb

yre

gu

lati

on

sW

hich

shall

,so

far

ash

eco

n­

sid

ers

pra

cti

cab

le,

app

lyth

ep

rin

cip

les

of

law

and

the

rule

so

fev

iden

ceg

ener

alJ.

yre

cog

niz

edin

the

tria

lo

fcr

im1

Ilal

case

sin

the

Un

ited

Sta

tes

dis

tric

tco

urt

s,b

ut

whi

chm

ayn

ot

be

co

ntr

ary

too

rin

co

nsi

sten

tw

ith

this

ch

ap

ter.

(b)

A:U

rule

san

dre

gu

lati

on

sm

ade

un

der

this

art

icle

shall

be

un

ifo

rmin

sofa

ras

pra

cti

cab

lean

dsh

all

be

rep

ort

ed

toC

on

gre

ss.

case

sb

efo

reco

urt

s-m

art

ial

shall

app

lyth

ep

rin

cip

les

of

law

and

the

rule

so

fev

iden

ceap

­p

licab

leto

the

tria

lo

fcr

imin

al.

case

sin

the

Un

ited

Sta

tes

Dis

tric

tC

ou

rtfo

rth

eD

istr

ict

of

Col

umbi

a,ex

cep

tas

such

pri

ncip

les

and

rule

sare

co

ntr

ary

too

rin

co

nsi

sten

tw

ith

this

chap

­te

r.N

oru

leo

rre

gu

lati

on

ap

pli

cab

leto

co

urt

s­m

art

ial

shall

defi

ne,

inte

rpre

t,o

rse

tfo

rth

the

elem

ents

of

any

off

ense

un

der

this

ch

ap

ter

exce

pt

ano

ffen

sen

ot

def

ineo

,in

this

ch

ap

ter

and

ari

sin

go

nly

inth

em

ilit

ary

.se

rvic

e,

inw

hich

case

the

Judg

eA

dvoc

ates

Gen

eral

may

join

tly

pre

scri

be

such

rule

.(b

)N

oru

leo

rre

gu

lati

on

app

lica

bJ.

eto

co

urt

s­m

art

ial

iseff

ecti

ve

un

tUad

op

ted

by

form

alo

rder

of

the

co

urt

of

Mil

itary

Ap

pea

lsan

dap

-p

rov

edb

yth

eP

resi

den

t."

(c)

The

pro

ced

ure

,in

clu

din

gm

odes

of

pro

of,

inca

ses

bef

ore

co

urt

so

fin

qu

iry

,m

ilit

ary

colll

lll1s

­si

on

s,an

do

ther

m1

l1ta

rytr

ibu

nals

exce

pt

co

urt

s-m

art

ial

may

be

pre

scri

bed

by

the

Pre

sid

en

tb

yre

gu

lati

on

sw

hich

shall

,in

sofa

ras

he

con

­si

ders

pra

cti

cab

le,

app

lyth

ep

rin

cip

les

of

law

and

the

rule

so

fev

iden

ce.

gen

era

lly

reco

gn

ized

inth

etr

ial

of

crim

inal

case

sin

the

Un

ited

ISta

tes

dis

tric

tco

urt

s,b

ut

whi

chm

ayn

ot

be

co

ntr

ary

too

rin

co

nsi

sten

tw

ith

this

ch

ap

ter.

(d)

A:U

rule

san

dre

gu

lati

on

sap

pli

cab

leto

co

urt

s-m

art

ial,

co

urt

so

fin

qu

iry

,m

ilit

ary

com

-m

issi

on

s,an

do

ther

mil

itary

trib

un

als

shall

be

un

ifo

rmin

sofa

ras

pra

ctic

abJ.

ean

dsh

all

be

re-

po

rted

toth

eC

on

gre

ss.

-(e

)T

hep

rov

isio

ns

of

this

chap

ter

shall

be

con

­st

rued

and

inte

rpre

ted

inac

cord

ance

wit

hth

eru

les

of

statu

tory

co

nst

ructi

on

ap

pli

ed

inth

eF

eder

alco

urt

s.E

xce

pt

whe

reco

ntr

ary

too

rin

­co

nsi

sten

tw

ith

the

pro

vis

ion

so

fth

isch

ap

ter,

all

qu

esti

on

so

fev

iden

cein

co

urt

s-m

art

ial

shall

be

deci

de"d

inac

cord

ance

wit

hth

eru

les

ap

pli

ed

inth

etr

ial

of

cr1m

iIla

l.ca

ses

"in

the

Un

ited

Sta

tes

dis

tric

tco

urt

s.

7

1183

7.A

rt.

31.

Unl

aw!U

lJ.y

inn

uen

cin

gacti

on

of

cou

rt.

No

au

tho

rity

con

ven

ing

ag

ener

al.,

specia

l,o

rsU

llllll

8X"Y

co

urt

-mart

ial,

no

ran

yo

ther

cOlll

lll8D

ding

off

icer,

may

cen

sure

,re

pri

man

d,

or

adm

onis

hth

eco

urt

or·

any

mem

ber,

law

off

icer,

or

cou

nse

lth

ere

of,

w:Lt

hre

spect

toth

efi

nd

ing

so

rse

nte

nce

adju

dg

edb

yth

eco

urt

,o

rw

:Lth

resp

ect

toan

yo

ther

ex

erc

ise

of

its

or

his

fun

ctio

ns

inth

eco

nd

uct

of

the

pro

ceed

ing

.N

op

erso

nsu

bje

ct

to"t

his

chap

ter

may

atte

mp

tto

coer

ceo

r,b

yan

yu

nau

tho

rize

dm

ean

s,in

nu

en

ce

the

acti

on

of

aco

urt

1B

rt1

al

or

any

oth

er

m:I

.1it

ary

trib

un

al

or

any

mem

ber

there

ot,

inre

ach

ing

the

fin

din

gs

or

sen

ten

cein

any

case

,o

rth

e"'a

ctio

no

fan

yco

nv

enin

g,

app

rov

ing

,o

rre

­v

iev

1D

sau

tho

rity

wit

hre

spect

toh

isju

dic

ial

acts

.

1183

8.A

rt.

•D

uti

eso

ttr

ial

cou

nse

lan

dd

efen

seco

un

sel.

aT

hetr

ial

cou

nse

lo

fa

gene

ral.

or

spec

ial.

co

urt

4l&

rtia

lsh

all

pro

secu

tein

the

nam

eo

fth

eU

nit

edS

tate

s,an

dsh

all

,u

nd

erth

ed

irecti

on

of

the

co

urt

,p

rep

are

the

reco

rdo

fth

ep

roce

edin

gs.

(b)

The

accu

sed

ha

sth

eri

gh

tto

be

rep

rese

nte

din

bis

def

ense

befo

rea

gen

eral

or

specia

lco

urt

­m

art

ial

by

civ

ilia

nco

un

selif

pro

vid

edb

yh

im,

or

by

mil

1ta

.r)'

cou

nse

lo

fh

isow

nse

lecti

on

ifre

aso

n­

ab

lyav

ail

ab

le,

or

by

the

def

ense

cou

nse

ld

eta

iled

un

der

secti

on

821

of

this

titl

e(a

rtic

le21

).S

ho

uld

the

accu

sed

have

cou

nse

lo

fb

isow

ns~lection,

the

def

ense

cou

nse

l,an

dass

ista

nt

def

ense

cou

nse

l,if

8D¥,

who

_re

deta

iled

,sh

all

,if

the

accu

sed

so'

desi

res,

act

as

his

ass

oq

tate

cou

nse

l;o

ther

wis

e~

sb

aU

be

excu

sed

by

the

pre

sid

en

to

fth

eco

urt

..(

c)

Inev

e!'7

co

urt

-mart

ial

pro

ceed

ing

,th

ed

efen

seco

un

sel

may

,in

the

even

to

fco

nv

icti

on

,fo

rwar

dfo

rat

tach

llle

nt

toth

ere

co

rdo

fp

roce

edin

gs

ab

rief

of

1183

7.!%

't.

37

.U

nlaW

'1"u

ll3"

inn

uen

cin

gacti

on

of

co

urt

.N

oau

tho

r1ty

con

ven

ing

ag

en

era

l,sp

ecia

l,o

rsU

IIIIII

IIrY

co

urt

-mart

ial,~

oth

er

caom

andi

ngo

ffic

er,

or

any

off

icer

serv

ing

on

the

sta

ffs

there

of,

may

cen

sure

,re

pri

man

d,

or

adm

onis

hth

eco

urt

or

any

mem

­b

er,

law

off

icer,

or

cou

nse

lth

ere

of,

wit

h!

resp

ect

toth

efi

nd

ing

so

rse

nte

nce

adju

dg

edt

by

the

co

urt

,o

rw

ith

resp

ect

toan

yo

ther

Iex

erc

ise

of

its

or

his

fun

ctio

ns

inth

eco

n­

du

cto

fth

ep

roce

edin

g.

No

per

son

sub

ject

.to

this

chap

ter

may

atte

mp

tto

coer

ceo

r,b

yan

yu

nau

tho

rize

dm

eans

,in

nu

en

ce

the

acti

on

of

aco

urt

-mart

ial

or

any

oth

er

m1

l1ta

rytr

i­b

un

al.

or

any

lII!

mbe

rth

ere

of,

inre

a.ch

1.ng

the

fin

din

gs

or

sen

ten

cein

any

case

,o

rth

eac­

tio

no

fan

yco

nv

enin

g,

app

rov

ing

,o

rr'

evie

w-

!1

ng

au

tho

rity

wit

hre

spect

toh

isju

dic

ial

!acts

.!

NOCH

AN

GE

Add

sto

Tit

le1

8,

Un

ited

Sta

tes

Cod

e:11

1509

.In

flu

enci

ng

mil

ltary

trib

un

al

or

mem

ber,

law

off

icer,

or

cou

nse

l.t

here

of.

Who

eVer

cen

sure

s,re

pri

­m

ands

,ad

mon

ishe

so

ren

dea

vo

rsto

coer

ceo

rim

pro

per

lyin

flu

en

ce,

dir

ectl

yo

rin

dir

ectl

y,

any

ccu

rt­

mart

ial,

co

urt

of

inq

uir

y,

m:l

.li­

tary

CO

DII

II1s

sion

,o

ran

yo

ther

mil

i­ta

rytr

ibu

nal

or

bo

ard

or

rev

iew

­in

gau

tho

rity

,o

ran

ym

embe

r,la

wo

ffic

er,

or

cou

nse

lth

ere

of

wit

hre

spect

toth

edu

ean

dp

rop

erp

er­

form

ance

of

its

or

bis

off

icia

ld

uti

es

or

fun

ctio

ns

shall

be

fin

ed

no

tm

ore

than

$500

0o

rim

pri

son

edfo

rn

ot

mor

eth

anfi

ve

years

,o

rb

oth

.

1183

8.A

rt.

38.

Du

ties

of

tria

lco

un

sel

and

def

ense

cou

nse

l.(a

)T

he

tria

lco

un

­se

lo

fa

gen

eral

or

specia

lco

urt

-mart

ial

sh

all

pro

secu

tein

the

nam

eo

fth

eU

nit

edS

tate

s,an

dsh

all

,u

nd

erth

ed

irecti

on

of

the

law

off

icer,

pre

par

eth

ere

co

rdo

fth

ep

roce

edin

gs.

(b)

The

accu

sed.

has

the

rig

ht

tob

ere

pre

­se

nte

din

his

def

ense

bef

ore

aco

urt

­-.

rt1

al

by

civ

illa

nco

un

sel

if'

pro

vid

edb

yh

im,

or

by

mil

ltary

cou

nse

lo

fb

isow

nse

lecti

on

if'

reas

on

ably

av

ail

ab

le,

01

"'b

yth

ed

efen

seco

un

sel

deta

iled

un

der

secti

on

821

of'th

isti

tle

(art

icle

21).

Sh

ou

ldtb

eac

cuse

dh

ave

cou

nse

lof

'h

isow

nse

­le

cti

on

,th

ed

efen

seco

un

sel,

and

assis

­ta

nt

def

ense

cou

nse

l,if

any

,w

how

ere

deta

iled

,sh

all

,if

the

accu

sed

sod

e­

sir

es,

act

asb

isass

ocia

teco

un

sel;

8

such

matt

ers

ash

efe

els

sho

uld

be

con

sid

ered

Iin

beh

alf

of

the

aCC

'J.se

don

_re

vie

w,

inclu

din

gan

yo

bje

cti

on

toth

eco

nte

nts

of

the

reco

rd'o

Ih1c

hh

eco

nsi

der

sap

pro

pri

ate

.(d

)A

nass

ista

nt

tria

J.co

un

sel

of

ag

ener

alco

urt

-mart

ial

may

,u

nd

erth

ed

irecti

on

of

the

tria

lco

un

selo

r'W

hen

he

isq

uali

fied

tob

ea

titl

e(a

rtic

le2

7),

per

form

any

du

tyim

pose

db

yla

.w,

reg

ula

.tio

n,

or

the

cust

ano

fth

ese

rvic

eup

onth

etr

ial

cou

nse

lo

fth

eco

urt

.A

nassis

t­an

ttr

ial

cou

nse

lo

fa

specia

lco

urt

-mart

ial

may

per

form

any

du

tyo

fth

etr

ial

cou

nse

l.(e

)A

nass

ista

nt

def

ense

cou

nse

lo

fa

gen

eral

or

specia

lco

urt

-mart

ial

may

,u

nd

erth

ed

irec­

tio

no

fth

ed

efen

seco

un

selo

rw

hen

he

isq

uali

fied

tob

eth

ed

efen

seco

un

sel

as

re-

qu

ired

by

secti

on

827

of

this

titl

e(a

rtic

le27

),p

erfo

rman

yd

uty

impo

sed

by

law

,re

gu

­la

tio

n,

or

the

cust

om

of

the

serv

ice

upon

cou

nse

lfo

rth

eac

cuse

d.

