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 CORNELL UNlVEfij. 
 
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 (Snrnpll Ham ^rlyonl ^library 
 
A MANUAL 
 
 ^/ 
 COURTS MARTIAL 
 
 U. S. ARMY 
 
 REPRINT OF • 
 
 CHAPTERS I TO VIII INCLUSIVE 
 
 CHAPTER XIII 
 
 ARTICLES OF WAR-APPENDIX 1 
 
 CHARGE SHEET-APPENDIX 3 
 
Cornell University Law Library. 
 
 THE GIFT OF 
 
 
 Date. 
 
 ^^^^;/^.g^ 
 
 9181 
 
 /^9^ II- 
 
 ABBREVIATIONS. 
 
 A. R Army Regulations, 1913. 
 
 A.W Articles of War, Code of 1916. 
 
 Bishop Bishop's New Criminal Law, 8th edition. 
 
 Clark Clark's Criminal Law, 2d edition. 
 
 Clark and Marshall . . . The Law of Crimes, 2d edition. 
 
 Cyc Cyclopedia of Law and Procedure. 
 
 Davis A Treatise on the Military Law of the United States, 
 
 2d edition. 
 
 Digest , Digest of Opinions of Judge Advocates General of 
 
 the Army, 1912. 
 
 Dudley Military Law and Procedure of Courts-Martial, 1910. 
 
 Greenleaf Law of Evidence, 16th edition. 
 
 R. S Revised Statutes of the United States, 1878. 
 
 Thompson Law of Trials. 
 
 Wharton Criminal Law, 9th edition. 
 
 Wigmore Law of Evidence. 
 
 Wigmore, P. C Pocket Code of Evidence. 
 
 Winthrop Military Law and Precedents, 2d edition, 1896. 
 
 XV 
 
iv^ 
 
 ^m^s/^j^ 
 
 
 CHAPTER I. 
 MILITARY JURISDICTION. 
 
 Page. 
 
 Section I : Source and kinds of military jurisdiction 1 
 
 1. Source 1 
 
 2. Kinds 1 
 
 (a) Military government 1 
 
 . (b) Martial law at home 1 
 
 (c) Martial law applied to the Army 2 
 
 (d) Military law 2 
 
 Section II : Exercise of military jurisdiction 2 
 
 3. Military tribunals 2 
 
 (a) Military commissions and provost courts 2 
 
 (6) Courts-martial, general, special, and summary 2 
 
 (c) Courts of inquiry 2 
 
 Section III : Persons subject to military law 2 
 
 4. Classes enumerated 2 
 
 (o) Regular Army, National Guard, and Volunteers 3 
 
 (b) Cadets 4 
 
 (c) Marine Corps 4 
 
 (d) Medical Department of Navy serving with detached marines .... 4 
 
 (e) Retainers to the camp and others 4 
 
 (/) Persons serving sentence of court-martial 4 
 
 (g) Army field clerks 4 
 
 (h) Field clerks. Quartermaster Corps 4 
 
 Section I. 
 SOURCE AND KINDS OF MILITARY JURISDICTION. 
 
 1. Source. — The source of military jurisdiction is the Constitution, 
 the specific provisions relating to it being found in powers granted 
 to Congress, in the authority vested in the President, and in a pro- 
 vision of the fifth amendment. 
 
 2. Kinds. — Military jurisdiction is of four kinds, viz: 
 
 (a) Military government (the law of hostile occupation) ; that is, 
 military power exercised by a belligerent by virtue of his occupation 
 of an enemy's territory, over such territory and its inhabitants. This 
 belongs to the law of war and therefore to the law of nations.# When 
 a conquered territory is ceded to the conqueror, military government 
 continues until civil government is established by the new sovereign. 
 
 (b) Martial law at home (or, as a domestic fact); by which is 
 meant military power exercised in time of war, insurrection, or re- 
 bellion in parts of the country retaining their allegiance, and over 
 persons and things not ordinarily subjected to it. 
 
 91487°— 17 2 1 
 
2 MANUAL FOR COURTS-MARTIAL. 
 
 (c) Martial law applied to the Army; that is, military power extend- 
 ing in time of war, insurrection, or rebellion over persons in the mili- 
 tary service, as to obligations arising out of such emergency and not 
 falling within the domain of military law, nor otherwise regulated 
 by law. 
 
 The last two divisions (b) and (c) are applications of the doctrine 
 of necessity to a condition of war. They spring from the right of 
 national self-preservation. 
 
 (d) Military law ; which is the legal system that regulates the gov- 
 ernment of the military establishment. It is a branch of the ijiunicipal 
 law, and in the United States derives its existence from special consti- 
 tutional grants of power. It is both written and unwritten. The 
 sources of written military law are the Articles of War enacted by 
 Congress August 29, 1916; other statutory enactments relating to 
 the military service; the Army Regulations; and general and special 
 orders and decisions promulgated by the War Department and by 
 department, post, and other commanders. The unwritten military 
 law is the "custom of war," consisting of customs of service, both in 
 peace and war. 
 
 This Manual deals primarily with military law. 
 
 Section II. 
 EXERCISE OF MILITARY JURISDICTION. 
 
 3. Military tribunals. — Military jurisdiction is exercised through 
 the following military tribunals : 
 
 (a) Military commissions and provost courts, for the trial of offenders 
 against the laws of war and under martial law. 
 
 (b) Courts-martial. — general, special, and summary — for the trial of 
 
 offenders against military law . (A . W . 3 . ) 
 
 [Note 1. — The general court-martial has concurrent jurisdiction with military 
 commissions and provost courts to try offenders against the laws of war. 
 (A. W. 12.) . ^ 
 
 Note 2. — For the authority to appoint courts-martial in the National Guard 
 not in the service of the United States, and the jurisdiction and powers of such 
 courts, see sections 102-108, act of June 3, 1916, 39 Stat., 208, 209; Appendix 2, 
 post.] 
 
 (c) Courts of inquiry, for the examination of transactions of or 
 
 accusations or imputations against officers or soldiers. (A. W. 97.) 
 
 [Note. — The composition, jurisdiction, procedure, etc., of these tribunals are 
 treated in the succeeding chapters of this Manual.] 
 
 Section III. 
 PERSONS SUBJECT TO MILITARY LAW. 
 
 4. Classes enumerated. — The following persons are subject to the 
 Articles of War (A. W. 2): 
 
 [Note. — Wherever the following words are used in the Articles of War or 
 this Manual, they are to be construed in the sense indicated below, unless the 
 
MILITARY JURISDICTION. 3 
 
 context shows that a different sense is intended, viz: (a) The word "officer" 
 shall be construed to refer to a commissioned officer; (b) the word "soldier" 
 shall, be construed as including a noncommissioned officer, a private, or any 
 other enlisted man; (c) the word "company" shall be understood as including' 
 a troop or battery; and (d) the word "battalion" shall be understood as includ- 
 ing a squadron. (A. W. 1.)] 
 
 (a) All officers and soldiers belonging to the Regular Army of 
 
 the United States; all volunteers, from: the dates of their muster or 
 
 acceptance into the military service of the United States; and all 
 
 other persons lawfully called, drafted, or ordered into, or to duty, or 
 
 for training in the said service, from the dates they are required by 
 
 the terms of the call, draft, or order to obey the same. 
 
 [Note. — (a) Regular Army. — The Regular Army of the United States, includ- 
 ing the existing organizations, shall consist of sixty-four regiments of Infantry, 
 twenty-five regiments of Cavalry, twenty-one regiments of Field Artillery, a 
 Coast Artillery Corps, the brigade, division, army corps, and army headquar- 
 ters, with their detachments and troops, a General Staff Corps, an Adjutant 
 General's Department, an Inspector General's Department, a Judge Advocate 
 General's Department, a Quartermaster Corps, a Medical Department, a Corps 
 of Engineers, an Ordnance Department, a Signal Corps, the officers of the 
 Bureau of Insular Affairs, the Militia Bureau, the detached officers, the 
 detached noncommissioned officers, the chaplains, the Regular Army Reserve, 
 all organized as hereinafter provided, and the following as now authorized by 
 law: The officers and enlisted men on the retired list; the additional officers; 
 the professors, the Corps of Cadets, the general army service detachment, and 
 detachrhents of Cavalry, Field Artillery, and Engineers, and the band of the 
 United States Military Academy; the post non-commissioned staff officers; the 
 recruiting parties, the recruit depot detachments, and unassigned recruits; the 
 service school detachments; the disciplinary guards; the disciplinary organiza- 
 tions; the Indian Scouts; and such other officers and enlisted men as are now 
 or may be hereafter provided for. (Sec. 2, act of June 3, 1916, 39 Stat., 166.) 
 
 (6) Volunteers. — The volunteer forces shall be subject to th e aws, orders, 
 and regulations governing the Regular Army in so far as such laws, orders, 
 and regulations are applicable to officers or enlisted men whose permanent 
 retention in the military service, either on the active list or on the retired list, 
 is not contemplated by existing law. (Sec. 4, act of Apr. 25, 1914, 38 Stat., 347.) 
 
 (c) National Guard. — The National Guard, when called as such into the 
 service of the United States, shall, from time to time they are required by the 
 terms of the call to respond thereto, be subject to the laws and regulations 
 governing the Regular Army, so far as such laws and regulations are applicable 
 to officers and enlisted men whose permanent retention in the military service, 
 either on the active list or on the retired list, is not contemplated by existing 
 law. (Sec. 101, act of June 3, 1916, 39 Stat., 208.) 
 
 [Note. — The militia when called into the service of the United States is also 
 subject to military law. (35 Stat., 399.)] 
 
 (d) National Guard when drafted into Federal service. — Members of the 
 National Guard and the National Guard Reserve drafted into the military 
 service of the United States shall, from the date of their draft, stand dis- 
 charged from the militia, and shall from said date be subject to such laws and 
 regulations for the government of the Army of the United States as may be 
 applicable to members of the Volunteer Army. (Sec. Ill, act of June 3, 1916, 
 39 Stat., 211.) 
 
 (e) Officers' Reserve Corps. — Any officer who, while holding a commission in 
 the Officers' Reserve Corps, shall be ordered to active service by the Secretary 
 of War shall, from the time he shall be required' by the terms of his order to 
 obey the same, be subject to the laws and regulations for the government of 
 the Army of the United States, in so far as they are applicable to officers whose 
 permanent retention iri the military service is not contemplated. (Sec. 38, act 
 of June 3, 1916, 39 Stat., 190.) 
 