39.

Art

.39

.S

essi

on

s.W

hen

ag

ener

alo

rsp

ecia

lco

urt-

iiiB

rti8

1.d

eli

bera

tes

or

vo

tes,

on

lyth

em

embe

rso

fth

eco

urt

may

be

pre

sen

t.A

:f'te

ra

gen

eral

cou

rt-l

r.ar

tial

has

fin

all

yv

ote

don

the

fin

din

gs,

the

cou

rtm

ayre

qu

est

the

law

off

icer

and

the

rep

:)rt

er

toap

pea

rb

efo

reth

eco

urt

to..

pu

tth

efi

nd

ing

sin

pro

per

form

,an

dth

ose

pro

ceed

ing

ssh

all

be

onth

ere

cord

.A

llo

ther

pro

ceed

ing

s,in

clu

din

ga

ny

oth

er

co

nsu

lta­

tio

no

fth

eco

urt

liit

hco

un

selo

rth

ela

wo

ffi­

cer,

shall

be

mad

ea

part

of

the

reco

rdan

dsb

al1

be

inth

ep

rese

nce

of

the

accu

sed

,th

ed

efen

seco

un

sel,

the

tria

lco

un

sel,

and

ing

en­

era

lco

urt

-mart

ial

case

s,th

ela

wo

ffic

er.

NOCH

AN

GE

oth

erw

ise

they

shall

be

excu

sed

by

the

law

off

icer

or

sl.llll

lJlB.

I"Yco

urt

-mart

ial.

(c)

Inev

ery

co

urt

-mart

ial

pro

ceed

ing

,th

ed

efen

seco

un

sel

may

,in

the

even

to

fco

nv

ic­

tio

n,

forw

ard

for

atta

chm

ent

toth

ere

cord

of

pro

ceed

ing

sa

bri

ef

of

such

matt

ers

as

he

feels

sho

uld

be

con

sid

ered

inb

eh

alf

of

the

accu

sed

on

rev

iew

,in

clu

din

gan

yo

bje

c­

tio

nto

the

con

ten

tso

fth

ere

co

rd'o

Ih1c

hh

eco

nsi

der

sap

pro

pri

ate

.i

(d)

An

ass

ista

nt

tria

lco

un

sel

of

ag

ener

alIc

ou

rt-m

art

ial

may

,Il

!lde

rth

ed

irecti

on

-of

the

tria

lco

un

selo

rw

.en

he

isq

uali

fied

tob

ea

tria

lco

un

sel

as

req

uir

ed

by

secti

on

827

of

this

titl

e(a

rtic

le2

7),

per

form

any

du

tyim

pose

db

yla

w,

reg

ula

tio

n,

or

the

cu

stan

of

the

serv

ice

upon

the

tria

lco

un

sel

of

the

co

urt

.A

nass

ista

nt

tria

lco

un

sel

of

asp

ecia

lco

urt

-mart

ial

'tlJfJ.

yp

erfo

rman

yd

uty

of

the

tria

lco

un

sel.

(e)

An

ass

ista

nt

def

ense

cou

nse

lo

fa

gen

eral

or

specia

lco

urt

-mart

ial

may

,u

nd

erth

ed

irec­

tio

no

fth

ed

efen

seco

un

selo

r'W

hen

he

isq

uali

fied

tob

eth

ed

efen

seco

un

sel

as

re­

qu

ired

by

secti

on

827

of

this

titl

e(a

rtic

le2

1),

per

form

any

du

tyim

pose

db

yla

w,

reg

u­

lati

on

,o

rth

ecu

stom

of

the

serv

ice

upon

cou

nse

lfo

rth

eac

cuse

d.

1183

9.A

rt.

39.

Ses

sio

ns.

Whe

na

gen

eral

or

specia

lco

urt

-mart

ial

deli

bera

tes

or

vo

tes,

on

lyth

em

embe

rso

fth

eco

urt

may

be

pre

sen

t.A

llo

ther

pro

ceed

ing

s,in

clu

din

g~

con

sul­

tati

on

of'

the

co

urt

wit

hco

un

selo

rth

eJ.

awo

ffic

er,

shall

be-m

ade

ap

art

of

the

reco

rdan

dsh

all

be

inth

ep

rese

nce

of

the

accu

sed

,th

ed

efen

seco

un

sel,

the

tria

lco

un

sel,

and

the

J.aw

off

icer.

r

H84

0.A

rt.

40.

Co

nti

nu

ance

s.A

co

urt

-mart

ial

may

,NO

CHA

NG

E18

40.

Art

.40

.C

on

tin

uan

ces.

Ala

wo

1'f

icer

for

reas

ou

able

cau

se,

gra

nt

aco

nti

nu

ance

toan

yo

rIf

fill!I

U'1

"yco

urt

-1:l

lart

ial

may

,fo

rre

aso

nab

lep

art

yfo

rsu

ch

tim

e,

and

as

of'

ten

,as

may

app

ear

cau

se,

gra

nt

aco

nti

nu

ance

to'a

ny

pa

rty

for

tob

eju

st.

such

tim

e,an

das

oft

en

,as

may

app

ear

tob

eju

st.

18

41

.A

rt.

41

.C

hal

len

ges

.(a

)M

embe

rso

fa

1184

l.A

rt.

4l.

Ch

alle

ng

es.*

**

*(b

)E

ach

I118

41.

Art

.4

1.

Cha

l.l.

enge

s.(a

)M

embe

rso

fa

gen

eral

.o

rsp

ecia

lco

urt

-mart

ial

and

the

law

accu

sed

and

the

tria

lco

un

sel

isen

titl

ed

gen

eral

or

specia

lco

urt

-mart

ial

and

the

law

o1

'fic

ero

fa

gen

eral

.co

urt

-1:l

lart

ial

may

be

toon

ep

erem

pto

rych

alle

ng

e,b

ut

the

law

off

icer

of

aco

urt

-mart

ial

may

be

chal

l.en

ged

chal

.len

ged

by

the

accu

sed

or

the

tria

lco

un

sel

off

icer

and

ano

ffic

er

app

oin

ted

asa

sin

gle

-b

yth

eac

cuse

do

rth

etr

ial

cou

nse

lfo

rca

use

for

cau

sest

ate

dto

the

co

urt

.T

heco

urt

shal

l.o

ffic

er

specia

lco

urt

-mart

ial

may

no

tb

est

ate

dto

the

co

urt

.T

he

law

off

icer

sh

all

dete

l'll

1ne

the

rele

van

cyan

dv

ali

dit

yo

fch

al.-

'ch

alle

ng

edex

cep

tfo

rca

use

.d

eter

min

eth

ere

lev

ancy

and

vali

dit

yo

fch

al-

len

ges

for

cau

se,

and

may

no

tre

ceiv

ea

ch

al-

len

ges

for

cau

se,

and

may

no

tre

ceiv

ea

ch

al-

len

ge

tom

ore

tha

non

ep

erso

nat

ati

me.

Ch

al-

len

ge

tom

ore

tha

non

ep

erso

nat

ati

me.

Ch

al-

len

ges

by

the

tria

lcO

Wls

elsh

all.

ord

inari

lyle

ng

esb

yth

etr

ial

cou

nse

lsh

all.

orc

lin

ari

lyb

ep

rese

nte

d'a

nd

dec

ided

befo~

tho

seb

yth

eb

ep

rese

nte

dan

dd

ecid

edb

efo

reth

ose

by

the

accu

sed

are

of'

f'er

ed.

.ac

cuse

dare

off

ere

d.

**

**

(b)

Eac

hac

cuse

dan

dth

etr

ial

cou

nse

lis

en

-t!

tl.e

d1

;0o

ne

per

emp

tory

chal

len

ge,

bu

tth

ela

wo

1'f

icer

may

no

tb

ech

alle

ng

edex

cep

tfo

rca

use,

18

51

.A

rt.

51

.V

oti

ng

and

ruli

ng

s.(a

)V

oti

ng

1185

l.A

rt.

51

.V

oti

ng

an

dru

lin

gs.

**

**

18

51

.A

rt.

51

.V

oti

ng

and

ruli

ng

s.b

ym

emb

ers

of

ag

ener

al.

or

specia

lco

urt

-(b

)T

hela

wo

ffic

er

of

ag

ener

alco

urt

-mart

ial

(a)

Vo

tin

gb

ym

embe

rso

fa

gene

ral.

or

specia

lm

art

ial

upon

qu

esti

on

so

fch

alle

ng

e,on

the

and

the

pre

sid

en

to

fa

specia

lco

urt

-mart

ial

co

urt

-mart

ial

on

the

fin

din

gs

and

onth

efi

nd

ing

s,an

don

the

sen

ten

cesh

all.

be

by

se-

shal

l.ru

leup

onin

terl

ocu

tory

qu

est

ion

s,o

ther

sen

ten

cesh

all.

be

by

secre

tw

ritt

en

ball

ot.

cre

tv

ri-t

ten

bBJ.

l.ot

.T

he

jun

ior

mem

ber

of

the

than

chal

l.en

ge,

ari

sin

gd

uri

ng

the

pro

ceed

-~e

jun

ior

mem

ber

of

the

cou

rtsh

all.

cou

nt

co

urt

shaU

.co

un

tth

ev

ote

s.T

he

cou

nt

shal

l.in

gs.

Any

such

ruli

ng

mad

eb

yth

ela

wo

ffic

er

["he

vo

tes.

The

cou

nt

shal

l.b

ech

eck

edb

yb

ech

eck

edb

yth

ep

resi

den

t,w

hosh

all.

fort

h-

of

ag

ener

alco

urt

-mart

ial

upon

an

yin

terl

ocu

-th

ese

nio

rm

embe

r,w

hosh

all.

fort

hw

ith

an

-w

ith

8DIIO

UJlc

eth

ere

sult

of

the

bal

l.o

tto

the

tory

qu

esti

on

oth

er

than

the

qu

esti

on

of

ac-

!Dou

nceth~

resu

lto

fth

eb

all

ot

inop

enm

embe

rso

fth

eco

urt

.cu

sed

'ss~ty

isfi

nal

eand

co

nst

itu

tes

the

cou

rt•

.,r

(b)

Th

el.a

wo

1'f

icer

of

ag

ener

al.

co

urt

-mart

ial

ruli

ng

of

the

co

urt

.H

owev

er,

the

law

o1

'fic

er(b

)T

hela

wo

ffic

er

of

ag

ener

alo

rsp

ecia

lan

dth

ep

resi

den

to

fa

specia

lco

urt

-mart

ial

may

chan

geh

isru

lin

gat

an

yti

me

du

rin

gth

eco

urt

-mart

ial

shal

l.ru

leup

onall

inte

rlo

cu

-sh

all

rul.

eup

onin

ter1

0cu

tory

qu

est

ion

s,o

ther

tria

lex

cep

ta

ruli

ng

ona

mo

tio

nfo

ra

fin

d-

tory

qu

esti

on

sari

sin

gd

uri

ng

the

pro

ceed

ing

s.tb

an

chal

l.en

ge,

ari

sin

gd

uri

ng

the

pro

ceed

ing

s.in

go

fn

ot

gu

ilty

whi

chw

asg

ran

ted

.U

nle

ssA

nysu

chru

lin

gm

ade

by

the

law

off

icer

upon

AD7

such

rulin

gm

ade

by

the

law

off

icer

of

ath

eru

lin

gis

fin

al,

ifa

ny

mem

ber

ob

jects

any

inte

r10

cu

tory

qu

esti

on

oth

er

than

the

gen

eral

.co

urt

-mart

ial

upon

ariy

inte

rlo

cu

tory

there

to,

the

cou

rtsh

all

be

cle

are

dan

dcl

ose

dq

ues

tio

no

fth

eac

cuse

d's

san

ity

isfi

nal

and

qu

esti

on

oth

er

tban

am

oti

on

for

afi

nd

ing

of

and

the

qu

esti

on

dec

ided

by

av

oic

ev

ote

asco

nst

itu

tes

the

ruli

ng

of

the

co

urt

.H

owev

er,

no

tgu

:ll.v,

or

the

qu

esti

on

of

accu

sed

'ssa

n-

pro

vid

edin

secti

on

852

of

this

tit1

e(a

.rti

cl;~

the

law

o1

'fic

erm

aych

an

ge

his

ruli

ng

at

any

ity

,~s

f'1n

al.

and

co

nst

itu

tes

the

ruli

ng

of

52

),b

egin

nin

gw

ith

the

jun

ior

inra

nk

.*

**

tim

ed

uri

ng

the

tria

lex

cep

ta

ruli

ng

ona

the

cou

rt.

How

ever

,th

ela

wo

1'f

icer

may

mo

tio

nfo

ra

fin

din

go

fn

ot

gu

ilty

that

was

Ie>

cban

ge

his

ruli

ng

at

any

tim

ed

uri

ng

the

tria

l.U

nle

ssth

eru

lin

gis

fin

al,

if

an

ym

embe

ro

b­

jects

there

to,

the

co

urt

shal1

be

cle

are

dan

dclo

sed

and

the

qu

est

ion

dec

ided

by

av

oic

ev

ote

as

pro

vid

edin

secti

on

85

2o

fth

isti

tle

(art

icle

52

),b

egin

nin

gw

ith

the

jun

ior

inra

nk

.(c

)B

efo

rea

vo

teis

tak

en

on

the

fin

din

gs,

the

law

off

icer

of

ag

en

era

lco

urt

-mart

ial

and

the

pre

sid

en

to

fa

specia

lco

urt

-mart

ial

sh

all

,in

the

pre

sen

ceo

fth

eac

cuse

dan

dco

un

sel,

inst

ruct

the

coU

rtas

toth

eele

­m

ents

of

the

off

en

sean

dch

arg

eth

eco

urt

--(1

)th

at

the

accu

sed

mu

stb

ep

resu

med

tob

ein

no

cen

tu

nti

lh

isg

uil

tis

est

ab

lish

ed

by

leg

al

and

com

pet

ent

evid

ence

bey

on

dre

aso

nab

led

ou

bt;

(2)

that

inth

eca

seb

ein

gco

nsi

dere

d,if

there

isa

reas

on

able

do

ub

tas

toth

eg

uil

to

fth

eae

cuse

d,

the

do

ub

tm

ust

be

reso

lved

infa

vo

ro

fth

eac

cuse

dan

dh

em

ust

be

acq

uit

ted

;(3

)th

at,

if

there

isa

reas

on

able

do

ub

tas

toth

ed

egre

eo

fg

uil

t,th

efi

nd

ing

mu

stb

ein

alo

wer

deg

ree

as

tow

hic

hth

ere

isno

reas

on

able

do

ub

t;an

d(I

j.)th

at

the

bu

rden

of

pro

of

toest

ab

lish

the

gu

ilt

of

the

accu

sed

bey

on

dre

aso

nab

led

ou

bt

isup

onth

eU

nit

edS

tate

s.

52

.A

rt.

2.

Num

ber

of

vo

tes

rere

d.

(a)

(1N

op

erso

nm

ayb

eco

nv

icte

do

fan

off

ense

for

wh

ich

the

dea

thp

en

alt

yis

mad

em

and

ato

ryb

yla

w,

exce

pt

by.

the

con

curr

ence

of

all

the

mem

bers

of

the

CQ

lrt-

mart

ial

pre

sen

tat

the

tim

eth

ev

ote

1s

tak

en

.(2

)N

op

erso

nm

ayb

eco

nv

icte

do

fa

ny

oth

er

off

en

se,

exce

pt

by

the

con

curr

ence

of

two

-th

ird

so

fth

em

embe

rsp

rese

nt

at

the

tim

eth

ev

ote

1s

tak

en

.(b

)(1

)N

op

erso

nm

ayb

ese

nte

nce

dto

suff

er

death

,ex

cep

tb

yth

eco

ncu

rren

ceo

fa

llth

e

(d)

Su

bse

ctio

ns

(a),

(b),

and

(c)

of

this

secti

on

don

ot

app

lyto

asi

ng

le­

off

icer

specia

lco

urt

-mart

ial.

An

off

i-cer

who

isap

po

inte

das

asi

ng

le-o

ffic

er

specia

lco

urt

-mart

ial

sball

det

erm

ine

all

qu

est

ion

so

fla

wan

dfa

ct

ari

sin

gd

uri

ng

the

tria

lan

d,

ifth

eac

cuse

dis

co

nv

icte

d,

adju

dg

ean

ap

pro

pri

ate

sen

ten

ce.

NOCH

ANGE

gra

nte

d.

If

an

ym

embe

ro

bje

cts

toa

ruli

ng

of

the

law

off

icer

on

the

qu

est

ion

of

the

accu

sed

'ssa

nit

y,

the

cou

rt-

sh

all

be

cle

are

dan

dclo

sed

and

the

qu

est

ion

de­

cid

ed

by

av

oic

ev

ote

as

pro

vid

edin

sec­

tio

n8

52

of

this

titl

e(a

rtic

le5

2),

be­

gin

nin

gw

ith

the

jun

ior

inra

nk

.(c

)B

efo

rea

vo

teis

tak

eno

nth

efi

nd

ing

s,th

ela

wo

ffic

er

of

ag

en

era

lo

rsp

ecia

lco

urt

-mart

ial

sh

all

,in

the

pre

sen

ceo

fth

eac

cuse

dan

dco

un

sel,

inst

ruct

the

co

urt

as

toth

eel

emen

tso

fth

eo

ffen

sean

dch

arg

eth

eco

urt

--*

**

*.

I5

2.

Art

.5

2.

Num

ber

of

vo

tes

req

uir

ed

.

****

(c)

All

oth

er

qu

esti

on

sto

be

dec

ided

by

the

mem

bers

of

ag

ener

alo

rsp

ecia

lco

urt

­m

art

ial

shal1

bed

eter

min

edb

ya

majo

rity

vo

te.

Ati

ev

ote

ona

mo

tio

nre

lati

ng

toth

eq

uest

ion

of

the

accu

sed

'ssa

nit

yis

ad

eter

min

atio

nag

ain

stth

eac

cuse

d.

At1

ev

ote

on

any

oth

er

qu

est

ion

18

ad

eter

min

a­ti

on

infa

vo

ro

fth

eac

cuse

d.

II

mem

bers

of

the

co

urt

-mart

ial

pre

sen

tat

the

tim

eth

ev

ote

ista

ken

and

for

ano

ffen

sein

this

ch

ap

ter

ex

pre

ssly

mad

ep

un

ish

able

by

death

.(2

)N

op

erso

nm

ayb

ese

nte

nce

dto

life

im­

pris

OIl

llle

nto

rto

con

fin

emen

tfo

rm

ore

tha

nte

ny

ears

,ex

cep

tb

yth

eco

ncu

rren

ceo

fth

ree­

fou

rth

so

fth

em

embe

rsp

rese

nt

at

the

tim

eth

ev

ote

ista

ken

.(3

)A

llo

ther

sen

ten

ces

sh

all

be

det

erm

ined

by

the

con

curr

ence

of

two

-th

ird

so

fth

em

embe

rsp

rese

nt

at

the

tim

eth

ev

ote

ista

ken

.(c

)A

llo

ther

qu

est

ion

sto

be

dec

ided

by

the

mem

­b

ers

ot

ag

en

era

lo

rsp

ecia

lco

urt

-mart

ial

shall

be

det

enn

ined

by

am

ajo

rity

vo

te.

Ati

ev

ote

on

ach

alle

ng

ed

isq

uali

fies

the

mem

ber

chal

len

ged

.A

tie

vo

teo

na

mo

tio

nfo

ra

fin

din

go

fn

ot

gu

ilty

or

on

am

oti

on

rela

tin

gto

the

qu

est

ion

of

the

accu

sed

ts

san

ity

isa

det

e:n

n1

nat

ion

ag

ain

stth

eac

cuse

d.

Ati

ev

ote

on

any

oth

er

qu

est

ion

isa

det.

el'll

l1na

tion

infa

vo

rQ

fth

eac

cuse

d.

1854

.A

rt.

54.

Rec

ord

of

tria

l.(a

)E

ach

gen

era

lco

urt

--.r

tial

shall

kee

pa

sep

ara

tere

co

rdo

fth

ep

roce

edin

gs

of

the

tria

lo

fea

chca

seb

rou

gh

tb

efo

reit

,an

dth

ere

co

rdsh

all

be

au

then

ticate

db

ytb

esi

gn

atu

res

of

the

pre

sid

en

tan

dth

ela

wo

ffic

er.

If

the

reco

rdca

nn

ot

be

au

then

ticate

db

yeit

her

the

pre

sid

en

to

rth

ela

wo

ffic

er,

by

reas

on

of

his

death

,d

isab

ilit

y,

or

abse

nce

,it

shall

be

sig

ned

by

am

embe

rin

lieu

of

him

.If

bo

thth

ep

resi

den

tan

dth

ela

wo

ffic

er

are

un

­av

ail

ab

lefo

ran

yo

fth

ose

reaso

ns,

the

reco

rd~

be

au

then

ticate

db

yt"W

Om

embe

rs.

(b)

Eac

hsp

ecia

lan

ds\.

llllll

l8.l'Y

co

urt

-mart

ial

shall

kee

pa

sep

ara

tere

co

rdo

fth

ep

roce

edin

gs

inea

chcase

,an

dth

ere

co

rdsh

all

co

nta

inth

em

att

er

and

shall

.b

eau

then

ticate

din

the

man

ner

req

uir

ed

by

such

reg

ula

tio

ns

as

the

Pre

sid

en

tm

ayp

resc

rib

e.

•5

•A

rt.

5•

Rec

ord

of

tria

l.a

Eac

hco

urt

­lI

Brt

ial

shall

mak

e.a

sep

ara

tere

co

rdo

fth

epr

o":

ceed

ing

so

f·t

he

tria

lo

fea

chca

seb

rou

gh

tb

e­

fore

it.

Are

co

rdo

fth

ep

roce

edin

gs

of

atr

ial

inw

hic

hth

ese

nte

nce

.ad

jud

ged

inclu

des

ab

ad-c

on

du

ctd

isch

arg

eo

ris

mor

eth

an

that

wh

ich

coul

g,b

ead

jUd

ged

by

asp

ecia

lco

urt

-mart

ial

shall

co

nta

ina

can

pJ.

ete

ver

bat

imac

cou

nt

of

the

pro

ceed

ing

san

dte

stim

on

yb

efo

reth

eco

urt

,an

dsh

all

be

au

then

ticate

din

such

man

ner

as

may

be

req

uir

ed

by

reg

ula

tio

ns

whi

chth

eP

resi

den

tm

ayp

resc

rib

e.

All

oth

er

reco

rds

of

tria

lsh

all

con

­ta

insu

chm

att

er

and

be

-au

then

tica

ted

insu

chm

anne

ras

may

be

req

uir

ed

by

reg

ula

tio

ns

wh

ich

the

Pre

sid

en

tm

ayp

resc

rib

e.

(b)

Aco

py

of

the

reco

rdo

fth

ep

roce

edin

gs

of

ach

gen

era

lan

dsp

ecia

lco

urt

-mart

ial

shall

be

g1

ven

toth

eac

cuse

das

soo

nas

au

then

ticate

d.

It

av

erb

atim

reco

rdo

ftr

ial

by

gen

era

lco

urt

-

54.

Art

.54

.R

eco

rdo

ftr

ial.

(a)

Eac

h.

gen

era

lan

dsp

ecia

lco

urt

-mart

ial

shall

kee

pa

sep

ara

tere

co

rdo

fth

ep

roce

edin

gs

.o

fth

etr

ial

of

each

case

bro

ug

ht

befo

reit

,an

dth

ere

co

rdsh

all

be

au

then

ticate

db

yth

esi

gli

atu

res

of

the

sen

ior

mem

ber

and

the

law

off

icer.

If

the

reco

rdcan

­n

ot

be

au

then

ticate

db

yeit

her

the

sen

ior

mem

ber

or

the

law

off

icer,

by

reas

on

of

his

death

,d

isab

ilit

y,

or

abse

nce

,it

shall

be

sig

ned

by

am

embe

rin

lieu

of

him

.If

bo

thth

ese

nio

rm

embe

rp

rese

nt

at

the

tria

lan

dth

ela

wo

ffic

er

are

unav

a:1l

8.bl

efo

ran

yo

fth

ose

reaso

ns,

the

:r:e

cord

sh

all

be

au

then

ticate

db

yt1

iOm

embe

rs.

..(b

)E

ach

sum

mar

yco

urt

-mart

ial

shall

keep

ase

para

tere

co

rdo

fth

ep

roce

ed­

ing

sin

each

case

·,an

dth

ere

co

rdsh

all

Jr

(c)

Aco

pyo

fth

ere

co

rdo

fth

ep

roce

edin

gs

of

each

gen

eral

.an

dsp

ecia

lco

urt

-mart

ial

shall

be

giv

ento

the

accu

sed

as

soon

as

it

isau

then

ti­

cate

d.

10

05

.A

rt.

b5

.D

is"P

Osi

tion

of

reco

rds

aft

er

re­

vie

wb

yth

eco

nv

enin

gau

tho

rity

.(a

)W

hen

the

con

ven

ing

au

tho

rity

has

tak

enfi

nal

acti

on

ina

gen

eral

.co

urt

-mart

ial

case

,h

esh

all

sen

dth

een

tire

reco

rd,

inclu

din

gh

isacti

on

ther

eon

and

the

op

inio

no

ro

pin

ion

so

fth

esta

ffju

dg

ead

­v

oca

teo

rl.

egal

.o

ffic

er,

toth

eap

pro

pri

ate

Jud

ge

Adv

ocat

eG

ener

al..

.(b

)If

the

sen

ten

ceo

fa

specia

lco

urt

-mart

ial

as

app

rov

edb

yth

eco

nv

enin

gau

tho

rity

incl

ud

esa

bad

-co

nd

uct

dis

char

ge,

wh

eth

ero

rn

ot

susp

end

ed,

the

reco

rdsh

all.

be

sen

tto

the

off

icer

ex

erc

is­

ing

gen

eral

.co

urt

-mart

ial

juri

sdic

tio

no

ver

the

cOlll

lllaD

dto~

rev

iew

edin

the

sam

em

anne

ras

are

co

rdo

ftr

ial

by

gen

eral

.co

urt

-mart

ial

or

dir

ect1

.yto

the

ap

pro

pri

ate

Jud

ge

Adv

ocat

eG

en­

eral

.to

be

rev

iew

edb

ya

bo

ard

of

rev

iew

.If

the

sen

ten

ceas

app

rov

edb

yan

off

icer

ex

erc

isin

gg

ener

al.

co

urt

-mart

ial

juri

sdic

tio

nin

clu

des

ab

ad-c

on

du

ctd

isch

arg

e,w

het

her

or

no

tsu

spen

ded

,th

ere

co

rdsh

all.

be

sen

tto

the

app

rop

riat

eJu

dge

Adv

ocat

eG

ener

al.

tob

ere

vie

wed

by

ab

oar

do

fre

vie

w.