 (/) The Enlisted Reserve Corps. — Any enlisted man of the Enlisted Reserve 
 Corps ordered to active service, or for purposes of instruction or training shall, 
 from the time he is required by the terms of the order to obey the same, be 
 subject to the laws and regulations for the government of the Army of the United 
 States. (Sec. 55, act of June 3, 1916, 39 Stat., 195.)] 
 
4 MANUAL FOR COURTS-MARTIAL. 
 
 (5) Cadets. 
 
 (c) Officers and soldiers of the Marine Corps when detached 
 for service with the armies of the United States by order of the 
 President. (A. W. 2.) 
 
 (d) Officers and enlisted men of the Medical Department of the 
 Navy, serving with a body of marines detached for service with the 
 Army in accordance with the provisions of section sixteen hundred 
 and twenty-one of the Revised Statutes, shall, while so serving, be 
 subject to the rules and articles of war prescribed for the govern- 
 ment of the Army in the same manner as the officers and men of the 
 Marine Corps while so serving. (Act of Aug. 29, 1916, 39 Stat., 573.) 
 
 [Note. — (a) Except as provided in (c) and (d) supra or otherwise spe- 
 cifically provided by law, the Articles of War do not apply to any person 
 under the United States naval jurisdiction. (b) An officer or soldier of the 
 Marine Corps detached for service with the Army may be tried by military 
 court-martial for an offense committed against the laws for the government of 
 the naval service prior to his detachment and for an offense committed against 
 the Articles of War he may be tried by a naval, court-martial after such detach- 
 ment ceases. (A. W. 2.)] 
 
 (e) All retainers to the camp and all persons accompanying or 
 serving with the armies of the United States without the territorial 
 jurisdiction of the United States, and in time of war all such re- 
 tainers and persons accompanying or serving with the armies of 
 the United States in the field, both within and without the terri- 
 torial jurisdiction of the United States though not otherwise subject 
 to the Articles of War. 
 
 [Note. — In addition to the two classes (o) "retainers to the camp" and (6) 
 "persons serving with the armies of the United States in the field" who were 
 made subject to military jurisdiction by A. W. 60 of the code of 1806 (A. W. 
 63 of the revision of 1874), A. W. 2 of the code of 1916 includes a third class, viz, 
 (c) "persons accompanying the armies of the United States."] 
 
 (/) All persons under sentence adjudged by courts-martial. 
 
 (g) Army field clerks . 
 
 [Note. — Hereafter headquarters clerks shall be known as Army field clerks 
 and shall * * * be subject to the rules and Articles of War. (Sec. 1, act 
 of Aug. 29, 1916, 39 Stat., 62.5.)] 
 
 ih) Field clerks, Quartermaster Corps. 
 
 [Note 1. — Hereaftei not to exceed two hundred clerks. Quartermaster Corps, 
 * * * shall be known as field clerks. Quartermaster Corps, * * * and 
 shall be subject to the rujes and Articles of War. (Act of Aug. 29, 1916 
 39 Stat., 626.)] 
 
 [Note 2. — Inmates of the Soldiers' Home (R. S. 4824), the National Home for 
 Disabled Volunteer Soldiers (R. S. 4835), all persons admitted to treatment in 
 the General Hospital at Fort Bayard, New Mexico, while •patients in said hos- 
 pital (act of June 12, 1906, 34 Stat., 255), and all persons admitted to treat- 
 ment in the Army and Navy General Hospital at Hot Springs, Arkansas, while 
 patients in said hospital (act of Mar. 3, 1909, 35 Stat., 748), are by the statutes 
 cited made subject to the rules and articles for the government of the armies of 
 the United States, but court-martial jurisdiction over them has rarely, if ever, 
 been exercised.] 
 
CHAPTER II. 
 
 COURTS-MARTIAL— CLASSIFICATION— COM- 
 POSITION. 
 
 Page. 
 
 Section I : Classification 5 
 
 5. Kinds 5 
 
 ' (o) General courts-martial 5 
 
 (b) Special courts-martial 5 
 
 (c) Summary courts-martial 5 
 
 Section II : Composition 6 
 
 6. Who competent to serve 6 
 
 Exceptions — 
 
 (o) Accuser or witness for prosecution 6 
 
 (b) Officers excepted by custom 6 
 
 7. Number of members 6 
 
 (a) General courts-martial 6 
 
 Reduction below quorum — Report by judge advocate 6 
 
 (6) Special courts-martial 7 
 
 Reduction below quorum 7 
 
 (c) Summary courts-martial 7 
 
 8. "Officer" defined 7 
 
 9. "In the military service of the United States" 7 
 
 (o) Officer suspended from rank 7 
 
 (6) Retired officers 7 
 
 (c) Volunteers, Officers' Reserve Corps, persons called, drafted, or 
 
 ordered into service 7 
 
 10. Marine officers 8 
 
 11. No distinction between Regulars and other forces 8 
 
 12. Rank of members 8 
 
 ' (a) Trial by inferiors in rank 8 
 
 (b) Determination of rank among Regula;rs and other forces 8 
 
 13. Who may be tried 8 
 
 Section I. 
 
 CLASSIFICATION. 
 
 5. Kinds. — Courts-martial shall be of three kinds (A. W. 3), viz: 
 (a) General courts-martial; 
 (6) Special courts-martial; and 
 (c) Summary courts-martial. 
 
 [Note. — The classification of courts-martial adopted by the code of 1916 is 
 identical with that made by the act of March 2, 1913 (37 Stat., 721), which 
 abolished garrison and regimental courts-martial and created special courts 
 martial.] 
 
 5 
 
6 MANUAL FOR COURTS-MARTIAL. 
 
 Section II. 
 COMPOSITION. 
 
 6. Who competent to serve. — ^All officers in the miHtary service of the 
 United States, and officers of the Marine Corps when detached for 
 service with the Army by order of the President, shall be com- 
 petent to serve on courts-martial for the trial of any persons who 
 may lawfully be brought before such courts for trial. (A. W. 4.) 
 
 Exceptions. — (a) No officer shall be eligible to sit as a member of a 
 general or special court-martial when he is the accuser or a witness 
 for the prosecution (A. W. 8, 9); but when there is only one officer 
 present with a command he shall be the summary court-martial of 
 that command and shall hear and determine cases brought before 
 him (A. W. 10). [See chapter 8, sec. 1, par. 129.] (6) Chaplains, 
 veterinarians, dental surgeons, and second lieutenants in the Quarter- 
 master Corps are not in practice detailed as members of courts- 
 martial. 
 
 7. Number of members. — Courts-martial shall be composed of the 
 following number of officers (A. W. 5, 6, 7), viz: 
 
 (a) General courts-martial. — ^Any number from 5 to 13, incltisive. 
 
 A general court-martial shall not consist of less than 13 officers when 
 that number can be convened without manifest injury to the service. 
 (A. W. 5.) The Articles of War (A. W. 5, 6) governing the number 
 of members which may sit upon a general or a special court-martial 
 are merely directory to the officer appointing the court, and his de- 
 cision as to the mmiber which can be convened without manifest injury 
 to the service (within the maximiim-and minimiom limits prescribed by 
 law), being a matter submitted to his sound discretion, must be conclu- 
 sive. (Martin v. Mott, 12 Wheaton, 35; see also Mullan v. U. S., 140 
 U. S., 240.) While a number less than five can not be organized as a 
 general court-martial or proceed with a trial, they may perform such 
 acts as are preliminary to the organization and action of the court. 
 Less than five members may .adjourn from day to day, and where 
 five are present and one of them is challenged, the remaining four 
 may determine upon the sufficiency of the objection. A court 
 reduced to four members and thereupon adjourning for an indefi- 
 nite period does not dissolve itself. The appointing authority may 
 at any time complete it by the addition of a new member or mem- 
 bers and order it to reassemble for business. (Digest, p. 158, LXXV, 
 B, 3), but if any evidence has been taken before the court is reduced 
 below five, it should be dissolved and a new one ordered. 
 
 If for any reason a general court-martial is reduced below five 
 members .it will direct the judge advocate to report the facts to the 
 convening authority and wait his orders. The report by the judge 
 advocate will, in all cases, be made through the commanding officer 
 
COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. 7 
 
 of the post, command, or station where the court is sitting, who will 
 indorse thereon the names of a sufficient mxmher of available officers 
 whom he recommends be detailed on the court to enable it to proceed. 
 More than enough to make a quorum should be recommended where 
 practicable in order to provide for future contingencies, and so far 
 as can be foreseen the officers recommended should not be liable to 
 challenge in any case to be tried. If there be no such officer or officers 
 available, the commanding officer will so state. This report will be 
 made by wire whenever deemed advisable in order to prevent unneces- 
 sary delay in trying cases. Similar action will be taken before trial 
 by the. judge advocate and commanding officer whenever the former 
 knows or has good reason to believe that the court will be reduced 
 below -a quorum at the time of trial. It is the duty of commanding 
 officers to keep in touch with the business before general courts- 
 martial being held within the limits of their commands and from 
 time to time to take the initiative in making recommendations to the 
 appointing authority as to relieving or adding members, changing 
 the judge advocate, or appointing a new court, and as to other mat- 
 ters relating to such courts, so that they may proceed expeditiously 
 and in cooperation with other official business. 
 
 (b) Special courts-martial. — Any number of officers from three to 
 five, inclusive. 
 
 The remarks under (a) ante apply equally to a special court-mar- 
 tial where its membership is reduced below the minimum required by 
 law, except that in the case of special court-martial the report by the 
 judge advocate will be made to the convening authority, who will, 
 without unnecessary delay, detail a sufficient number of qucAified 
 officers to enable it to proceed or appoint a new court. 
 
 (c) Summary courts-martial. — A summary court-martial shall con- 
 sist of one officer. (C. M. C. M., No. i.) 
 
 8. "Officer" defined. — The word "officer" when used in the Articles 
 of War or this Manual means commissioned officer. (A. W. 1.) 
 