(c)

All

oth

er·

specia

lan

dsu

mm

ary

co

urt

-mart

ial

reco

rds

sha1

.lb

ere

vie

wed

by

aju

dg

ead

vo

cate

of

the

Arm

yo

rth

eA

irF

orc

e,a

1.aw

specia

list

of

the

Nav

yIo

ra

1.aw

specia

list

or

1.aw

yer

of

the

Co

ast

Gua

rdo

r·D

epar

tmen

to

fth

eT

reas

ury

Ian

dsh

all.

be

tran

smit

ted

and

dis

po

sed

of

asth

eS

ecre

tary

con

cern

edm

ayp

resc

rib

eb

yre

gu

lati

on

.

Bti6

6.A

rt.

66

.R

evie

wb

yb

oar

do

fre

vie

w.

(a)

E&

chJu

dge

Adv

ocat

eG

ener

al.

shall

co

nst

itu

tein

his

off

ice

one

.or

mor

eb

oard

so

fre

vie

wI

mart

ial

isn

ot

req

uir

ed

by

sub

sect

ion

(a),

the

accu

sed

may

bu

ysu

Ch

are

cord

un

der

reg

u­

1.a

tio

ns

wh

ich

the

Pre

sid

en

tm

ayp

resc

rib

e.

**

**

Itlb

5.

Art

.b

5.

Dis

po

siti

on

of

reco

rds

af'

ter

rev

iew

by

the

con

ven

ing

au

tho

rity

.(a

)W

hen

the·

con

ven

ing

au

tho

rity

has

tak

enfi

nal

ac­

tio

nin

ag

ener

al.

co

urt

-mart

ial

case

and

the

sen

ten

ceap

pro

ved

by

him

inclu

des

ab

ad

­co

nd

uct

dis

char

ge

or

ism

ore

tha

nth

at

wh

ich

cou

ldh

ave

bee

nad

jud

ged

by

asp

ecia

lco

urt

­m

art

ial,

he

shall

sen

dth

een

tire

reco

rd,

in­

clu

din

gh

isacti

on

ther

eon

and

the

op

inio

no

ro

pin

ion

so

fth

esta

ffju

dg

ead

vo

cate

or

l.eg

al.

off

icer,

toth

eap

pro

pri

ate

Jud

ge

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ocat

eG

ener

al•.

(b)

Ifth

ese

nte

nce

of

asp

ecia

lco

urt

-mart

ial

asap

pro

ved

by

the

con

ven

ing

au

tho

rity

inclu

des

ab

ad-c

on

du

ctd

isch

arg

e,w

het

her

or

no

tsu

s­p

end

ed,

the

reco

rdsh

all.

be

sen

tto

the

off

'i­

cer

ex

erc

isin

gg

ener

al.

co

urt

-mart

ial

juri

sdic

­ti

on

ov

erth

eco

mm

and

tob

ere

vie

wed

inth

esa

me

man

ner

as

are

cord

of

tria

lb

yg

ener

al.

co

urt

-mart

ial

or

dir

ect1

.yto

the

ap

pro

pri

ate

IJud

ge

Adv

ocat

eG

ener

al..

If

the

sen

ten

ceas

app

rov

edb

yan

off

icer

ex

erc

isin

gg

ener

al.

co

urt

-mart

ial

juri

sdic

tio

nin

clu

des

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ad­

con

du

ctd

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arg

e,w

het

her

or

no

tsu

spen

ded

,th

ere

co

rdsh

all

be

sen

tto

the

ap

pro

pri

ate

Judg

eA

dvoc

ate

Gen

eral

..(c

)A

llo

ther

reco

rds

of

tria

lb

yco

urt

­m

art

ial

shap

.b

ere

vie

wed

by

aju

dg

ead

vo

cate

,o

r1.

awye

ro

fth

eA

rmy

or

Air

Fo

rce

or

a1.

awsp

ecia

list

or

1.aw

yer

of

the

Nav

y,C

oas

tG

uar

d,

or

Dep

artm

ent

of

the

Tre

asu

ry,

and

shal

l.b

etr

an

smit

ted

and

dis

po

sed

of

as

the

Secre

tary

con

cern

edm

ayp

resc

rib

eb

yre

gu

­1

.ati

on

s.

8866

.A

rt.

66.

Rev

iew

by

bo

ard

of

rev

iew

.*

**

-l!'

(b)

The

Jud

ge

Adv

ocat

eG

ener

al.

shall

·re

fer

con

tain

the

matt

er

and

sha1

.lb

eau

then

ticate

din

the

man

ner

req

uir

ed

by

such

reg

u1

.ati

on

sas

the

Pre

sid

en

tm

ayp

resc

rib

e.

**

**

1Itl6

5.A

rt.

65

.D

isp

osi

tio

no

fre

cord

saft

er

rev

iew

by

the

con

ven

ing

au

tho

rity

.*

**

*(b

)A

llsp

ecia

lan

dsu

mm

ary

co

urt

-mart

ial

reco

rds

shall

be

rev

iew

edb

ya

jud

ge

adv

oca

teo

fth

eA

rmy

or

the

Air

Fo

rce,

a1.

awsp

ecia

list

of

the

Nav

y,o

ra

1.aw

specia

list

or

1.aw

yer

of

the

Co

ast

Gua

rdo

rD

epar

tmen

to

f-t

heT

reas

ury

,an

dsh

all

be

tran

smit

ted

and

dis

po

sed

of

as

the

Secre

tary

con

cern

edm

ayp

resc

rib

eb

yre

gu

1.a

tio

n.

.186

6.A

rt.

66.

Rev

iew

by

bo

ard

of

rev

iew

.(a

)T

heS

ecre

tary

of

Def

ense

shall

co

nst

itu

teon

eo~

mor

eb

oar

ds

of.

rev

iew

for

the

ann

ed/3

each

cail

pose

do

fn

ot

less

than

thre

eco

mm

issi

oned

off

icers

or

civ

ilia

ns,

each

of

who

mm

ust

be

am

em­

ber

of

the

bar

of

aF

eder

alco

urt

or

of

the

hig

hest

co

urt

of

aS

tate

.(b

)T

heJu

dg

eA

dvoc

ate

Gen

eral

shall

refe

rto

ab

oard

01'

rev

iew

the

reco

rdin

ever

yca

seo

ftr

ial

by

co

urt

-mart

ial

inw

hich

"the

sen

ten

ce,

as

app

rov

ed,

aff

ects

ag

ener

alo

rfl

ag

off

'1ce

ro

rex

ten

ds

"to

death

,d

ism

1ss

alo

fa

com

mis

sion

edo

ff'1

cer,

cad

et,

or

mid

­sh

ipD

an,

dis

ho

no

rab

leo

rb

ad-c

on

du

ctd

isch

arg

e,o

rco

nf'in

emep

,tfo

ron

ey

ear

or

mo

re.

(c)

Ina

case

refe

rred

toit

,th

eb

oar

do

fre

vie

wm

ayact

on

lyw

ith

resp

ect

toth

efi

nd

ing

and

sen

ten

ceas

app

rov

edb

yth

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nv

enin

gau

tho

rity

.It

may

aff'

1rm

on

lysu

chfi

nd

ing

so

fg

ull

ty,

and

the

sen

ten

ceo

rsu

chp8

.rt

or

amou

nto

fth

ese

nte

nce

,as

it

fin

ds

co

rrect

inla

wan

dfa

ct

and

det

erm

ines

,on

the·b

asi

so

fth

een

tire

reco

rd,

sho

uld

:be

ap

­p

rov

ed.

Inco

nsi

der

ing

the

reco

rd,

itm

ayw

eigh

the

evid

ence

,ju

dg

eth

ecre

dib

ilit

yo

fw

itn

esse

s,an

dde

texm

ine

con

tro

ver

ted

qu

esti

on

so

ffa

ct,

reco

gn

izin

gth

at

the

tria

lco

urt

saw

and

hea

rdth

ew

itn

esse

s.(d

)If

the

bo

ard

of

rev

iew

sets

asi

de

the

fin

din

gs

and

sen

ten

ce,

itm

ay,

exce

pt

whe

reth

ese

ttin

gasi

de

isb

ased

onla

ck

of

suff

'1ci

ent

evid

ence

inth

ere

cord

tosu

pp

ort

the

fin

din

gs,

ord

er

are

­h

eari

ng

.If

it

sets

asi

de

the

fin

din

gs

and

sen

ten

cean

dd

oes

no

to

rder

are

heari

ng

,it

shall

·ord

erth

e.t

the

char

ges

be

dis

mis

sed

.(e

)T

heJu

dge

Adv

ocat

eG

ener

alsh

all

,u

nle

ssth

ere

isto

be

furt

her

acti

on

by

the

Pre

sid

en

t,th

eS

ecre

tary

con

cern

ed,

or

the

Co

urt

ofMili~

tary

Ap

pea

ls,

·in

stru

ct

the

con

ven

ing

au

tho

rity

tota

ke

acti

on

inac

cord

ance

wit

hth

ed

ecis

ion

of

the

bo

ard

of

rev

iew

.If

the

bo

ard

of

rev

iew

has

ord

ered

are

heari

ng

bu

tth

eco

nv

enin

gau

­th

ori

tyfi

nd

sarehe~ng

im,p

ract

icab

le,

he

may

dis

m1

ssth

ecb

arg

es.

(f')

The

Judg

eA

dvoc

ates

Gen

eral

shall

pre

scri

be

unif

ol"/

Jlru

les

of

pro

ced

ure

for

bo

ard

so

fre

vie

wan

dsh

all

mee

tp

eri

od

icall

yto

form

ula

tep

oli

cie

s

toa

bo

ard

of

rev

iew

each

reco

rdo

ftr

ial

by

co

urt

-mart

ial

inw

hich

the

app

rov

edse

nte

nce-­

(1)

exte

nd

sto

dea

thj

(2)

aff

ects

ag

ener

alo

rfl

ag

otf

'1ce

rj(3

)ex

ten

ds

toth

edi

Sll

l1ss

alo

fa

com

mis

­si

on

edo

ff'1

cer

or

cad

eto

rm

idsh

ipD

anj

or

(4)

inC

lud

esa

dis

ho

no

rab

leo

rb

ad-c

on

­d

uct

dis

char

ge

or

con

fin

emen

tfo

ron

ey

ear

or

mo

re,

un

less

the

accu

sed

ple

aded

gu

ilty

toea

cho

ffen

seo

fw

hich

he

was

fou

nd

gu

ilty

.

****

(e)

The

Judg

eA

dvoc

ate

Gen

eral

may

dis

mis

sth

ech

arg

eslo

Ihen

ever

the

bo

ard

of

rev

iew

has

ord

ered

are

hea

rin

gan

dh

efi

nd

sa

reh

eari

ng

imp

racti

cab

le.

Oth

erw

ise,

the

JUdg

eA

dvoc

ate

Gen

eral

shall

,u

nle

ssth

ere

isto

be

furt

her

acti

on

by

the·

Pre

sid

en

t,th

eS

ecre

tary

con

­ce

rned

,o

rth

eC

ou

rto

fM

ilit

ary

Ap

pea

ls,

in­

stru

ct

the

con

ven

ing

au

tho

rity

tota

ke

acti

on

inac

cord

ance

wit

hth

ed

ecis

ion

of

the

bo

ard

of

rev

iew

.If

the

bo

ard

of

rev

iew

has

ord

ered

are

heari

ng

and

the

con

ven

ing

au

tho

rity

fin

ds

are

heari

ng

im,p

ract

icab

le,

he

may

diS

lll1

ssth

ech

arg

es.

**

**

forc

es,

exce

pt

that

whe

nth

eC

oas

tG

uard

isn

ot

op

erat

ing

asa

serv

ice

in·t

he

Nav

y,th

eS

ecre

tary

of

the

Tre

asu

rysh

all

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­sti

tute

one

or

mor

eb

oar

ds

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rev

iew

for

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Co

ast

Gua

rd.

Eac

hb

oar

do

fre

vie

wsh

all

be

com

pose

do

fn

ot

less

than

thre

eco

mm

issi

oned

off

icers

or

civ

ilia

ns,

each

of

who

mm

ust

be

am

embe

ro

fth

eb

ar

of

aF

eder

alco

urt

or

of

the

hig

hes

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urt

of

aS

tate

.A

com

mis

sion

edo

ffic

er

deta

iled

tose

rve

ona

bo

ard

of

rev

iew

shall

serv

eth

ereo

nu

nti

lre

liev

ed

ther

efro

mb

yth

eS

ecre

tary

who

co

nst

itu

ted

the

bo

ard

of

rev

iew

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dis

exem

ptfr

omth

ep

rov

isio

ns

of

secti

on

s30

31(c

),·

3031

(d),

8031

(c)

and

8031

(d)

of

this

titl

e.

An

off

'1ce

ro

fth

eN

avy

or

Mar

ine

Cor

psse

rvin

gon

ab

oar

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fre

vie

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all

be

eli

gib

lefo

rp

ro­

mo

tio

nw

ith

ou

t.r

egar

dto

the

req

uir

emen

tsfo

rse

ad

uty

or

fore

ign

serv

ice.

The

Secre

tary

,ho

wev

er,

may

est

ab

lish

bo

ard

so

fre

vie

ww

ith

ino

rw

ith

ou

tth

eU

nit

edS

tate

s.A

com

mis

sion

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cer

serv

ing

ona

bo

ard

of

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shall

be

rate

dfo

rfi

tness

,eff

icie

ncy

,an

dp

erfo

nn

ance

of

du

tyo

nly

by

the

Secre

tary

who

co

nst

itu

ted

the

bo

ard

of

rev

iew

.*

**

*

1'1

and

pro

ced

ure

inre

gard

tore

vie

wo

fco

urt

-m

art1

.al

case

sin

the

off

ices

of

the

JUdg

eA

dv

oca

tes

Gen

eral

.an

db

yb

oar

ds

of

rev

iew

.

1186

1.A

rt.

61.

Rev

iew

by

the

co

urt

of

Mil

itary

6867

.A

rt.

67.

Rev

iew

by

the

Co

urt

of'M

lll.

-18

61.

Art

.61

.R

evie

wb

yth

eC

ou

rto

fM

:ll1

tary

~.****

tw

App

ealS

.*

**

*~.****

dIn

an

yca

sere

vie

wed

by

it,

the

cou

rto

fM

ili-

(fA

fte

rit

has

acte

do

na

case

,th

eC

ou

rtd

Inan

yca

sere

vie

wed

by

it,

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Co

urt

of'

tary

Ap

pea

lsm

ayact

on1.

yw

ith

resp

ect

toth

eo

fM

ilit

ary

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pea

lsm

ayd

irect

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Ju

dg

eM

U1

tary

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pea

lsm

ayact

on

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ith

resp

ect

tofi

nd

ing

san

dse

nte

nce

as

app

rov

edb

yth

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nv

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gA

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ate

Gen

eral

tore

turn

the

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rdto

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fin

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gs

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ceas

app

rov

edb

yth

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tho

rity

and

as

affi

rmed

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set

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asin

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r-th

eb

oar

do

fre

vie

wfo

rfu

rth

er

rev

iew

inco

nv

enin

gau

tho

rity

and

as

affi

rmed

or

set

rect

inla

wb

yth

eb

oa

rd,o

fre

vie

w.

Ina

case

whi

chac

cord

ance

wit

hth

ed

ecis

ion

of

the

cou

rt.

asi

de

as

inco

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yth

eb

oar

do

fre

-th

eJU

dse

Adv

ocat

eG

ener

al.

ord

ers

sen

tto

the

Co

urt

The

Judg

eA

dvoc

ate

Gen

eral

may

dis

mis

sth

ev1

ew.

Ina

case

whi

chth

eJu

dge

Adv

ocat

eG

en-

of'

Mil

itary

Ap

pea

ls,

that

acti

on

nee

db

eta

ken

on

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arg

esw

hene

ver

the

Co

urt

of

M1l

1tar

TA

p-era

!o

rders

sen

tto

the

Co

urt

of

Mil!t

ary

Ap-

11th

resp

ect

toth

eis

sues

rais

ed

by

him

.In

aca

sep

eals

has

ord

ered

are

heari

ng

and

he

fin

ds

peals

,th

at

acti

on

nee

db

eta

ken

on

lyw

ith

rev

1ew

dup

onp

eti

tio

nof

'th

eac

cuse

d,

that

acti

on

are

heari

ng

imp

ract

icab

le.

Oth

e1"W

i.se,

un

-re

spect

toth

eis

sues

rais

ed

by

him

.In

aca

sen

eed

be

take

no

nly

wit

h'r

esp

ect

tois

sues

specif

ied

less

there

isto

be

furt

her

acti

on

by

the

rev1

ewed

upon

peti

tio

no

fth

eac

cuse

d,

that

ac-

inth

eg

ran

to

fre

vie

w.

The

Co

urt

of

Mil

itary

Ap-

Pre

sid

en

to

rth

eS

ecre

tary

con

cern

ed,

the

tio

nn

eed

be

tak

eno

nly

wit

hre

spect

tois

sues

peals

shall

tak

eacti

on

on

lyw

ith

resp

ect

tom

at-

Jud

ge

Adv

ocat

eG

ener

al..

shall

inst

ruct

the

specif

ied

inth

eg

ran

to

fre

vie

w.

The

Co

urt

of

ters

of'

law

.*

**

*co

nv

enin

gau

tho

rity

tota

ke

acti

on

inac-

M1l

1tar

;yA

pp

eals

may

aff

irm

on

lysu

chfi

nd

ing

s(f

')A

fterit

ha

sacte

don

acase

,th

eC

ou

rto

fco

rdsn

cew

ith

that

decis

ion

.If

'th

eco

urt

of'

gu

ilty

as

it

fin

ds

co

rrect

inla

wan

df'

act

MU

1ta

ryA

pp

eals

may

dir

ect

the

Jud

seA

dvoc

ate

has

ord

ered

are

heari

ng

,b

ut

the

con

ven

ing

and

det

erm

ines

,on

the

basi

sof

'th

een

tire

Gen

eral

.to

retu

rn·t

he

reco

rdto

the

bo

ard

of

re-

au

tho

rity

fin

ds

are

hea

rin

gim

pra

cti

cab

le,

reco

rd,

sho

uld

be

app

rov

ed.

Inco

nsi

der

ing

the

v1ew

for

furt

her

rev

1ew

inac

cord

ance

wit

hth

eh

em

ayd

ism

iss

the

char

ges

.*

**

*re

co

rd,

it

may

wei

ghth

eev

iden

ce,

JUdg

eth

ed

ecis

ion

of'

the

co

urt

.o

ther

wis

e,u

nle

ssth

ere

cre

dib

1l1

tyof

'w

itn

esse

s,an

dd

eter

min

eco

n-

isto

be

fUrt

her

acti

on

by

the

Pre

sid

en

to

rth

etr

ov

ert

ed

qu

esti

on

so

ffa

ct,

reco

gn

izin

gth

at

se

cre

tary

con

cern

ed,

the

Jud

ge

Adv

ocat

eG

ener

alth

etr

ial

cou

rtsa

w·a

nd

hea

rdth

ew

itn

esse

s.sh

all

inst

ruct

the

con

ven

ing

au

tho

rity

tota

ke

****

acti

on

inacco~ce

wit

hth

at

dec

isio

n.

Ifth

eco

urt

has

ord

ered

are

heari

ng

,b

ut

the

con

ven

ing

-u

tho

rity

fin

ds

are

heari

ng

imp

ract

icab

le,

he

may

Jill

ll1s

8th

ech

arg

es.*

**

*11

869.

Art

.69

.R

evie

win

the

off

ice

of

the

Jud

ge

6869

.A

rt.

69.

Rev

iew

inth

eo

ffic

eof

'th

e18

69.

Art

.69

.R

evie

win

the

off

ice

of'

the

Adv

ocat

eG

ener

al..

Ev

ery

reco

rdo

ftr

ial

by

gen

-JU

dge

Adv

ocat

eG

ener

al..

Ev

ery

reco

rdo

fJU

dge

Adv

ocat

eG

ener

al.

ei'8

1co

urt

-mart

ial,

inw

hich

there

bas

bee

na

tria

lb

yco

urt-

llU

!Xti

alfo

rwar

ded

toth

eNO

CHA

NG

Eti

ncl1

nso

fg

uil

tyan

da

sen

ten

ce,

the

ap

pell

ate

Judg

eA

dvoc

ate

Gen

eral

.u

nd

erse

cti

on

865.

rev

iew

of

whi

chis

no

to

ther

wis

ep

rov

ided

for

by

of

this

titl

e(a

rtic

le6

5),

the

ap

pell

ate

secti

on

866

of

this

titl

e(a

rtic

le66

),sh

all

be

rev

iew

of

whi

chis

no

to

ther

wis

ep

rov

ided

exam

1ned

inth

eo

ffic

eo

fth

eJu

dge

Adv

ocat

eio

rb

yse

cti

on

86~

or

866

of

this

titl

eo

ener

al..

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yp

art

of

the

fin

din

gs

or

sen

ten

ceart

icle

65o

r66

,sh

all

be

emm

:lne

clin

."

Ir

isf'

ound

un

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po

rted

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w,

or

ifth

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dge

Adv

ocat

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ener

also

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ects

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ere

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shall

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iew

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ya

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ard

of

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iew

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cord

ance

wit

hse

cti

on

866

of

this

titl

e(a

rtic

le6

6),

bu

1;

inth

at

even

tth

ere

may

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nofu

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er

re­

vie

wb

yth

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ou

rto

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ilit

ary

App

eals

exce

pt

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der

secti

on

86

7(b

)(2

)o

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isti

tle

(ar­

ticle

67

(b)

(2»

.

1187

1.A

rt.

71

.E

xec

uti

on

of'

sen

ten

ce;

susp

en­

sie

ad

sen

ten

ce.

(a)

No

co

urt

-mart

ial

sen

ten

ceex

ten

din

gto

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tho

rin

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ga

gen

eral

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icer

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ecu

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til

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esh

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ese

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ount

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dm

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art

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the

sen

ten

ce,

asap

pro

ved

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him

,ex

­cep

ta

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nte

nce

.(b

)N

ose

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nce

exte

nd

ing

toth

ed

ism

issa

lo

fa

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mis

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ffic

er_

(oth

er

than

ag

en­

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lo

rfl

ag

of'

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,cad

et,

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ship

man

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til

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ary

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ign

ated

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h1II

l.H

esh

all.

app

rov

eth

ese

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nce

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ount

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­te

nce

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dm

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dth

eem

cu

tio

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ny.

part

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ten

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rov

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yh

im.

Inti

me

of

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or

nati

on

al

emer

gen

cy,

he

may

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tea

sen

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fd

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lto

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uct

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toan

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ed

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e.A

per

son

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ced

may

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req

uir

edto

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efo

rth

ed

ura

tio

no

fth

e'W

aro

rem

er­

gen

cyan

dsi

xm

onth

sth

ere

aft

er.

the

off

ice

of

the

Jud

ge

Adv

ocat

eG

ener

al.

Ifan

yp

art

of

the

fin

din

gs

or

sen

ten

ceis

fou

nd

un

sup

po

rted

inla

w,

the

Jud

seA

d­

vo

cate

Gen

eral

shal

l.eit

her

refe

rth

e.

reco

rdto

ab

oar

do

fre

vie

wfo

rre

vie

wu

nd

erse

cti

on

86

6o

fth

isti

'tle

(art

icle

66

)o

rta

ke

such

acti

on

inth

eca

seas

ab

oar

do

fre

vie

wm

ayu

nd

erse

cti

on

866

(c)

and

(d)

of

this

titl

.e(a

rtic

le66

(c)

and

(d»

.If

'th

ere

co

rdis

rev

iew

edb

ya

bo

ard

of

rev

iew

,th

ere

will.

be

nofu

rth

er

rev

iew

by

the

Co

urt

of

Mil

itary

App

eals

exce

pt

un

der

secti

on

86

7(b

)(2

)o

fth

isti

tle

(art

icle

67(b

)(2»~

1187

1.A

rt.

71

.E

xec

uti

on

of

sen

ten

ce;

sus­

pen

sio

no

fse

nte

nce

.(a

)N

oco

urt

-mart

ial

sen

ten

ceex

ten

din

gto

dea

tho

rin

vo

1v1

ng

ag

ener

alo

rn

ag

off

icer

may

be

exec

ute

du

n­

t11

app

rov

edb

yth

eP

resi

den

t.H

esh

all

ap

­p

rov

eth

ese

nte

nce

or

such

part

,am

ount

,o

rcc

min

uted

form

of

the

sen

ten

ceas

he

sees

fit

,an

dm

aysu

spen

dth

eex

ecu

tio

no

fth

ese

nte

nce

or

any

part

of

the

sen

ten

ce,

as

app

rov

edb

yh

im,

exce

pt

ad

eath

"sen

ten

ce.

No

accu

sed

may

accr

ue

pay

or

al10

wan

ces

aft

er

the

con

ven

ing

au

tho

rity

app

rov

esa

sen

ten

ceo

fd

eath

,u

n1

ess

that

sen

­te

nce

1s

set

asi

de

or

dis

app

rov

edan

da

sen

­te

nce

of

dea

this

no

tad

jud

sed

by

ano

ther

co

urt

aft

er

are

heari

ng

or

new

tria

l.(b

)T

hat

po

rtio

no

fa

sen

ten

ceex

ten

din

gto

the

dis

mis

sal

of

aco

mm

issi

oned

off

icer

or

aca

det

or

mid

shi]

;lllB

nm

ayn

ot

be

exec

ute

du

nti

l.ap

pro

ved

by

the

Secre

tary

con

cern

ed,

or

such

Und

erse

cre

­ta

ryo

rA

ssis

tan

tse

cre

tary

as

may

'bed

esig

nat

edb

yh

im.

He

shall

app

rov

eth

ese

nte

nce

or

such

part

,am

ount

,o

rC

OIII

IIUte

df'o

rmo

fth

ese

nte

nC

eas

he

sees

fit

,an

dm

aysu

spen

dth

eex

ecu

tiea

of'

an

y.:P

&rt

of

the

sen

ten

ceas

app

rov

edb

yh

im.

Inti

me

of'

'War

or

nat

ion

aJ.

emer

genc

yh

em

ayC

all1

llllte

ase

nte

nce

of

dis

mis

sal

tore

du

cti

on

toa

ny

en

­li

ste

dg

rad

e.

Ap

erso

nso

rec1

u.ce

dm

ayb

e

NOCH

ANGE

/6

(c)

No

sen

ten

cew

hich

inclu

des,

un

susp

end

ed,

ad

ish

on

ora

ble

or

bad

-co

nd

uct

dis

char

ge,

or

con

fin

emen

tf'

or

one

yea

ro

rm

ore,

may

be

exe­

cute

du

nti

laf

'fir

med

by

ab

oar

dof

're

vie

wan

d,

inca

ses

rev

iew

edb

yit

,th

eC

ou

rtof

'M

illt

ary

App

ea1.

s.(d

)A

ll.

oth

er

co

urt

-mart

ial

sen

ten

ces,

un

less

susp

end

ed,

may

be

ord

ered

exec

ute

db

yth

eco

nv

en­

ing

au

tho

rity

whe

nap

pro

ved

by

him

.T

heco

nv

en­

ing

.au

tho

rity

.my

susp

end

the

exec

uti

on

of'

any

sen

ten

ce,

exce

pt

ad

eath

sen

ten

ce.

1187

3.A

rt.

73.