 9. "In the military service of the United States." — (a) An officer sus- 
 pended from rank should not be detailed to sit as a member of a court- 
 martial during the period of suspension. 
 
 (b) A retired officer may be assigned with his consent to active duty 
 upon courts-martial in time of peace (act of Apr. 23, 1904, 33 Stat., 
 264), and if employed on active duty in time of war in the discretion 
 of the President (sec. 24, act of June 3, 1916, 39 Stat., 183), he is 
 eligible for court-martial duty. At other times he is not available for 
 such duty except that when placed in command of a post under the 
 act of August 29, 1916 (39 Stat., 627), or when assigned to recruiting 
 duty he may act as summarjr court-martial when he is the only officer 
 present. (See pars. 26 and 27.) 
 
 , (c) Volunteers become eUgible for duty as members of courts- 
 martial from the dates of their muster or acceptance into the military 
 service of the United States (A. W. 2), members of the Officers' 
 Reserve Corps ordered to active service by the Secretary of War (sec. 
 
8 , MANUAL FOR COURTS-MARTIAL. 
 
 38, act of June 3, 1916; 39 Stat., 191), and all other officers lawfully 
 called, drafted, or ordered into, or to duty or for training in, the said 
 service, from the date they are required by the terms of the call, draft, 
 or order to obey the same (A. W. 2). 
 
 10. Marine officers. — Marine officers can be detached for duty with 
 the Army only by order of the President (R. S. 1619, 1621), and 
 their eligibility to sit as members of courts-martial to try persons 
 subject to military law continues only during the time they are serv- 
 ing under such order. When any part of the Marine Corps is pres- 
 ent with the Army and engaged in a common enterprise with it, 
 without an order of the President detaching it for service with the 
 Army, the case is one of cooperation and not of incorporation, and 
 in such a case no officer of the Marine Corps can exercise command 
 over the Army any more than a naval officer can when some part of 
 the Navy is cooperating with the Army, and the converse is true of 
 Army officers cooperating with the Marine Corps. (28 Op. Atty. 
 Gen., 15.) 
 
 11. No distinction between Regulars and other forces. — No distinction 
 now exists in the matter of eligibility for court-martial duty among 
 the various classes of officers in the military service of the United 
 States for the trial of any person subject to military law. (Act of 
 Apr. 25, 1914, 38 Stat., 348; A. W. 4.) 
 
 12. Rank of members. — (a) The order appointing a general or a 
 special court-martial should name the members in order of rank, and 
 they will sit according to rank. 
 
 I In no case shall an officer, when it can be avoided, be tried by 
 officers inferior to him in rank. (A. W. 16.). This provision (like 
 that in reference to the number of members of a general or special 
 court-martial considered in paragraph 7, ante) is not prohibitory but 
 directory only upon the convening authority. Its effect is to leave 
 to the discretion of that officer, as the conclusive authority and judge, 
 the determination of the question of the rank of the members, with 
 only the general instruction that superiors in rank to the accused 
 shall be selected, so far as the exigencies and interests of the service 
 will permit. (Mullan v. U. S., 140 U. S., 240.) 
 
 (b) Rank among officers of the Regular Army, forces drafted or 
 called into the service of the United States, and Volunteers is deter- 
 mined according to the rules laid down in A. W. 119. 
 
 13. Who may be tried.— (a) For the jurisdiction of general, special, 
 and summary courts-martial as to persons see Chapter IV, Juris- 
 diction. 
 
 (6) In addition to the persons subject to military law enumerated 
 in Chapter I, Section III, ante, the general court-martial also has 
 jurisdiction over any other person who by the law of war is subject 
 to trial by military tribunals. (A. W. 12; see Chap. IV, Jurisdiction.) 
 
CHAPTER III. 
 COURTS-MARTIAL— BY WHOM APPOINTED. 
 
 Page. 
 
 Section I : General courts- martial 9 
 
 14. Authorities enumerated, (o) to (i) 9 
 
 Exceptions — 
 
 (1) Appointing authority a,s accuser or prosecutor 10 
 
 (2) Superintendent of Military Academy 10 
 
 15. Power of President to appoint 10 
 
 16. Same for Superintendent of Military Academy 10 
 
 17. "Accuser" or "prosecutor" defined 10 
 
 18. Power to appoint an attribute of command 11 
 
 19. Rank of appointing authority 12 
 
 20. Power of appointing authority — How limited 12 
 
 Section II : Special courts-martial 12 
 
 21. Authorities enumerated, (o) to (i) 12 
 
 Exception — Appointing authority as accuser or prosecutor 12 
 
 22. Commanding officer as accuser or prosecutor 12 
 
 23. Rank of appointing authority 13 
 
 24. Commanding officer as member 13 
 
 Section III: Summary courts-martial 13 
 
 25. Authorities enumerated, (a) to {h) 13 
 
 26. When more than one officer present 13 
 
 27. When but one officer present 14 
 
 28. "Detachment" defined 14 
 
 29. Power of brigade commanders 14 
 
 Section IV : Judge Advocate. 
 
 30. Power to appoint 15 
 
 31. Duties 15 
 
 Section I. 
 
 GENERAL COURTS-MARTIAL. 
 
 14. Authorities enumerated. — General courts-martial may be ap- 
 pointed by the following authorities (A. W. 8), viz: 
 (o) The President of the United States. 
 (5) The commanding officer of a territorial division, 
 (c) The commanding officer of a territorial department. 
 ((?) The Superintendent of the Military Academy. 
 (e) The commanding officer of an army. 
 (/) The commanding officer of an army corps. 
 
10 ' MANUAL FOR COURTS-MARTIAL. 
 
 (g) The commanding officer of a (tactical) division. 
 (h) The commanding officer of a separate brigade. 
 (i) The commanding officer of any district or of any force or 
 body of troops, when empowered by the, President to do so. 
 
 Exceptions. — (1) When any of the foregoing commanders is the 
 accuser or the prosecutor of the person or persons to be tried, the 
 court shall be appointed by superior competent authority; (2) the 
 Superintendent of the Military Academy is not empowered to con- 
 vene a general court-martial for the trial of an officer. (A. W. 12.) 
 
 [Note. — For the authority to appoint general court-martial in the National 
 Guard not in the service of the United States, see sec. 103 act of June 3, 1916, 39 
 Stat., 208; Appendix 2, post.] 
 
 15. Power of the President to appoint. — In addition to the general 
 statutory authority conferred upon the President by A. W. 8 to ap- 
 point general courts-martial he is also empowered to do so by virtue 
 of being Commander in Chief of the Army (Swain v. U. S., 165 U. S., 
 563) and in the particular case provided for by R. S. 1230. 
 
 [Note. — When any officer, dismissed by order of the President, makes,- in 
 writing, an application for trial, setting forth, under oath, that he has been 
 wrongfully dismissed, the President shall, as soon as the necessities of the 
 service may permit, convene a court-martial to try such officer on the 
 charges on which he shall have been dismissed. And if a court-martial is not 
 so convened within six months from the presentation of such application for 
 trial, or if such court, being convened, does not award dismissal or death as 
 the punishment of such officer, the order of dismissal by the President shall be 
 void. (R. S. 1230.) See also A. W. 118.] 
 
 16. Superintendent of the MilitaryAcademy. — The Superintendent of 
 the Military Academy was authorized by R. S". 1326 to convene gen- 
 eral courts-martial for the trial of cadets only; the act of jNIarch 2, 
 1913 (37 Stat., 722), extended this authority to include all persons 
 (except officers) subject to military law under his command. This 
 authority was continued in the Code of 1916. (A. W. 8, 12.) 
 
 17. "Accuser" or "prosecutor." — Whether the commander who con- 
 vened the court is to be regarded as the "accuser or prosecutor" 
 where he has had to do with the preparing and preferring of 
 the charges, is mainly to be determined by his animus in the mat- 
 ter. He may, like any other officer, initiate an investigation of an 
 officer's conduct and formally prefer, as his individual act, charges 
 against such officer; or by reason of a personal interest adverse to the 
 accused he may adopt practically as his own charges initiated by an- 
 other; in which cases he is clearly the accuser or prosecutor within 
 the article. On the other hand, it is his duty to determine, when the 
 facts are brought to his knowledge, whether an officer within his com- 
 mand charged with a military offense shall in the interest of disci- 
 pline and for the good of the service be brought to trial. To this 
 end he may formally refer or revise or cause to be revised and then 
 formally referred, charges preferred against such officer by another; 
 
COURTS-MARTIAL— BY WHOM APPOINTED. 11 
 
 or when the facts of an alleged offense are communicated to him, he 
 may direct a suitable officer, as a member of his staff, or the proper 
 commander of the accused, to investigate the matter, formulate and 
 prefer such charges as the facts may warrant, and having been sub- 
 mitted to him, he may revise and refer them for trial as in other 
 cases; all this he may do in the proper performance of his official duty 
 without becoming the accuser or prosecutor in the case. Of course, he 
 can not be deemed such accuser or prosecutor where he causes charges 
 to be preferred and proceeds to convene the court by direction of the 
 Secretary of War or a competent miUtary superior. (Digest, p. 154, 
 LXXII, I, 1.) It is not essential that the commander who convenes 
 the court-martial for the trial of an officer should sign the charges 
 to make him the "accuser or prosecutor" within the meaning of this 
 article. Nor is the fact that they have been signed by another con- 
 clusive on the question whether the convening commander is the 
 actual accuser or prosecutor. The objection that such commander is 
 such, calls in question the legal constitution of the court, and while 
 such objection, if known or believed to exist, should regularly be in- 
 terposed at or before the arraignment it may be taken during the 'trial 
 at any stage of the proceedings. If not admitted by the prosecution 
 to exist, the accused is entitled to prove it like any other issue. (For 
 decisions as to when the convening authority is the accuser or prose- 
 cutor, see Digest, p. 155, LXXII, I, 1, a; p. 155, LXXII, I, 2; p. 
 156, LXXII, I, 3, a; p. 156, LXXII, I, 3 a (1).) 
 