Peti

tio

nf'

or

ane

wtr

ial.

At

an

yti

me

wit

hin

one

yea

raf'

ter

app

rov

alb

yth

eco

n­

ven

ing

au

tho

rity

of'

aco

urt

-mart

ial

sen

ten

cew

hic

hex

ten

ds

tod

eath

,d

ism

issa

l,d

ish

on

ora

ble

or

bad

-co

nd

uct

dis

char

ge,

or

con

fin

emen

tf'

oro

ne

year

or

mo

re,

the

accu

sed

may

peti

tio

nth

e.Ju

dg

eA

dvoc

ate

Gen

eral

f'or

ane

wtr

ial

onth

eg

rou

nd

of

new

lyd

isco

ver

edev

iden

ceo

rfr

aud

on

the

co

urt

.If

the

accu

sed

'sca

seis

pen

d­

ing

bef

ore

the

bo

ard

of'

rev

iew

or

bef

'ore

the

Cou

rtof

'M

ilit

ary

Ap

pea

ls,

the

Jud

ge

Adv

ocat

eG

ener

alsh

all

ref'

er

the

peti

tio

nto

the

bo

ard

or

co

urt

,as

the

case

may

be,

for

acti

on

.o

ther

wis

eth

eJU

dge

Adv

ocat

eG

ener

alsh

all

act

upon

the

peti

tio

n.

req

uir

ed

tose

rve

f'or

the

du

rati

on

of'

the

war

or

emer

genc

yan

dsi

xm

on

thst

here

af'

ter.

(c)

Th

atp

ort

ion

of'

ase

nte

nce

exte

nd

ing

tod

ish

on

ora

ble

or

bad

-co

nd

uct

dis

char

ge

may

no

tb

eex

ecu

ted

un

til

app

rov

edb

yth

eJu

dge

Adv

o­cate

Gen

eral

or

af'f

'irm

edb

ya

bo

ard

of'

rev

iew

,as

the

case

may

be,

and

,in

case

sre

vie

wed

by

it,

af'f

irm

edb

yth

eC

ou

rtof

'M

ilit

ary

Ap

pea

ls.

(d)

All

oth

er

co

urt

-mart

ial

sen

ten

ces

and

po

r­ti

on

sof

'se

nte

nce

s,u

nle

sssu

spen

ded

,m

ayb

eo

rder

edex

ecu

ted

by

the

con

ven

ing

au

tho

rity

whe

nap

pro

ved

by

him

.T

heco

nv

enin

gau

tho

rity

may

susp

end

the

exec

uti

on

of'

any

sen

ten

ce,

ex

­ce

pt

ad

eath

sen

ten

ce.

1187

3.A

rt.

73.

Peti

tio

nfo

ra

new

tria

l.A

tan

yti

me

wit

hin

two

yea

rsaft

er

app

rov

alb

yth

eco

nv

enin

gau

tho

rity

of

aco

urt

-mart

ial

sen

ten

cew

hich

exte

nd

sto

dea

th,

dis

mis

sal,

dis

ho

no

rab

leo

rb

ad-c

on

du

ctd

isch

arg

e,o

rco

nfi

nem

ent

for

one

yea

ro

rm

ore

,th

eac

cuse

dma

yp

eti

tio

nth

eJu

dg

eA

dvoc

ate

Gen

eral

for

ane

wtr

ial

onth

egr

ound

of

new

lyd

isco

ver

edev

iden

ceo

rfr

aud

onth

eco

urt

.If

the

ac­

cu

sed

'sca

seis

pen

din

gb

ef'o

reth

eb

oar

do

fre

vie

wo

rb

efo

reth

eC

ou

rto

fM

ilit

ary

Ap­

peals

,th

eJu

dge

Adv

ocat

eG

ener

alsh

all

re­

fer

the

peti

tio

nto

the

bo

ard

or

co

urt

,as

the

case

may

be,

for

acti

on

.T

heb

oar

do

fre

vie

wo

rth

eC

ou

rto

fM

ilit

ary

App

ealS

,as

the

case

may

be,

shall

det

erm

ine

wh

eth

era

new

tri8

.l,

inw

hole

or

inp

art

,sh

ou

ldb

eg

ran

ted

or

shall

tak

eap

pro

pri

ate

acti

on

un

der

secti

on

866

or

867

of

this

titl

e(a

r­ti

cle

66o

r67

),re

specti

vely

.o

ther

wis

e,th

eJu

dge

Adv

ocat

eG

ener

alm

ayg

ran

ta

new

tria

lin

who

leo

rin

part

or

may

vac

ate.

or

mo

dif

yth

efi

nd

ing

san

dse

nte

nce

inw

hole

or

inp

art

.

NOCH

ANGE

1876

.A

rt.

76.

Fin

al:1

tyo

fp

roce

edin

gs,

fin

d­

ing

s,an

dse

nte

nce

s.T

heap

pell

ate

rev

iew

of

reco

rds

of

tria

lp

rov

ided

by

this

ch

ap

ter,

the

pro

ceed

ing

s,f1

nd

ing

s,an

dse

nte

nce

so

fco

urt

s­m

art

ial

as

app

rov

ed,

rev

iew

ed,

or

a:ff

'i:nn

edas

req

uir

ed

by

this

ch

ap

ter,

and

all

dis

mis

saJ.

san

dd

isch

arg

escarr

ied

into

exec

uti

on

un

der

sen

ten

ces

by

co

urt

s-m

art

ial

foll

ow

ing

app

rov

al.,

rev

iew

,o

ra1

'1'ir

ms.

tion

as

req

uir

ed

by

this

ch

ap

ter,

are

fin

al.

and

con

cJ.u

siv

e.O

rder

sp

ub

lish

ing

the

pro

­ce

edin

gs

of

cou

rts-

ma.

rtia

J.an

daJ

.lacti

on

tak

enp

urs

uan

tto

tho

sep

roce

edin

gs

are

bin

din

gup

ona

lld

epar

tmen

ts,

co

urt

s,ag

en

cie

s,an

do

:ff'

icer

sof

-th

eU

nit

edS

tate

s,su

bje

ct

on

lyto

acti

on

up

­o

na

peti

tio

nfo

ra

new

tria

J.as

pro

vid

edin

sec­

tio

n81

3o

fth

isti

tle

(art

icJ.

e13

)an

dto

acti

on

by

the

secre

tary

con

cern

edas

pro

vid

edin

secti

on

814

of

this

titl

e(a

rtic

le1

4),

and

the

au

tho

rity

of

the

Pre

sid

en

t.

1895

.A

rt.

95.

Resi

stan

ce,

bre

ach

of

arr

est,

and

esca

pe.

An

yp

erso

nsu

bje

ct

toth

isch

apte

rw

hore

sis

tsap

pre

hen

sio

no

rb

reak

sarr

est

or

who

es­

cap

esf'

raa

cust

od

yo

rco

nfi

nem

ent

shall

be

pu

n­

ish

ed

as

aco

urt

-mart

ial

may

dir

ect.

1896

.A

rt.

96.

No

nca

np

lian

cew

ith

pro

ced

ura

lru

les.

An

yp

erso

nsu

bje

ct

toth

isch

apte

rw

ho--

(1)

isre

spo

nsi

ble

for

un

nec

essa

ryd

elay

inth

ed

isp

osi

tio

no

fan

yca

seo

fa

per

son

accu

sed

of

ano

ffen

seu

nd

erth

isch

ap

ter;

or

(2)

know

:Lng

.l.y

and

inte

nti

on

all

yfa

ils

toen

­fo

rce

or

com

ply

wit

han

yp

rov

isio

no

fth

isch

ap­

ter

reg

ula

tin

gth

ep

roce

edin

gs

befo

re,

du

rin

g,

or

aft

er

tria

lo

fan

accu

sed

;sh

all

be

pu

nis

hed

as

aco

urt

-mart

ial

may

dir

ect.

NOCH

ANGE

1i18

95.

Art

.95

.R

esis

tan

ce,

bre

ach

of

arr

est,

and

esca

pe.

Any

per

son

sub

ject

toth

isch

ap­

ter

who

resis

tsap

pre

hen

sio

no

r.b

reak

sar­

rest

or

who

esca

pes

fro

mp

hy

sical

rest

ra.1

nt

law

full

yim

pose

dsh

all

be

pu

nis

hed

as

aco

urt

-mart

ial

may

dir

ect.

NOCH

ANGE

1816

.A

rt.

16.

Fin

ali

tyo

fp

roce

edin

gs,

fin

d­

ing

s,

and

sen

ten

ces.

The

ap

pell

ate

rev

iew

of

reco

rds

of

tria

lp

rov

ided

by

this

ch

ap

ter,

the

pro

ceed

ing

s,fi

nd

ing

s,an

dse

nte

nce

so

fco

urt

s­m

art

ial

as

app

rov

ed,

rev

iew

ed,

or

affi

:nn

edas

req

uir

ed

by

this

ch

ap

ter,

and

aud

ism

issa

lsan

dd

isch

arg

escarr

ied

into

exec

uti

on

un

der

sen

­te

nce

sb

yco

urt

s-m

art

ial

foll

ow

ing

app

rov

al.,

rev

iew

,o

raf

'f'i

rmat

ion

asre

qu

ired

by

this

chap

­te

r,are

fin

al

and

con

cJ.u

siv

e.O

rder

sp

ub

lish

­in

gth

ep

roce

edin

gs

of

co

urt

s-m

art

ial

and

all

acti

on

tak

enp

urs

uan

tto

tho

sep

roce

edin

gs

are

bin

din

gup

ona

lld

epar

tmen

ts,

co

urt

s,ag

en

cie

s,an

do

:ff'

icer

so

fth

eU

nit

edS

tate

s,su

bje

ct

on

­ly

toacti

on

up

on

ap

eti

tio

nfo

ra

new

tria

las

pro

vid

edin

secti

on

873

of

this

titl

e(a

r­ti

cJ.e

13

),to

acti

on

by

ase

para

tio

nre

vie

wb

oa

rdas

pro

vid

edin

secti

on

ll6

6o

fth

isti

t],e

.an

dto

acti

on

by

the

Secre

tary

con

cern

edas

pro

vid

edin

secti

on

814

of

this

titl

e(a

rtic

J.e

14

),an

dth

eau

tho

rity

of

the

Pre

sid

en

t.

NOCH

ANGE

118!?8

.Art

.96

.N

onco

mpl

ianc

ew

ith

pro

ced

ura

lru

les.

Any

per

son

sub

ject

toth

isch

ap

ter

wh

o-­

--rr

)is

resp

on

sib

lefo

ru

nn

eces

sary

del

ayin

the

dis

po

siti

on

of

any

case

of

ap

erso

nac­

cuse

do

fan

off

ense

un

der

this

ch

ap

ter;

(2)

know

ingl

yan

din

ten

tio

nall

yfa

ils

toen

forc

eo

rcan

ply

wit

han

yp

rov

isio

no

fth

isch

apte

rre

gu

lati

ng

the

pro

ceed

ing

sb

efo

re,

du

rin

g,

or

aft

er

tria

lo

fan

accu

sed

;2!

:(3

)re

fuse

so

rw

illf

llll

yn

eg

lects

toen

­fo

rce

orC~y

wit

hth

ep

rov

isio

ns

of

secti

on

814

la)

O:t

irB

titl

e;

shall

be

pu

nis

hed

asa

co

urt

-mart

ial

ma.y

dir

ect.

19

18

.A

rt.

ll8

.M

urd

er.

Any

per

son

sub

ject

toth

isch

apte

rw

ho,

wit

ho

ut

just

ific

ati

on

or

ex

­cu

se;

un

law

f'u

lly

kil

lsa

hum

anb

ein

g,

whe

nh

e--

(1)

has

ap

rem

edit

ated

des

ign

tok

ill;

(2)

inte

nd

sto

kil

lo

rin

flic

tg

reat

bo

dil

yh

arm

· .. (3)

isen

gag

edin

anact

whi

chis

inh

ere

ntl

yd

ang

ero

us

too

thers

and

evin

ces

aw

anto

nd

isre

-g

ard

of

hum

anli

fe;

or

.(~)

isen

gag

edin

the

perp

etr

ati

on

or

atte

mp

ted

perp

etr

ati

on

of

bu

rgla

ry,

sodo

my,

rap

e,

rob

ber

y,

or

agg

rav

ated

ars

on

;is

gu

ilty

of

mu

rder

,an

dsh

all

sutt

er

such

pu

n­

ish

men

tas

aco

urt

-mart

ial

may

dir

ect,

exce

pt

that

iffo

un

dg

uil

tyu

nd

ercl

ause

(1)

or

(~),

he

shall

suff

er

dea

tho

rim

pri

son

men

tfo

rli

feas

aco

urt

­m

art

ial

may

dir

ect.

8920

.A

rt'.

l2O

.R

ape

and

carn

al

know

ledg

e.(a

)A

nyp

erso

nsu

bje

ct

toth

isch

ap

ter

who

cOlll

lllits

anact

of

sex

ual

inte

rco

urs

ew

ith

afe

mal

en

ot

his

wif

e,

by

forc

ean

dw

ith

ou

th

er

con

sen

t,is

gu

ilty

of

rap

ean

dsh

all

be

pu

nis

hed

by

dea

tho

rsu

cho

ther

pu

nis

hm

ent

as

aco

urt

-mart

ial

may

dir

ect.

(b)

Any

per

son

sub

ject

toth

isch

apte

rw

ho,

un

­d

er

circ

um

stan

ces

no

tam

ount

ing

tora

pe,

cOlll

lllit

san

act

of

sex

ual

inte

rco

urs

ew

itb

afe

mal

en

ot

his

wif

ew

hoh

asn

ot

att

ain

ed

the

age

of

six

teen

years

,is

gu

ilty

of

carn

al

know

ledg

ean

dsh

all

be

pu

nis

hed

as

aco

urt

-mart

ial

may

dir

ect.