 18. Power to appoint an attribute of command. — ^As the authority to 
 appoint general courts-martial is an attribute of command, a com- 
 manding officer can not delegate to another officer such as his adju- 
 tant or any other staff officer or subordinate the authority to appoint 
 a court, detail an additional member, or relieve a member. If the 
 authority to appoint a general court-martial is vested by law in a 
 commanding officer he retains that authority, wherever he may be, 
 so long as he continues to be such commanding officer. In the absence 
 of orders or legislation, personal presence within the territorial limits 
 of his department is not essential to the validity of commands given 
 by a department commander to be executed within the department. 
 Therefore he may appoint a court-martial while absent from his 
 department if he continues to exercise command. But a depart- 
 ment commander detached and absent from his command for any 
 considerable period by reason of having received a leave of absence 
 (whether of a formal or informal character), or having been placed 
 upon a distinct and separate duty, is held to be in a status incom- 
 patible with a full and legal exercise of such authority and therefore 
 incompetent during such absence to order a general court-martial 
 as department commander, even though no other officer has been 
 
12 MANUAL FOR COURTS-MARTIAL. 
 
 assigned or has succeeded to the command of the department. 
 (Digest, p. 153, LXXII, A.) 
 
 19. Rank of appointing authority. — The power of the various com- 
 manders enumerated in paragraph 14, supra, to appoint general 
 courts-martial is independent of their rank, but no officer other than 
 those enumerated can appoint a general court-martial no matter 
 what his rank may be. An officer who succeeds to aily command 
 or duty stands in regard to his duties in the same situation as his 
 predecessor. (A. R. 17.). In the event of the death or disability 
 of the permanent commander of a territorial department, or his 
 temporary absence from the limits of his command, the senior line 
 officer present and on duty therein will exercise the command of the 
 department, unless otherwise ordered, until relieved by proper au- 
 thority. (A. R. 196.) 
 
 20. Power of appointing authority, how limited. — An officer who has 
 power to appoint a court-martial may control its existence, dissolve 
 it, and determine the cases to be referred to it for trial, but he can 
 not control the exercise by the court of powers vested in it by law. 
 
 Section II. 
 SPECIAL COURTS-MARTIAL. 
 
 21. Authorities enumerated. — Special courts-martial may be ap- 
 pointed by the following authorities (A. W. 9), viz: 
 
 (a) The commanding officer of a district. 
 
 (6) The commanding officer of a garrison, 
 
 (c) The commanding officer of a fort. 
 
 {d) The commanding officer of a camp. 
 
 {e) The commanding officer of any place other than (a), {b), (c), 
 and {d) where troops are on duty. 
 
 (/) The commanding officer of a brigade. 
 
 (g) The commanding officer of a regiment. 
 
 {h) The commanding officer of a detached battalion. 
 
 {i) The commanding officer of any other detached command. 
 
 Exception. — ^When any one of the foregoing commanding officers 
 
 is the accuser or the prosecutor of the person or persons to be tried, 
 
 the court shall be appointed by superior authority. 
 
 ' When any superior authority deems it desirable, he may appoint 
 
 a special court-martial for any part of his command. 
 
 [Note. — For the authority to appoint special courts-martial in the National 
 Guard not in the service of the United States, see sec. 104, act of June 3, 1916, 
 39 Stat., 208; Appendix 2, poi<.] 
 
 22. Commanding officer as "accuser or prosecutor." — The rules laid 
 down in Section I, paragraph 17, supra, for determining when a com- 
 mander is the accuser or prosecutor apply equally to trials by special 
 
COURTS-MARTIAI^BY WHOM APPOINTED. 13 
 
 courts-martial. When a superior appoints a' court because of such 
 disqualification on the part of a subordinate commanding officer, he 
 will specify in the order the names of the person or persons to be 
 tried, and the court will adjourn sine die upon the completion of the 
 last case which it is ordered to try. 
 
 23. Rank of appointing authority. — As in the case of general courts- 
 martial, the test of the power to appoint a special court-martial is 
 whether the officer is one of the commanders designated in A. W. 9. 
 Such authority is an incident of his power to command, and is inde- 
 pendent of his rank. 
 
 24. Conimanding oflB.cer as member. — When but two officers in addi- 
 tion to the commanding officer are available for detail on a special court- 
 martial, the commanding officer will not detail himself as a member 
 of such court. In such a case, if superior authority desires to appoint 
 a special court-martial for such command, the commanding officer, if 
 otherwise eligible, may be appointed as a member thereof. 
 
 Section III. 
 SUMMARY COURTS-MARTIAL. 
 
 25. Authorities enumerated. — Siunmary courts-martial may be 
 appointed by the following authorities (A. W. 10), viz: 
 
 (a) The commanding officer of a garrison. 
 
 (b) The commanding officer of a fort. 
 
 (c) The commanding officer of a camp. 
 
 (d) The commanding officer of any other place not enumerated in 
 
 (a), (b), and (c) where troops are on duty. 
 
 (e) The commanding officer of a regiment. 
 
 (/) The commanding officer of a detached battalion. 
 
 (g) The commanding officer of a detached company. 
 
 (h) The commanding officer of any other detachment not enumer- 
 ated in (/) and (g) . 
 
 A summary court-martial may in any case be appointed by su- 
 perior authority when by the latter deemed desirable. 
 
 [Note. — For the authority to appoint summary courts-martial in the National 
 Guard not in the service of the United States, see sec. 105, act of June 3, 1916, 
 39 Stat., 208; Appendix 2, pojJ.] 
 
 26. When more than one officer present. — ^When more than one 
 officer is present the,summary court-martial will be appointed from staff 
 officers or available line officers junior to the commanding officer. 
 The commanding officer will not in such cases designate himself as 
 the summary court-martial. The senior officer on duty at a recruit- 
 ing station is a "commanding officer" in the sense of the last pre- 
 ceding sentence when there is another officer present at the same 
 station, even though the latter may be serving at an auxiliary or branch 
 station. (Bui. 46, War Dept., Oct. 24, 1914.) 
 
14 MANUAL FOR COURTS- MARTIAL. 
 
 27. When but one officer present. — When but one officer is present 
 with a command he shall be the sttmrnary court-martial of that com- 
 mand and shall hear and determine cases brought before him. (A. W. 
 10.) In such a case, no order appointing the court will be issued 
 but the officer will enter on the record that he is the "only officer 
 present with the command." (As to retired officers, see par. 9, b.) 
 
 28. "Detachment" defined. — A battalion or other unit is "detached" 
 when isolated or removed from the immediate disciplinary control 
 of a superior of the same branch of the service in such a manner as to 
 make its commander primarily the one to be looked to by superior 
 authority as the officer responsible for the administration of the dis- 
 cipline of the enlisted men composing the same. The term is used 
 in a disciplinary sense, and is not necessarily limited to what con- 
 stitutes detachment in a physical or tactical sense. The commanding 
 officers of such units as field signal battalions, aero squadrons, field 
 bakeries, and ammunition, engineer, or sanitary trains, if their respec- 
 tive commands are independent, except in so far as they consti- 
 tute parts of a division, and if their commanders are responsible 
 directly to the division commander for the maintenance of discipline 
 in those commands, are competent to appoint summary courts for 
 the same, subject to the power of the division commander to appoint 
 summary courts for all subordinate organizations and detachments 
 under his command if by him deemed advisable. 
 
 So likewise the various service schools, such as the Mounted Service 
 School at Fort Riley, though they may be located within the imme- 
 diate limits of higher commands, constitute "detachments" within 
 the meaning of A. W. 10, and the commandants thereof have power 
 to appoint summary courts-martial for the trial of enlisted men 
 connected with such schools, subject to the right of the commanding 
 officer of the garrison or fort to appoint such courts when by him 
 deemed desirable. (Bui. 13, War Dept., 1913, p. 7.) 
 
 29. PoVer of brigade commanders.^ — A brigade commander is respon- 
 sible for the instruction, tactical efficiency and preparedness for war 
 service of his brigade. (A. R. 194.) If the brigade is serving at one 
 garrison or post he has, by virtue of his power as such garrison or 
 post commander, authority to retain within himself the appointing 
 power of all summary courts within his command^ but if he does not 
 exercise the authority which is vested in him by statute he allows the 
 appointing power, including the power of review, to pass to regimen- 
 tal (and detachment) commanders. (Digest, p. 580, XVI, E, 7.) 
 If the brigade is acting as a tactical unit in the field, he may as superior 
 authority, appoint summary courts-martial for his command when- 
 ever he deems it desirable, but such authority will ordinarily be exercised 
 by the regimental commanders. 
 
COURTS-MARTIAL— BY WHOM APPOINTED. 15 
 
 Section IV. 
 JUDGE ADVOCATE. 
 
 30. Power to appoint. — For each general or special court-martial the 
 authority appointing the court shall appoint a judge advocate, and 
 for each general court-martial one or more assistant judge advocates 
 when necessary. (A. W. 11.) 
 
 31. Duties of judge advocate and assistant judge advocates. — For 
 discussion of the duties of the judge advocate and his assistants see 
 Chapter VII, Sections II and III. 
 
CHAPTER IV. 
 COURTS-MARTIAL— JURISDICTION. 
 
 Page. 
 
 Section I : Jurisdiction in general 17 
 
 32. Jurisdiction defined 17 
 
 33. Courts-martial not part of Federal judicial system 18 
 
 34. Conditions necessary to show jurisdiction 18 
 
 35. Procedure when military and civil jurisdiction concurrent 19 
 
 36. Can not be divested by act of accused 20 
 
 37. Not territorial 20 
 
 38. When terminated — -"Rule stated 20 
 
 Exceptions (a) to (e) 20 
 
 Section II: Jurisdiction of general courts-martial 21 
 
 39. Persons and offenses 21 
 
 40. Limits of punishment — Exception 21 
 
 Section III : Jurisdiction of special courts-martial 22 
 
 41.. Persons and offenses 22 
 
 42. Limits of punishment 22 
 
 Section IV: Jurisdiction of summary courts- martial 22 
 
 43. Persons and offenses 22 
 
 44. Limits of punishment 23 
 
 Section V : Jurisdiction of other military tribunals 23 
 
 4.5. When concurrent with courts-martial 23 
 
 Section I. 
 
 JURISDICTION IN GENERAL. 
 
 32. Jurisdiction defined. — The jurisdiction of a court-martial is its 
 power to try and determine cases legally referred to it and, in case 
 of a finding of guilty, to award a punishment for the oflense within 
 its prescribed limits. Being courts of special and limited jurisdiction 
 their organization, powers, and mode of procedure must conform to 
 all the statutory provisions relating to their jurisdiction. (For the 
 source and kinds of military jurisdiction .and persons subject to mili- 
 tarj? law see Chap. I, Sees. I and III.) 
 