(c)

Pen

etr

ati

on

,ho

wev

ersl

igh

t,is

suff

icie

nt

toca

np

lete

eit

her

of

these

off

en

ses.

19

3•

Art

.1

3•

Au

tho

rity

toad

min

iste

ro

ath

san

dto

act

as

no

tary

.*

**~

(b)

The

foll

ow

ing

per

son

son

acti

ve

du

tym

ayad

min

-is

ter

oat

hs

nec

essa

ryin

the

per

f'o

nn

snce

of

their

.d

uti

es:

NOCH

ANGE

NOCH

ANGE

NOCH

ANGE

19

18

.A

rt.

11

8.

Mur

der.

Any

per

son

sub

ject

toth

isch

ap

ter,

who

wit

ho

ut

just

ific

ati

on

or

excu

.se,

unJ.

awf'

ully

kil

lsa

hum

anb

ein

g,

whe

nh

e--

(1)

has

ap

rem

edit

ated

des

ign

tokill;

(2)

inte

nd

sto

kil

lo

rin

flic

tg

reat

bo

d­

ily

harm

;(3

)is

eng

aged

inan

act

whi

chis

inh

er­

en

tly

dan

ger

ou

sto

oth

ers

and

evin

ces

aw

anto

nd

isre

gard

of

hum

anli

fe;

or

(4)

isen

gag

edin

the

perp

etr

ati

on

or

at­

tem

pte

dp

erp

etr

ati

on

of

bu

rgla

ry,

sodo

my,

rap

e,

rob

ber

y,

or

agg

rav

ated

arso

n;

isg

uil

tyo

fm

urd

er,

and

shall

suff

er

such

pu

nis

hm

ent

as

aco

urt

-mart

ial

may

dir

ect,

ex

­ce

pt

thatif

fou

nd

gu

ilty

un

der

clau

se(1

)o

r(~),

he

shall

suff

er

dea

tho

rim

pri

son

men

tfo

rli

feas

aco

urt

-mart

ial

may

dir

ect.

No

per

son

shall

be

trie

db

yco

urt

-mart

ial

for

mu

rder

com

­m

itte

din

the

Un

ited

Sta

tes

inti

me

of

pea

ce.

19

20

.A

rt.

12

0.Ra.~

and

carn

al

know

ledg

e.(a

)A

nyp

erso

nsU

DJe

c1ro

this

chaP

ter

wo

cOm

mits

anact

of

sex

ual

inte

rco

urs

ew

ith

afe

mal

en

ot

his

wif

e,

by

forc

ean

dw

ith

ou

th

er

con

sen

t,is

gu

ilty

of

rap

ean

dsh

all

be

pu

nis

hed

by

dea

tho

rsu

cho

ther

pu

nis

hm

ent

as

aco

urt

-mart

ial

may

dir

ect.

No

per

son

shall

be

trie

db

yco

urt

­m

art

ial

for

rap

ecO

Olll

1tte

din

the

Un

ited

Sta

tes

inti

me

of

pea

ce.

**

**

19

36

.A

rt.

l36

.A

uth

ori

tyto

adm

inis

ter

oath

san

dto

act

as

no

tary

.*

**

*(b

)T

hefo

llo

win

gp

erso

ns

onacti

ve

du

tym

ayad

­m

inis

ter

oat

hs

nec

essa

ryin

the

perf

01'll

l8D

ceo

fth

eir

du

ties:

(1)

The

pre

sid

en

t,la

wo

ffic

er,

tria

lco

un

se1

,an

dass

ista

nt

tria

lco

un

sel

for

all

gen

eral

and

specia

lco

urt

s-m

art

ial.

**

**

(1)

Th

ela

wo

ffic

er,

tria

lco

un

sel,

and

ass

ista

nt

tria

lco

un

se1

for

all

gen

eral

and

specia

lco

urt

s-m

art

ial.

**

**

ANALYSIS OF ;rHE NONJUDICIAL PUNISHMENT SYSTEM IN THE IDUTED STA'['ES ARMY

1. Function of Nonjudicial Punishment. To provide commanders with a prompt and efficient method of disposing of minor offenses and infractions of discipline which occur within their command requiring some.punishment but which are not sufficiently serious to warrant trial by court-martial. Article 15, Uniform Code of Mi11tary Justice (10 USC 815 ), authorizes ~onnnanders to impose limited forms of disciplinary punishments directly upon members of their command without the inter­vention of courts-martial. The Manual for Courts-Martial, United States, 1951, urges commanding officers to resort to the1rpower under-Article 15 in every case in which pQnishment is deemed necessary and that article applies, unless it is clear that punishment under that article would not meet the ends of justice and discipline. The Manual admonishes superior commanders to restrain any tendency of subordinate commanders to resort unnecessarily to court-martial jurisdiction for the punish­ment of offenders.

2. Authority to Impose Non,judicial Punishment. "Any commanding officer" may impose:nonjudicial punishrnentupon"personnel of hi~ com­mand pursuant to A+ticle 15. Article 1(5) of the Code limits the term "commanding officer" to include only commissioned officers and although warrant officers may be assigned to COIDDl&"ld such units as Army bands they may not impose nonjudicial punishment since in the Army warrant officers are not commissioned. In the Army Article 15 may be exer­cised by commanding officers only--not by officers in charge.

3. Persons Subject to Nonjudicial Punishment. Officers, warrant officers, and other military personnel are subject to non~udicial pun­ishment imposed by their commander. Civilians are not amenable to nonjudicial punishment.

4. Offenses Punishable Under Article 15. Only in the case of "minor" offeilSes is the imposition of nonjudicial punishmep.t authorized by Article 15. The yardstick prescribed by the Manual for determining a "minor'! offense characterizes the term to include misconduct not in­volving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court -ril&rtial. Beyond this broad outline the determination of whethl'er an offense may be con­sidered minor depends on the +lature of the offense 1 the time and place of its commission, the person committing the offense and all the relevant circumstances.

5. Punishments Authorized Under Article 15. Generally there are three categories of" nonjUdicial punishments:

a. Those which apply equally to all military personnel. These inclUde admonitions, reprimands, withholding of privileges, and restrictions to limits of specif~ed area.s. The duration of any With. holding of privileges or restriction is limited to two consecutive weeks.

b. Those which apply only to officers and warr.ant officers. This category includes forfeiture of not to exceed one-half of one month I s pay and may be imposed only by an officer exercising general court-martial jurisdiction.

c. Those which apply to enlisted personnel. These include extra duties, not to exceed two hours a day for a period not in excess of two weeks, and reduction to t he next inferior grade. Commanders above the grade of captain may impose a one-pay-grade reduction under Article 15 of the Code (MCM, 1951, par. 131b(2)(c» for misconduct if the pay grade from which reduced is within the appointing authority of the commanding officer imposing the punishment or any Army commandar subordi­nate to him. A noncommissioned officer may not be reduced to a specialist grade under Article 15. Commanders below the grade of major may impose a one-pay-grade reduction under Article 15 of the Code (MCM, 1951), for misconduct upon privates first class and privates, E-2. (Par. 27b, Army Regulations 624-200,19 May 1958,) When imposed upon a person attached or embarked in a vessel, confinement not to exceed seven consecutive days or confinement on bread and water or diminished rations for a period not to exceed three consecutive days is authorized. A cOl11Il1ander is limited to imposing only one additional punishment in addition to or in lieu of admonition or reprimand.

6. Procedure.

a. The commander must initially satisfy himself by such investigation as he deems necessary that an offense punishable by him under Article 15 has been committed by a member ofhi s cO:tnmand and that an appropriate punishment may be imposed thereunder. Ho formal in­vestigation is required and commanders often utilize reports of in­vestigations by military police.

b. The cOl11Il18.1lder then notifies the offender of the nature of the offense in clear and concise terms and informs him that he proposes to impose punishment under ArtiCle 15 as to the offense unless trial by court-martial is demanded. The notification and information will be by written communication through channels in the 'case of an officer or warrant officer and may be by written communication in any case. Normally notification to noncommissioned officers is made in writing. In any type of notification to the offender, be must be advised of the following:

(1) The nature of the offense involved.

(2) That he has the right to demand trial by court-martial. Th§l Manual.fur 'Courts';'J1artilQ, Unitedstatee;i ,providef? that no discipli ­nary punishment "under the prmriSions 0 • C cle 15 may be imposed upon any member of the Army for an offense punishable thereunder if the ac­cused has, prior to the imposition of such punishment, demanded trial by court-martial in lieu of such disciplinary punishment. An election to accept disciplinary punishment constitutes a waiver of the right to de­mand trial. A demand for trial does not req~re preferring" transmitting, or forwarding of charges, but punishplent may not be imposed under Article 15 while the demand is in effect.

2

(3) That he has the right to submit such matters as he desires in defense, mitigation or extenuation.

c. If the accused elects to accept Article 15 punishment, he is given a reasonable time to present any matters in defense, mitigation, or extenuation. If notif:l,cation is in writing, then acceptance or demand for court-martial will likewise be in writing. (Sample forms of correspondence arf;l"contained in Appendix 3b" MCM, 1951.)

d. If the accused does not demand trial by court-martial, the commander then considers any matters presented in defense and determines if punishment is warranted. If he determines that punish­ment is warranted he wil;!. consider the matt~r presented in extenuation or mitigation in determining the type and quantum of punishment. He Will inform the offender of the punishment imposed either orally or in wr:lting, as appropriate, and will also adv:l.se him of h:f,.s right to appeal in accordance with paragJ:"aph :1.34, Manual for CO\lrts -Martial, United States, 1951, to the next superioroommander. - ..

e. The accused then acknowledges receipt of the notification of the imposition of punishment and indicates his intention concerning any appeal. He has a reasonable time in which to :make an appeal.

f. If he chooses to appeal he will submit by indorsement or by letter a brief signed statement of the reasons for regarding the punishment as unjust or disproportionate. The immediate commanding officer of the accused will, when necessary, include w.l.th the a.ppeal a copy of the record of the case. Appeals are expeditiously handled and decided but the person punished may in the' meantime be required to undergo the punishment adjudged (Article l5d). Normally the superior will hear no witnesses and when justice so requires he will modify the punishment or set it aside but cannot increase it or change the kind of punishment.

g. The appellant will be informed of the decision on appeal and directed to return the papers to his commanding officer. The com­manding officer of the accused is charged with the execution of punish­ment imposed pursuant to Article 15. The officer who imposed the punishment, his successor in command, and superior authority have power to suspend, set aside, o~ remit any part or amount of the punishment and restore all rigbts" pr:lvi1e~s, and property affected (Article l5d" UCMJ). '

7. Records of Nonjudicial Punishw.ent. In the case of an officer the record of nonjudicial punishment is forwarded to The Adjutant General, Department of the Army, for file in the officer's personnel file where it becomes a permanent record. (Paragraph 5, AR 640-98" 14 November 1955.) In the case of a soldier" a record of aU punishments administered under Article 15 is kept in the Unit Punishment Book. (A sample form is contained in Appendix 3a, MCM, 1951.) Where punishment is accomplished by written comm~ications and in~qrsements" these writings constitute the record. All r~duct:lo~~ of enl.iat~q, per~onne:J,. axe ~ounced in orders of the headc;Luarters Of the reductio~ autbor;\.ty. {Paragraph 31 ,

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AR 624-200, 19 May 1958.) Required entries are then made in the ac­cused's service record and copies of the order placed in his personnel file. LikeWise, action on appeal restoring all rights l privi1eges l and property I including pay and allowances, of which a reduced member was deprived by the re4uction will be announced in the orders revoking the reduction orders. (~ragraph 341 AR 624-200,19 May 1958.)

REFERENCES

Uniform Code of Mi1it'::EY Just~

P~C. 15 (10 U.S.C. 815) Commanding officer's nonjudicial punishment

Manual for Courts-Martial, 1951 (Executiye Order 1021~·, February 8, 1951)

Chapter XXVI -- Nonjudicial Punishment Appendix 3 -,. PUNISHMENT UNDER ARTICLE 15 - NONJUDICIAL PUNISHMENT

FORMS

Army" Ref$I;iJ-ations

.AR 624-200 - P.PPOINTIvlENT AND REDUCTION OF ENLISTED PERSONNEL, 19 May 1958 (as changed by Changes 1, 19 March 1959, and 2, 13 April 1959)

AR 640-98 ... Personnel Records, 14 November 1955 (as changed by Change 2, 11 May 1956)

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ANNEX F

ANALYSIS OF THE SID-lMARY COURT-MARTIAL SYSTEM IN THE UNITED STATES ARMY

1. Function of' a Summm Court-Martial. The function of a summary cotlrt-martial is to exercise justice promptly, under a simple form of procedure, tor relatively minor offenses not disposed of under Article 15. The summary court-martial consists of one commissioned officer who represents both the Government and the accused.

2. Jurisdiction of a Summa-IT C~-Ma.rtial. A summary court­martial has jurisdiction over all noncapital offenses made punJahable by the Uniform Code of lviilitary Justice and jurisdiction to try all persons subject to the Code except officers, cadets, aviation cadets and midshipmen. No person with respect to whom summary courts­martial have jurisdiction shall be brought to trial before a summary court-martial if he obje.::ts thereto unless under the proVisions of

. Article 15 he has been permitted and has elected to refuse punishment under such article.