 17 
 
18 MANUAL FOR COURTS-MARTIAL. 
 
 33 . Courts-martial not part of Federal judicial system. — While courts- 
 martial have no part of the jurisdiction set apart under the article 
 of the Constitution which relates to the judicial power of the United 
 States they have an equally certain constitutional source. They are 
 established under the constitutional power of Congress to make rules 
 for the government and regulation of the land forces of the United 
 States, and are recognized in the provisions of the fifth amendment 
 expressly exempting "cases arising in the land and naval forces" 
 from the requirement as to presentment and indictment by grand 
 jury. They are tribunals appointed by military orders issued under 
 authority of law. The power to appoint them, as well as the power 
 to act upon their proceedings, is vested by law in certain command- 
 ing officers. Their jurisdiction is entirely criminal. They have no 
 power to adjudge damage for personal injuries or private wrongs, 
 nor to collect private debts. Their judgments upon subjects within 
 their limited jurisdiction, when duly approved or confirmed, are as 
 legal and valid as those of any other tribunals. No appeal can be 
 taken from them, nor can they be set aside, or reviewed by the courts 
 of the United States, nor of any State, but United States courts may, 
 on writ of habeas corpus, inquire into the legality of detention of a 
 person held by military authority, at any time, either before or 
 during trial or while serving sentence, and will order him discharged 
 if it appears to the satisfaction of the court that any of the statutory 
 requirements conferring jurisdiction have not been fulfilled. Their 
 sentences have in themselves no legal effect until they have recei\'ed 
 the approval or confirmation of the proper commanding officer. 
 With such approval or confirmation, however, their sentences become 
 operative and are as effective as the sentences of civil courts having 
 criminal jurisdiction, and are entitled to the same legal consideration. 
 
 34. Conditions necessary to show jurisdiction. — The jurisdiction of 
 every court-martial, and hence the validity of each of its judgments, 
 is conditioned upon these indispensable requisites : 
 
 (a) That it was conyened by an officer empowered by statute to 
 appoint it. 
 
 (6) That the persons who sat upon the court were legally com- 
 petent to do so. 
 
 (c) That the court thus constituted was invested by the acts of 
 Congress with power to try the person and the offense charged. 
 
 {d) That its sentence was in accordance with law. 
 
 "Persons, then, belonging to the Army and the Navy are not sub- 
 ject to illegal or irresponsible courts-martial, when the law for con- 
 vening them and directing their proceedings of organization and for 
 trial have been disregarded. In such cases, everything which may 
 be done is void — not voidable, but void; and civil courts have never 
 failed, upon a proper suit, to give a party redress, who has been 
 
COURTS-MARTIAL— JURISDICTION. 19 
 
 injured by a void process or void judgment. * * * When we 
 speak of proceedings in a cause, or for the organization of the court 
 and for trials, we do not mean mere irregularity in practice on the 
 trial, or any mistaken rulings in respect to evidence or law, but a dis- 
 regard of the essentials required by the statute under which the 
 court has been convened to try and 'to punish an offender for an 
 imputed violation of the law." (Dynes, d. Hoover, 61 U. S. 81; see 
 also Deming v. McClaughry, 113 Fed. Rep., 650; McClaughry v. 
 Deming, 186 U. S., 63; Mullan v. United States, 140 U. S., 240; Ex 
 parte Tucker, 212 Fed. Rep., 569; and A. W. 37.) 
 
 35. Procedure when military and civil jurisdiction concurrent. — 
 Courts-martial have exclusive jurisdiction to try persons subject to mili- 
 tary law for all purely military crimes and offenses ; they have concurrent 
 jurisdiction with the proper civil courts to try such persons for 
 civil crimes and offenses denounced and punished under A. W. 92, 
 93, 94, and 96. (For limitation as to the crimes of murder and 
 rape, see A^ W. 92.) In accoi*danCe with a principle of comity as 
 between the *^ civil and military tribunals in cases of concurrent 
 jurisdiction the jurisdiction which first attaches in a particular case 
 is entitled to proceed to its termination. This is, however, not an 
 inflexible rule and need not govern the action of the military authori- 
 ties in the case of an accused person demanded by the civil authorities 
 to answer for an offense which is primarily one against the civil 
 community. 
 
 When any person subject to military law, except (a) one who is 
 held by the military authorities to answer, or (6) who is awaiting 
 trial, or (c) result of trial, or (d) who is undergoing sentence for a 
 crime or offense punishable by the Articles of War, is accused of a 
 crime or offense committed within the geographical limits of the 
 States of the Union and the District of Columbia, and punishable 
 by the laws of the land, the commanding of&cer is required, except 
 in time of war, upon application duly made, to use his utmost en- 
 deavor to deliver over such accused person, to the civil authorities 
 or to aid the officers of justice in apprehending and securing him, in 
 order that he may be brought to trial. Any commanding officer who 
 upon such application refuses or willfully neglects, except in time 
 of war, to deliver over such accused person to the civil authorities 
 or to aid the officers of justice in apprehending and securing him 
 shall be dismissed from the service or suffer such other punishment 
 as a court-martial may direct. 
 
 When, under the provisions of this article, delivery is made to 
 the civil authorities of an offender undergoing sentence of a court- 
 martial, such delivery, if followed by conviction, shall be held to 
 interrupt the execution of the sentence of the court-martial, and 
 the offender shall be returned to military custody, after having 
 
20 MANUAL FOR COURTS-MARTIAL. 
 
 answered to the civil authorities for his offense, for the completion 
 of the said court-martial sentence. (A. W. 74.) When offenses 
 against the peace and good order of civil communities are committed 
 by persons subject to military law, the proper military authorities 
 will be prompt in the preferring of charges and the arraignment 
 of offenders, having due regard for arrangements existing for the 
 purpose of securing between the authorities of the two jurisdictions, 
 civil and military, mutual aid and cooperation in the administration 
 of justice. In such cases, if, after charges* are preferred, the ofHcer 
 competent to order trial by the proper court-martial deems it inad- 
 visable to bring the case to trial, he will hold the offender and for- 
 ward the charges, with his views thereon, to The Adjutant General 
 of the Army. 
 
 36. Can not be divested by act of accused. — ^A court-martial having 
 once duly assumed jurisdiction of a case, can not, by any wrongful 
 act of the accused, be ousted of its authority or discharged from its 
 duty to proceed fully to try and determine according to law and its 
 oath. Thus the fact that, after arraignment and during the trial, the 
 accused has escaped from military custody furnishes no ground for 
 not proceeeding to a finding, and, in the event of conviction, to a 
 sentence, in the case; and the court may and should find and sentence 
 as in any other case. During such absence it is proper for his counsel 
 to continue to represent him in all respects as though present. 
 
 37. Not territorial. — Military jurisdiction is not territorial. It ex- 
 tends as to persons legally subject to it to offenses committed by them 
 in any place whatsoever, whether within or beyond the territorial 
 jurisdiction of the United States. 
 
 38. When terminated — ^Rule stated. — The jurisdiction of courts-mar- 
 tial over officers, cadets, and soldiers ordinarily ends when they 
 become separated from the service. The following are, howe\'er, 
 exceptions to this general rule: 
 
 (o) If any person, being guilty of any of the offenses of fraud, 
 embezzlement, etc., against the United States, while in the military- 
 service of the United States, receives his discharge or is dismissed 
 from the service, he shall continue to be liable to be arrested and held 
 for trial and sentence by a court-martial in the same manner and to 
 the same extent as if he had not received such discharge nor been 
 dismissed. (A. W. 94.) 
 
 (6) When any ofificer, dismissed by order of the President, makes, 
 in writing, an application for trial, setting forth, under oath, that 
 he has been wrongfully dismissed, the President shall, as soon as the 
 necessities of the service may permit, convene a court-martial to tr}' 
 such officer on the charges on which he shall have been dismissed, 
 and if a court-martial is not so convened within six months from the 
 date of making of such application for trial, or if such court, being 
 
COURTS-MARTIAL— JURISDICTION. 21 
 
 convened, does not award dismissal or death as the punishment of 
 such officer, the order of dismissal by the President shall be void. 
 (R. S. 1230.) 
 
 [Note. — In time of peace no officer shall be dismissed except in pursuance of 
 the sentence of a court-martial or in mitigation thereof. (A. W. 118.)] 
 
 (c) All persons under sentence adjudged by courts-martial remain 
 subject to military law, while under such sentence. (A. W. 2.) 
 
 (d) Where a soldier obtains his discharge by fraud, the discharge 
 may be canceled and the soldier arrested and retttrned to military 
 control. He may also be required to serve out his enlistment and 
 may be tried for his fraud. (Digest, p. 457, XVI, A. 3.) 
 
 (e) An honorable discharge releases from the particular contract 
 and term of enlistment to which it relates, and does not therefore 
 relieve the soldier from the consequences of a desertion committed 
 during a prior enlistment. (Digest, p. 462, XXII, A.) A dishonor- 
 able discharge does not relate to any particular contract or term of 
 enlistment; it is a discharge from the military service as a punish- 
 ment — a complete expulsion from the Army — and covers all unex- 
 pired enlistments. A soldier thus dishonorably discharged can not 
 be made amenable for a desertion or other military offense committed 
 under a prior enlistment except as provided- in A. W. 94. Nor would 
 a subsequent enlistment after such dishonorable discharge operate to 
 revive the amenability of the soldier for such offenses. (Digest, p. 
 
 462, XXII, B.) 
 
 [Note. — For an offense committed prior to the expiration of his term of 
 enlistment, a soldier inay be held in the setvice and tried after the expiration of 
 his term. So, also, a soldier may be tried for offenses committed while making 
 good time lost through desertion, through absence without leave, through dis- 
 ease or injury, the result of his own misconduct, etc.', under A. W. 107.] 
 
 Section II. 
 JURISDICTION OF GENERAL COURTS-MARTIAL. 
 
 39. Persons and offenses — General courts-martial have power (A. W. 
 
 12) to try— 
 
 (o) Any person subject to military law, for 
 
 (b) Any crime or offense made punishable by the Articles of War. 
 [Note. — No officer shall be brought to trial before a general court-martial 
 
 appointed by the Superintendent of the Military Academy. (A. W. 12.)] 
 
 In addition they have power to try — 
 
 (c) Any person other than (a) above, who by the law of war is 
 subject to trial by military tribunals, for 
 
 id) Any crime or offense in violation of the law of war. 
 
 40. Limits of punishment — ^Exception. — Punishment upon conviction 
 is discretionary with a general court-martial, except — 
 
 (a) When mandatory under the law', or 
 
 {b) When limited by order of the President under A. W. 45; in 
 addition, 
 
22 MANUAL FOR COURTS-MARTIAL. 
 
 (c) The death penalty can be imposed only when specifically 
 
 authorized. 
 
 [Note. — The death penalty is mandatory in the case of spies (A. W. 82) ; dis- 
 missal is mandatory for conduct unbecoming an officer and gentleman (A. W. 
 95); either death or imprisonment for life is mandatory for murder and rape 
 (A. W. 92); punishment is mandatory in part and discretionary in part for 
 false muster (A. W. 56), false returns (A. W. 57), officer drunk on duty in time 
 of war (A. W. 85), and personal interest in the sale of provisions (A. W. 87). For 
 limits of punishment fixed by the President under A. W. 45, See Chapter XIII, 
 post, Punishments.] 
 
 Section III. 
 JURISDICTION OF SPECIAL COURTS-MARTIAL. 
 
 41. Persons and offenses. — Special courts-martial shall have power 
 (A. W. 13) to try— 
 
 (i) Any person subject to military law, except — 
 (a) An officer; 
 
 {b) Any person subject to military law belonging to a class or 
 classes excepted by the President, for 
 
 (2) Any crime or offense (not capital) made punishable by the 
 
 Articles of War. 
 
 [Note. — Cadets and soldiers holding a certificate of eligibility for promotion 
 are excepted from the jurisdiction of Special Courts-martial.] 
 
 The following are capital crimes and offenses under the Articles of 
 War, viz. : 
 
 (i) At all times.- — (a) Assaulting or disobeying a superior officer 
 (A. W. 64); (6) mutiny or sedition (A-. W. 66); (c) failure to sup- 
 press mutiny or sedition (A . W . 67) . 
 
 (2) War offenses. — (a) Desertion (A. W. 58); {h) advising or 
 aiding ailother to desert (A. W. 59); (c) misbehavior before the 
 enemy (A. W. 75) ; {d) subordinates compelling commander to 
 surrender (A. W. 76); {e) improper use of countersign (A. W. 77); 
 (/) forcing a safeguard (A. W. 78); (g) relieving, corresponding 
 with, or aiding the enemy" (A. W. 81); Qi) spies (A. W. 82); {i) 
 misbehavior of sentinel (A. W. 86). (C. M. C. M., No. i.) 
 
 42. Limits of punishment. — A special court-martial shall not have 
 power to adjudge — 
 
 (a) Dishonorable discharge, nor 
 
 (b) Confinement in excess of six months, nor 
 
 (c) Forfeiture of more than six months' pay. 
 
 [Note. — (a) Reduction to the ranks in the case of noncommissioned officers 
 and (b) reduction in classification in the cases of first-class privates are within the 
 limits of the punishing power of special courts-martial. (Act of Mar. 2, 1913, 
 37 Stat., 722.)] 
 
 SECTION IV. 
 JURISDICTION OF SUMMARY COURTS-MARTIAL. 
 
 43. Persons and,offenses. — Stunmary courts-martial shall have power 
 (A. W. 14) to try— ' 
 
 (i) Any person subject to military law, except — 
 (a) An officer; 
 
COURTS-MARTIAI^-JURISDICTION. 23 
 
 (b) A cadet; 
 
 (c) A soldier holding the privilege of a certificate of eligibility to 
 promotion ; 
 
 (d) A noncommissioned officer who objects thereto (without the 
 authority of the officer competent to bring him to trial before a gen- 
 eral court-martial) ; 
 
 (e) Any person belonging to a class or classes excepted from the 
 jurisdiction of summary courts-martial by the President. 
 
 (2) Any crime or offense (not capital) made punishable by the 
 
 Articles of War. 
 
 [Note. — For list of capital crimes under the Articles of War see Sec. Ill, 
 par. 41, supra.} 
 
 44. Limits of punishment. — ^A summaj-y court-martial shall not have 
 power to adjudge — 
 
 (a) Dishonorable discharge, 
 
 (&) Confinement in excess of three months, nor 
 
 (c) Forfeittire of more than three months' pay. 
 
 Exception. — ^When the summary court officer is also the command- 
 ing officer, no sentence of such summary court-martial adjudging 
 confinement at hard labor or forfeiture of pay, or both, for a period 
 in excess of one month shall be carried into execution until the same 
 shall have been approved by superior authority. (A. W. 14.) 
 
 [Note. — (a) Reduction to the ranks in the case of noncommissioned officers 
 and (6) reduction in classification in the cases of first-class privates are within 
 the limits of the punishing power of summary coitrts-martial. (Act of Mar. 2, 
 1913, 37 Stat., 723.)] 
 
 SECTION V. 
 JURISDICTION OF OTHER MILITARY TRIBUNALS. 
 
 45. When concurrent with courts-martial. — The provisions of the 
 Articles of War conferring jurisdiction upon courts-martial shall 
 not be construed as depriving military commissions, provost courts, 
 or other military tribunals of concurrent jurisdiction in respect to 
 offenders or offenses that by the law of war may be lawfully triable 
 by such military commissions, provost courts, or other military 
 tribunals. (A. W. 15.) 
 
CHAPTER V. 
 COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 
 
 Page. 
 
 Section I : Arrest and confinement 25 
 
 46. Arrest or confinement of accused persons 25 
 
 47. Who may order arrests 26 
 
 (a) Commanding officers 26 
 
 (b) Judge advocates 26 
 
 (c) Courts-martial 26 
 
 48. Arrest, how executed 26 
 
 49. Status of officer in arrest 26 
 
 50. Arrest of officer without preferring charges 26 
 
 51 . Arrest of medical officer 27 
 
 52. Arrest and confinement of soldiers 27 
 
 53. Status of noncommissioned officers in arrest 27 
 
 54. Abuse of authority to arrest 27 
 
 55. Refusal to receive and keep prisoners 28 
 
 56. Placing prisoners in irons 28 
 
 57. Releasing prisoners without proper authority 28 
 
 Section II : Arrest of deserters by civil authorities 28 
 
 58. Authority for apprehension 28 
 
 59. Authority of citizens other than peace officers to arrest deserters 28 
 
 60. Minority of deserter 29 
 
 Section I. 
 
 ARREST AND CONFINEMENT. 
 
 46. Arrest or confinement of accused persons. — (a) An officer charged 
 with crime or with a serious offense under the articles of war shall be 
 placed in arrest by the commanding officer, and in exceptional cases 
 an officer so charged may be placed in confinement by the same 
 authority. 
 
 (b) A soldier charged with crime or witfc a serious offense under 
 the articles of war shall be placed in confinement, and when charged 
 with a minor offense he may be placed in arrest. 
 
 (c) Any other person subject to military law charged with crime 
 or with a serious offense under the articles of war shall be placed in 
 confinement or in arrest, as circumstances may require; and when 
 charged with a minor offense such person may be placed in arrest. 
 Any person placed in arrest under the provisions of this article 
 
 25 
 
26 MANUAL FOR COURTS-MARTIAL. 
 
 (A. W. 69) shall thereby be restricted to his barracks, quarters, or 
 tent, unless such limits shall be enlarged by proper authority. Any 
 officer who breaks his arrest or who escapes from confinement before 
 he is set at liberty by proper authority shall be dismissed from the 
 service or suffer such other punishment as a court-martial may direct ; 
 and any other person subject to military law who escapes from con- 
 finement or who breaks his arrest before he is set at liberty by proper 
 authority shall be punished as a court-martial may direct. (A. W. 69.) 
 
 [Note. — A failure to place a person subject to military law in arrest or con- 
 finement or the disregard of any custom or formality connected therewith does 
 not affect the jurisdiction of a court.] 
 
 47. Who may order arrests. — (a) Only commanding officers have 
 
 power to place officers in arrest, except as provided in A. W. 68. 
 
 [Note. — The "commanding officer" thus authorized is the commander of the 
 regiment, separate company, detachment, post, department, etc., in which the 
 officer is serving. Digest, p. 481 I D. 1.] 
 
 (b) A judge advocate of a court-martial has no authority to place 
 in arrest an officer or soldier about to be tried by the court, or to com- 
 pel the attendance of the accused before the court by requiring a non- 
 commissioned officer to bring him, or otherwise-. These are duties 
 which devolve upon the convening authority or upon the post com- 
 mander or other proper officer in whose custody or command the accused 
 is at the time. (Digest, p. 498, IV, B, 5.) 
 
 (c) A court-martial has no control over the nature of the arrest or 
 other status of restraint of a prisoner except as regards his personal 
 freedom in its presence. It cannot place an accused person in arrest 
 or confinement nor can the court, even with a view to facilitate his 
 defense, interfere to cause a close arrest to be enlarged. The officer in 
 command is alone responsible for the prisoners in his charge. (Da^'is, 
 p. 62.) 
 
 48. Arrest, how executed. — ^An officer is placed in arrest by his com- 
 manding officer in person or through another officer, by a verbal or 
 written order or communication, advising him that he is placed in 
 arrest, or will consider himself in arrest, or words to that effect. 
 
 49. Status of officer in arrest. — ^An officer in arrest can not exercise 
 command of any kind. He will not wear a sword nor visit officially 
 his commanding or other superior office unless directed to do so. 
 His applications and requests of every nature will be made in 
 writing. (A. R. 926.) * 
 
 50. Arrest of officer without preferring charges. — Officers will not be 
 placed in arrest for light offenses. For these the censure of the 
 commanding officer will generally answer the purpose of discipline. 
 Whenever a commanding officer places an officer in arrest without 
 preferring charges, he will make a written report of his action to 
 the brigade or Coast Artillery district commander, stating the cause. 
 The brigade or Coast Artillery district commander, if he thinks the 
 
COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 27 
 
 occasion requires, will call on the officer arrested for any explanation 
 he may desire to make, and take such other action within his au- 
 thority as he may think necessary, forwarding the papers, with his 
 recommendation, to the department commander, who will, in case a 
 trial is not deemed advisable, forward the papers to The Adjutant 
 General of the Army for file with the officer's record, or for further 
 action. In the case of officers belonging to organizations not attached 
 or belonging to a brigade or Coast Artillery district, the report will 
 be sent directly to the officer exercising general court-martial juris- 
 diction. (A. R. 924.) 
 