3. Punishment Which May Be Adjudw=dby a SummalA': Court-Martial. A summary court-martial ma.y not adjudge a sentence in excess of the following:

a. Confinement for one month; or

b. Hard labor without confinement for 45 days; or

c. Restriction to specified limits for two months; and

d. Forfeiture of two-thirds of one month's pay; and

e. Reduction to the lowest enlisted pay grade. (In the case of specialists above pay grade E-4 and corporals, summary courts­martial may not adjudge confinement or hard labor wi.thout confinement or reduction except to the next inferior pay grade. These restric­tions are in addition to those impo$ed in paragraph 1Gb and 126c(2), Manual for Courts-Martial l United States, 1951. (Paragraph 6, Army Regulations 600-201, 20 June 1956, as changed by Change 1, dated 15 March 1957).)

4. .Who Mal Convene a S~ Court-Martial. A summary court­martial may be convened by any ArMy commander who may convene a .general or special court-martial, the cOIQlIlal1der of a detached company or other detachment of the Army or the commanding officer of any other command when empowered by the Secretary of tbe Army. When but one officer is present With a command or detachment he shall be the summary court .. martial of tha.t command or detachment and shalJ. hear a.nd detennine all sununary court..martiaJ,. cases brought before him. Summary courts­martial may, howeV\!r, be convened in e,ny case by superior competent authority When deemed desirable by him.

5. Procedures.

a. The unit commander. On receipt of charges indicating the commission of an offense by a member of his command for which the com­mander determines that pwlishment under Article 15 is not a.ppropriate or has in a proper case been refused by the accused, the commander will forward the charses to the commanding officer Who exercises summary court-martial jurisdiction over the accused with bIB recommendation as to appropriate disposition.

b. The convening author!ty. If the officer exercising sum­mary court-martial jurisdiction over the accused considers that an appropriate punishment can be imposed in trial bysuJ'llmary court-martial he may refer the charges directly to a summary court ·-inertial for trial.

c. The summary court..marti~.

(1) P:r:l.oY.' to trial. Upon receipt of: charges the summary court-martial takes immed;l.ate action to bring the accused to trial. He first determines that a summary courl-martial is authorized to try the person and the offense. He carefully studies the charge sheet, allied papers, and the elements of the offense charged, a nd becomes familiar with the ruJ.esot evidence. Thereafter he sets tbe time and place for trial a.nd notities the accused and all witnesses to be present.

(2) Interview with accused immediately prior to trial. He tells the accused who he is and advises him of the general nature ot the charges, the tact that they have been referred to a summary court-martial for trial, the name of the officer who appointed the court and the name of the accuser. He explains his position as combi­nation triaJ. counsel, defense counsel, and court and informs the accused that he will advise and assist him in every way possible. He tully explains the procedure to be followed and that he will call wit­nesses desired by the accused and will assist in questioning them. The accused will be advised of his own rights as a. witness and the maximum punishment that may be imposed. If from page 4 of the charge . sheet it doe s not appear that accused ha.s been parmitted and elected to refuse punishment under Article 15 for all the of'fenses charged, he 1s advised ot bis right to object to trial by surmnary court-martial and is asked whether he consents or objects to such trial. His response is recorded in the space provided on page 4 of the charge sheet and it he objects to trial the charges and allied papers are returned to the convening authority.

(3) During trial. The summary court-martiaJ. reads or shows the charges and specifications to the accused end assures him­self that the accused understands them. The accused is then asked how he pleads to each specifice.tion and charge. If the accused pleads guilty to any specification or charge the meaning and effect ot the plea is fully explained to him ~ncluding the maximum punishment imposabl.e. This explanation ;l.s acknowledged by accused's initials in an appro­priate block on the ch~ge sheet. If ~ plea of guilty to sJ.l

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specifications and charges is allowed to stand the accused may be con­victed without calling any 'Witnesses .. however.. if the summary court­martial feels that the interests of justice 'Will be best served he is admonished to call witnesses and proceed with the trial. The trial is then conducted if there 1s a plea of not guilty or evidence on the merits is to be rece1ved after a plea of guilty. The court reads the names of all witnesses on the charge sheet and determines if the ac" cused desires additional witnesses. The trial proceeds with the court questioning both prosecution and defense witnesses and showing the accused any documentary evidence utilized. The accused is fully advised of his rights to himself cross-examine Witnesses and to testify in his ow behalf. After conclusion of evidence on the merits the summary court arrives at findings and announces them to the acoused. If the accused is fOWld guilty he is read or shown any admissible evidence of previous convictions and the personal data on the charge sheet is verified. After considering any evidence in extenuation or mitigation the court determines a sentence. The sentence is then announced.

(4) After trial. The court notifies the accused's com­manding officer of the result of trial and comp:\.etes the record of trial including the charges considered.. pleas i findings.. sentence and any prior convictions considered. The charge sheet is corrected to delete the names of any witnesses not called or evidence not used and is made to reflect the names of additional witnesses called or evi­dence utilized.

d. Post triaJ. procedure. The convening authority in event of conviction takes immediate action to approve or disapprove the sentence after examining the record of trial for defects, making certain that the summary court--ma.rtial complied with all legaJ. requirements and that the sentence is not in excess of the legal limits and is appropriate for the offenses under all of the circumstances of the case. His action is then entered on page 4 of the charge sheet. Any subsequent action on the findings or sentence is promulgated in a summary court-martial order (Paragraph 4<1.. Army Regulations 22-10, dated 19 August 1957, as changed by Change 1, dated 27 March 1958). The record is forwarded to the unit personnel officer who makes an entry on the accused's service record. Copies of the record are then forwarded to the offi ­cer exercising general court-martial jurisdiction over the unit for examination by a judge advocate. If the findings and sentence are found correct in law and fact the case becomes .final Within the meaning of Article 76 of the Code. (Army Regulations 22-145 .. 13 February 1957.)

6. Record of Trial. The record of trial of a summary court­martial consists of four pages and includes biographical data per­taining to the accused" the names of the witnesses.. the charges and specifications .. the signature of the accuser, the oath taken by the accuser" the indorsement referring the case to a summary court.. a statement as to whether or not the accused was offered Article 15 pWlishment for the offenses charged, a statement as to whether the accused consents or objects to trial by summary court-martial .. the pleas, findings and sentence at the trial.. the action of the convening authority and an entry by the Wlit personnel officer indicating that the conviction has been entered on the per~onnel records of the accused.

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REFERENCE~

Uniform Code of Military JUstice

Art. 16 (10 u.s.e. 816) Courts-martial classified Art. 17 (10 u.s.e. 817) Jurisdiction of courts-martial in general Art. 20 (10 u.s.c. 820) Jurisdiction of swmnary courts-martial Art. 24 (10 u.s.c. 82!~) Who may convene summary courts-martial Art. 60 (10 U.S.C. 860) Initial action on the record Art. 64 (lO U.S.C. 864) Approval by the convening a.uthority Art. 65 (10 U.S.C. 865) Disposition of records after review by

the convening authority Art. 76 (10 U.S.C. 876) Finality of proceedings, findings and

sentence

Manual for Courts-Martial, 195;t (Executive Oz:der 10214, Feb!'}1&Y 8, 1951)

Par. 5c -- Who may convene summary courts-martial Par. 16 -- Jurisdiction of summary courts-martial Par. 79<1 -- Procedure of sUDlIl1ary oourts-martial Par. 90e -- Summar; court-martial App. 11 -- Form for Record of Trial by Surmnary Court-MartiaJ..

Army Regulations

AR 22-145, 13 February 1957. Reporters and supervisory review of records of summary and special courts-martial.

AR 600-201, 20 June 1956. Noncommissioned Officers and Specialists.

SR 22-125-5, 28 February 1949. Establishment of Summary Courts in Towns, Cities, and Recreational Areas.

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ANALYSIS,OF THE SPECIAL COURTS-MARTIAL SYSTEM IN THE UNITED STATES ARMY

1. Function of a SEecial Court-Martial. A special court-martial 1s the forum primarily used by Army commanders to dispose of chargee of relntively serious offenses for which a punitive discharge is not authorized or does not a.ppear to be appropriate under the circumstances. It consists of any number of members, not less than three.

2. Jurisdiction of Special Courts-Martial. Although generally referred to as a court of limited Jurisdiction, a special court-martial has jurisdiction over all persons subject to the Uniform Code of Mili ­tary Justice and over all. non-capital offenses made punishable by the Code •

. 3. ~y Convene 8t'!=cial Courts-Martia3;.. SpeciaJ. courts-martieJ. may be convened' by any person who may con~rene generaJ. courts-martia1, the commanding officer of an Ax:rrty, district, garrison, fort, camp, station, awdliary air field, or other place where members of the Army are on duty, the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Arrrsy, or the commanding offi ­cer of any other Army command when empowered by the Secretary of the krmy.

4. Punishments Which May Be Adjudged by Special Courts-Martial. Article 19, Uniform Code of l-Iilitary Justice, provides that special courts-martial may, under such limitations as the President may pre­scribe, adjUdge any punishment not forbidden by the Code except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor v.ithout confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months. A bad conduct discharge may not be adjudged unless a complete record of the proceedings and testiDlony before the court has been made. By regulation (Army Regulations 22..145, 13 February 1957) the Secretary of the Army has forbidden the appointment of reporters for summ~ courts-martial or for special courts-martial unless the convening authority shall have received special authorization in each instance from the Secretary of the Army. Since a verbatim record cannot be made, a. special court­martial. in the Arrrty may impose any authorized punishment except a bad conduct discharge.

5. Procedures. In!tiation and investigation of charges against an accused fo11ow the same procedure regarclless of whether the case wi11 be tried by a summary court-martial or special court-martia1. The consent of the accused is not required for trial by special court-martial. A trial counsel is appointed to prosecute in the name of the Un!ted States. A mi1itary counsel With equivalent or greater legal qualifications is appointed to defend the accused. In addition to or in lieu of appointed counsel the accused ~y be represented by civilian couneel retained by him at no expen$e to the Government or by requested military counsel if rea.sonably a.vailable. .Any perSon

who has acted as investigating officer, law officer, or court member in any case may not aet later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counselor assistant defense counsel in the same case, nor may any person who has acted for the prosecution act later in the same case for the defense. :No person who has acted for the defense may a.ct later in the same case for the prosecution.

6. Trial Procedure. Trial procedure before a special court .. martial 1s similar to that before a general court-martial, except that there is no law officer. The president of the court rules on interlocutory questions, subject to objection by other members of the court-martial and instructs the court as to the elements of each of­fense charged, the presumption of innocence, reasonable doubt and the burden of proof. Concurrence of two-thirds of the members present at the time the vote is taken is required for a finding of guilty and a like number must concur in any sentence adjudged. After a finding of guilty the accused is entitled to present evidence in mitigation or extenuation including the making of an unsworn statement either personally or through counsel. The court then closes and assesses the sentence. The procedure followed is prescribed in Appendix 8a., Manual for Courts-Martial, United States, 1951.

7. Record of Trial. A summarh.ed record of trial is prepared, a copy of which is furnished to the accused. Appendix 10 of the Manual prescribes the form of a record where a verbatim record is not made.

8. Post Trial Procedures. After the record of trial is au­thenticated the trial counsel delivers it to the convening authority for his action on the findings and sentence. The convening author!ty has the power to approve or disapprove the findings of guilty, or any part of them, and to approve or disapprove any part or all of the sentence adjudged. Since in the Army a bad conduct discharge may not be adjudged the convening authority may order the sentence executed and forward the record of trial to the officer exercising general court-martial jurisdiction where the record is reviewed by a judge advocate, thereby completing appellate review and finalizing the case within the meaning of Article 76 of the Code. (Army Regulations 22-145, 13 Fe'truary 1957.) The results of the trial including the action of the convening authority are promulgated in special court­martial orders (Army Regulations 22-10, 19 August 1957, as changed). A form prescribed for special court-martial orders ·is set forth in Appendix 15, 1'-lanuaJ. tor Courts-Martial, United States, 1951.

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REFERENCES

Uniform Code of Military Justice

Art. 16 (10 U.S.C. 816) Courts-martial classified Art. 17 (10 U.S.C. 8i7) Jurisdiction or courts-martial in general Art. 19 (10 U.S.C. 819) Jurisdiction of special courts-martial Art. 23 (10 U.S.C. 823) Who may convene special courts-martial Art. 27 (10 U.S.O. 827) Detail of trial counsel and defense counsel Art. 28 (10 U.S.C. 828) Detail or employment of reporters and

interpreters Art. 54 (10 U.S.C. 854) Record of trial Art. 60 (10 U.S.C. 860) Initia.l action on the record Art. 64 (10 U.S.C. 864) Approval 'by the convening authority Art. 65 (10 U.S.C. 865) Disposition of records after review by

the convening authority Art. 66 (10 U.S.c. 866) Review by a board of review Art. 67 (10 U.S.c. 867) Review by the Court of Nilitary Appeals Art. 74 (10 U.S.C. 874) Remission and suspension Art. 76 (10 U.S.C. 876) Finality of proceedings, findings 1 and

sentence

ManuaJ. for Courts-MartiaJ., United States, 1951.

P~. 5b -. Who may convene special courts-martial Par. 15 -- JU+isdiction of special courts-martiaJ. Chapt VIII .. - Appointment of courts-martial Chapt IX -- Personnel of cou:t'ts-martial Chapt X -- General procedural rules Chapt XI -- Organization of the court Chapt XIII -- Matters related to findings and sentence App. 8a -- GUide--Trial Procedure App. 10 -- Guide--Guide for preparation of record of trial 'by

special court-martial when a verbatim record is not prepared

App. l4b -- Forms of Action--Convening Authority--Special courts­martial

App. 15 -- Forms for court-martial orders

Arm;y Re~a.tions

AR 22-1.4S, 13 "February ~957," Repbrt~rs "and SuPervisory review of records of summary and special courts-martial

AR 22-10 1 19 August 1957, as changed by Change 2" 27 March 1958, Transmittal and ReferraJ. of Charges and Publication of Court-Martial Appointing and Promulgating Orders

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