 5 1 . Arrest of medical officer. — In ordinary cases where inconvenience 
 to the service would result from it, a medical officer will not be 
 placed in arrest until the court-martial for his trial convenes. 
 (A. R. 925.) 
 
 52. Arrest and confinement of soldiers. — Except as provided in A. W. 
 68, or when restraint is necessary, no soldier will be confined without 
 the order of an officer, who shall previously inquire into his offense 
 (A. R. 930); it is proper, however, for a company commander to 
 delegate to noncommissioned officers of his company the power to 
 place enlisted men in arrest as a means of restraint at the instant 
 when restraint is necessary, but such action must be reported to the 
 company commander at once. (Digest, p. 481, I, E, 1.) 
 
 53. Status of noncommissioned officer in arrest. — Noncommissioned 
 officers will not be confined in company with privates if it can be 
 avoided. When placed in arrest, they will not be required to perform 
 any duty in which they may be called upon to exercise authority or 
 control over others, and when placed in confinement, they will not 
 be sent out to, work. 
 
 54. Abuse of authority to arrest. — The fact that cases of officers put 
 in arrest "at remote military posts or stations" are excepted from 
 the application of A. W. 70 does not authorize an abuse of the power 
 of arrest in these cases. And where, in such a case, an arrest, con- 
 sidering the facilities of communication with the department head- 
 quarters and other circvimstances, is in fact unreasonably protracted 
 without trial the officer is entitled to be released from arrest upon 
 a proper application submitted for the purpose. (Digest, p. 152, 
 LXXI, C.) Though an officer, in whose case the provisions of 
 A. W. 70 in regard to service of charges and trial have not been 
 complied with, is entitled to be released from arrest, he is not author- 
 ized to release himself therefrom. If he be not released in accordance 
 with the article he should apply for his discharge from arrest, 
 through the proper channels, to the authority by whose order the 
 arrest was imposed, or other proper superior. (Digest, p. 153, 
 LXXI, D.) When an officer is placed in arrest in the operation of 
 A. W. 69 and subsequently tried he is not entitled to be released from 
 
28 MANUAL FOR COURTS-MARTIAL. 
 
 arrest, as a right, until the proper reviewing authority has acted on 
 the record of his.case. (Digest, p. 152, LXV, C.) 
 
 55. Refusal to receive and keep prisoners. — No provost marshal or 
 commander of a guard shall refuse to receive or keep any prisoner 
 committed to his charge by an officer belonging to the forces of the 
 United States, provided the officer committing shall, at the time, 
 deliver an account in writing, signed by Ijimself, of the crime or 
 offense charged against the prisoner. Any officer or soldier so refus- 
 ing shall be punished as a court-martial may direct. (A. W. 71.) 
 
 [Note. — A. W. 72 requires every commander of a guard to submit a report 
 in writing to his commanding officer within twenty-four hours after the confine- 
 ment of a prisoner (or as soon as he is relieved from his guard) showing (a) 
 the name of such prisoner, (i) the ofEense charged against him, and (c) the 
 name of the officer committing him. Such report is ordinarily contained in the 
 "Guard report" and presented to the commanding officer by the old officer of 
 the day at guard mounting. For duty of commanding officers to surrender 
 prisoners to civil authorities, see par. 35.] 
 
 56. Placing prisoners in irons. — Prisoners will not be placed in irons 
 except in the extraordinary case of a prisoner who, in the judgment 
 of the commanding officer, is a desperate or dangerous character, in 
 which case report of action and the circumstances will be immediately 
 made to the department or tactical division commander. When a 
 prisoner is removed from irons a report of that action will be made to 
 the department or tactical division commander. A prisoner may be 
 shackled or handcuffed while being transported from one post to another, 
 or from a post to a penitentiary, when, in the judgment of the 
 officer in charge, the escape of the prisoner can not otherwise be pre- 
 vented. (A. R. 935.) 
 
 57. Releasing prisoner without proper authority. — Any person subject 
 to military law, who, without proper authority, releases any prisoner 
 duly committed to his charge, or who, through neglect or design, 
 suffers any prisoner so committed to escape, shall be punished as a 
 court-martial may direct. (A. W. 73.) 
 
 Section II. 
 ARREST OF DESERTERS BY CIVIL AUTHORITIES. 
 
 58. Authority for apprehension. — It shall be lawful for any civil 
 officer having authority under the laws of the United States, or of 
 any State, Territory, District, or possession of the United States, to 
 arrest offenders, summarily to arrest a deserter from the military 
 service of the United States and deliver him into the custody of 
 the military authorities of the United States. (A. W. 106.) 
 
 59. Authority of citizens other than peace officers to arrest deserters. 
 — The statute conferring authority upon civil officers to apprehend 
 and deliver deserters (A. W. 106) should not be construed as taking 
 away the authority for their apprehension by a citizen under an 
 
COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 29 
 
 order or direction of a military officer, but the legislation should be 
 treated as providing an additional means of securing the arrest of 
 deserters by conferring authority upon civil officers to apprehend 
 thern without military orders — ^leaving the former method still legal. 
 The offer of reward for the apprehension and delivery of a deserter, 
 coupled with the act of Congress which provides for the payment 
 of such a reward, is considered sufficient authority for the arrest of 
 the deserter by a citizen. (C-17327-A, July 20, 1909.) 
 
 60. Minority of deserter. — The right of the United States to arrest 
 and bring to trial a deserter is paramount to any right of control over 
 him by a parent on the ground of his minority. (See Digest, p. 401, 
 III, G; In re Cosenow, 37 Fed. Rep., 668; In re Kaufman, 41 Fed. 
 Rep., 876; and compare In re Grimley, 137 U. S., 147, and in re 
 Morrissey, 137U.S., 157.) 
 
CHAPTER VI. 
 COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 
 
 [Continued.] 
 
 Page. 
 
 Section I : Preparation of charges 31 
 
 61. Definitions 31 
 
 62. Who may initiate charges 32 
 
 63. Who may prefer charges 32 
 
 64. Signing charges 32 
 
 65. Accumulation o'f charges 32 
 
 66. Duplication of charges 33 
 
 67. Consolidation of charges 33 
 
 68. Refusal to submit to medical treatment 33 
 
 69. Joint charges 34 
 
 70. Charges not to be preferred upon uncorroborated confession 34 
 
 71. Charges for private indebtedness 35 
 
 72. Numbering charges and specifications 35 
 
 73. Additional charges 36 
 
 74. Rules to be observed in pleading 36 
 
 (o) Statement of charge 36 
 
 (6) Statement of specification 36 
 
 (c) Alternative pleading 36 
 
 (d) Evidence not to be pleaded 37 
 
 (e) Specific articles, when used 37 
 
 (/) Forms for charges 37 
 
 (g) Time and place _. 37 
 
 (h) Christian name 38 
 
 ii) Charging under alias 38 
 
 (j) General prisoners 38 
 
 {k) Change of rank 39 
 
 (/) Written papers and oral statements 39 
 
 (m) Scandalous and disgraceful offenses 39 
 
 (re) Desertion followed by fraudulent. enlistment 39 
 
 (o) Larceny and sale of public property 39 
 
 (p) Wording of statute to be followed 40 
 
 Section II : Action upon charges 40 
 
 75. Submission of charges 40 
 
 76. Investigation of charges 40 
 
 77. Prompt action required 41 
 
 78. Determination of proper trial court 41 
 
 79. Disposition of copies of charges 42 
 
 80. Service of charges upon accused 42 
 
 Section I. 
 
 PREPARATION OF CHARGES. 
 
 61. Definitions. — ^A charge corresponds to a civil indictment. It 
 consists of two parts — the technical "charge," which should designate 
 
 31 
 
32 MANUAL FOR COURTS-MARTIAL. 
 
 the alleged crime or offense as a violation of a particular article of 
 war or other statute, and the "specification," which sets forth the 
 facts constituting the same. The requisite of a charge is that it 
 shall be laid under the proper article of war or other statute; of a 
 specification, that it shall set forth in simple and concise language 
 facts sufficient to constitute the particular offense and in such man- 
 ner as to enable a person of common understanding to know what 
 is intended. The general term "charges," in the sense that the 
 word "charge" is used in the first sentence of this paragraph, 
 includes any number of technical charges and their specifications. 
 
 [Note. — For forms for changes see Appendix 4.] 
 
 62. Who may initiate charges. — Military charges^ though commonly 
 originating with military persons, may be initiated by civilians. 
 Indeed, it is but performing a public duty for a civilian who becomes 
 cognizant of a serious offense committed by an officer or a soldier to 
 bring it to the attention of the proper commander. A charge may 
 likewise originate with an enlisted man. But by the usage of the 
 service all military charges should be formally preferred by — that is, 
 authenticated by the signature of — a commissioned officer. Charges 
 proceeding from a person outside the Army and based upon testi- 
 mony not in the possession or knowledge of the military authorities, 
 should, in general, be required to be sustained by affidavits or other 
 reliable, evidence, as a condition to their being adopted. (Digest, p. 
 482, II, B.) 
 
 63. Who may prefer charges. — ^Any officer may prefer charges. An 
 officer is not disqualified from preferring charges by the fact that 
 he is himself under charges or in arrest. (Digest, p. 483, II, C.) 
 
 64. Signing charges. — The officer preferring charges will sign his 
 name following the last specification, adding his rank and organiza- 
 tion in the Army. 
 
 The signing of charges, like orders, with the name of an officer, 
 adding "by order of" his commander, is unusual and not to be 
 recommended. (Digest, p. 487, II, D, 12, a.) The signattire of 
 the officer preferring charges forms no part of the charges 'them- 
 selves, but such signature will nevertheless be copied into the record 
 of trial by a general or special court-martial, in order that it may 
 affirmatively appear whether the officer preferring the charges (who 
 is prima facie the accuser) sat as a member of bhe court. (See A. W. 
 8,9.) 
 
 65. Accumulation of charges. — It may sometimes be expedient, where 
 the offenses are sUght in themselves and it is deemed desirable to 
 exhibit a continued course of conduct, to wait, before preferring 
 charges, till a series of similar acts have been committed,- provided 
 
'COURTS- MARTIAL— PROCEDURE PRIOR TO TRIAL. 33 
 
 the period be not unreasonably prolonged; but, in general, charges 
 should be preferred and brought to trial immediately or presently 
 upon the commission of the offenses. Anything like an accumula- 
 tion or saving up of charges, through a hostile animus on the part 
 of the accuser, is discountenanced by the sentiment of the service. 
 (Digest, p. 490, II, F, 2.) 
 
 66. Duplication of charges. — The duplication of charges for the same 
 act or mission will be avoided except when, by reason of lack of 
 definite information as to available evidence, it may be necessary to 
 charge the same act or omission as constituting two or more distinct 
 offenses. When the same act or omission in its different aspects is 
 charged as constituting two or more offenses, the court, even though 
 it arrives at a finding of guilty in respect of two or more specifica- 
 tions, should impose punishment only with' reference to the act or 
 omission in its most important aspect, and if this rule be not ob- 
 served by the court the reviewing authority should take the neces- 
 sary action. Thus a soldier should not be punished for disorderly 
 conduct and for assault, when the disorderly conduct consisted in 
 making the assault. And so, a person subject to military law should 
 not be charged under A. W. 61 for failure to report for a routine 
 duty at a time included in a period for which he is charged with 
 absence without leave under the same article; other-n^ise, when the 
 duty is not a routine duty. Routine duties are those that are regu- 
 larly scheduled, such as reveille, retreat, stables, fatigue, schools, 
 drills, and parades, but do not include practice marches or other 
 previously specially appointed and important exercises, of which 
 the accused is chargeable with notice. 
 
 67. Consolidation of charges. — Ordinarily all the charges against the 
 accused should be consolidated into one set of charges, and one trial 
 had upon the consolidated set instead of having two or more trials, 
 one upon each set. To avoid taking up unnecessarily the time of a 
 court with minor offenses, where charges are preferred for serious 
 offenses, there should not be joined with them charges for minor 
 derelictions, unless the latter serve to explain the circumstances sur- 
 rounding the serious charges. For instance charges for desertion 
 should not ordinarily be joined with charges for losing through neg- 
 lect Government property of small value; nor should charges for 
 willful disobedience of the orders of a commissioned officer ordinarily 
 be joined with charges for an absence from a routine duty. 
 
 68. Refusal to submit to medical treatment. — An officer or soldier may 
 be charged for refusing to submit to a surgical operation or rnedical 
 treatment at the hands of the military authorities if it is designed 
 to restore or increase his fitness for service, and is without risk of 
 life. 
 
34 MANUAL FOR COURTS-MARTIAL. 
 
 A soldier who refuses to submit to a surgical operation that the 
 attending surgeon certifies is without risk to his life and is neces- 
 sary for the removal of a disability that prevents the full perform- 
 ance of any or all military duties that properly can be required of 
 him will, for -such refusal, ■ be brought to trial by general court- 
 martial; but if in any such case the attending surgeon is in doubt as 
 to whether the proposed operation involves risk to life, the soldier 
 will not be brought to trial but will be -discharged on surgeon's cer- 
 tificate of disability. (G. 0. 43, War Dept., 1906.) 
 
 69. Joint charges. — Where two or more persons jointly and in pu 
 suance of a common intent commit a crime or offense which can be 
 committed by a combination of persons acting in concert, they may 
 be separately charged and tried for such crime or offense or may be 
 jointly charged and jointly tried. The actual presence of all of the 
 accused persons at the actual commission of the offense is not neces- 
 sary, for all who take part in the enterprise are equally guilty, 
 though they may be absent from the place of actual commission of 
 the offense with which they are charged. The fact that justice may 
 require that different degrees of punishment be awarded to the dif- 
 ferent parties constitutes no objection to such a joint prosecution. 
 The mere facj of their committing the same offense together and at 
 the same time, although material as going to show concert, does not 
 necessarily establish it. Thus the fact that several soldiers have ab- 
 sented themselves together without leave will not, in the absence of 
 evidence indicating a concert of action, justify their being arraigned 
 together on a joint charge, for they may merely have been availing 
 themselves of the same convenient opportunity of leaving. Nor is 
 desertion, unless in execution of a conspiracy, chargeable as a joint 
 offense. (Digest, p. 484, II, D, 7.) In joint charges the form of 
 the charge does not differ from that in other charges. The form of 
 specification will read as follows ; 
 
 In that Private , Company , Infantry; Private , 
 
 Company , Infantry; and Private , Company , 
 
 Infantry, acting jointly, and in pursuance of a common intent, did [here allege 
 the offense in the language prescribed where the offense is committed by only 
 one person]. 
 
 The right of challenge may, of course, be exercised by each of the 
 accused. (C. M. C. M., No. i.) 
 
 70. Charges not to be preferred upon uncorroborated confession. — 
 
 Charges should not be preferred for an offense unless there is some 
 evidence other than the confession of the accused that the offense 
 has been committed. This applies particularly in cases of fraudulent. 
 
COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 35 
 
 enlistment. The mere confession by the accused that he had prior 
 service, or was under a certain disabihty at the time he enlisted, 
 and concealed that fact should sot be made the basis for charges 
 unless there is something confirming the confession. Charges should 
 not be preferred in such cases until corroborating evidence that the 
 offense was committed has been secured, or that, the existence of such 
 evidence being ascertained, the necessary steps to obtain it have been 
 taken. (See par. 225.) 
 
 71. Charges for private indebtedness. — The military authorities will 
 not attempt to discipline officers and soldiers for failure to pay dis- 
 puted private indebtedness or claims — that is, indebtedness or a 
 claim where, in the opinion of the military authorities, there is a 
 genuine dispute as to the facts or law — nor will the military authori- 
 ties attempt to decide such disputed indebtedness or claims. If the 
 indebtedness is disputed the creditor should resort to the civil courts 
 to establish the liability. If, in the opinion of the military authori- 
 ties, the facts and law are undisputed and there appears to the mili- 
 tary authorities to be a private indebtedness, and the officer or soldier 
 does not claim to have a legal or equitable set-off or counterclaim to 
 urge against it, an officer may be brought to trial if his failure is con- 
 sidered to be a violation of A. W. 95 or A. W. 96, and a soldier may 
 be tried if his failure is considered to be a violation of A. W. 96, but 
 no action will be taken by the military authorities to enforce pay- 
 ment. If an officer or soldier by his conduct in incurring the in- 
 debtedness or by his attitude toward it or his creditor thereafter 
 reflect discredit upon the service to which he belongs, he should be 
 brought to trial for his misconduct. If the facts and law, in the 
 opinion of the military authorities, are undisputed and there appears 
 to the military authorities to be no indebtedness, the department will 
 take no further action. Where a soldier wds largely indebted and 
 failed to pay his indebtedness and the commanding officer denied the 
 soldier all pass privileges until the indebtedness was paid, it was 
 held that such action on the part of the commanding officer consti- 
 tuted an attempt to enforce pa3mient of the indebtedness and was 
 contrary to the policy of the War Department and such action should 
 be revoked. (Digest, p. 878, IV.) 
 
 72. Numbering charges and specifications. — ^Where there are several 
 specifications under one article, the usual procedure is to place them 
 all .under one charge, rather than to make several charges with one 
 specification under each. Where there are several specifications under 
 one charge they will be consecutively numbered, and where there are 
 several charges, the charges will be consecutively numbered. 
 
36 MANUAL FOR COURTS-MARTIAL. 
 
 1 
 
 73. Additional charges. — New and separate charges which are pre- 
 ferred after others have been preferred are known in miUtary law 
 as "additional charges." Such charges may relate to past transac- 
 tions which were not known by or brought to the attention of the 
 officer framing or ordering the original charges at the time they 
 were preferred; or they may, as is more frequent, arise from acts 
 of the accused subsequent to his arrest or confinement on the original 
 charges. Thus, if after charges have been preferred he commits a 
 "breach of arrest," an additional charge will properly be preferred 
 in the case, and should be designated as an "additional" charge. 
 Charges of this character do not require a separate trial, but may 
 and preferably should be tried by the same court that tries the 
 original charges, and at the same time subject to the limitation re- 
 garding service of charges contained in A. W. 70. If practicable to 
 consolidate the two sets of charges this should be done, otherwise 
 the second set will be denominated "additional" charges. After the 
 court has been duly sworn to try and determine "the matter now 
 before it" additional charges which the accused has had no notice to 
 defend and regarding which the right to challenge has not been 
 accorded him, can not be introduced or the accused required to plead 
 thereto. Such charges must await a separate trial. (See Winthrop 
 pp. 225, 226.) (C. M. C. M., No. i.) 
 
 74. Rules to be observed in pleading. — (a) Statement of charge. — 
 The charge should be limited to a statement of the article violated, 
 as "Violation of the 58th article of war," or "violation of the 85th 
 article- of war." Common law and statutory crimes, not specified in 
 the Articles of War, over which courts-martial have jurisdiction 
 should, if not capital, be charged under A. W. 96. 
 
 (6) Statement of specification. — The specification need not possess 
 the technical nicety of an indictment. In general a bald statement of 
 the facts in simple and concise language, and in such a manner as to 
 enable a person of common understanding to know what is intended 
 is sufficient, provided the offense itself be distinctly and accurately 
 described. More specifically, (1) the name, rank, title, and organiza- 
 tion of the accused person, if he belongs to the Army of the United 
 States, should be stated, or if he is a civilian he should be so 
 described that it appears he is a person subject to military law, or by 
 statute or the law of war, is subject to trial by military tribunals; 
 (2) the facts that constitute the offense charged will be set out briefly 
 but clearly, together with the place and time of commission. Care 
 should be taken that all the elements of the offense as denounced in 
 the article of war or other statute are set forth. The specification 
 must be appropriate to the charge. (See Winthrop, p. 189, and 
 authorities there cited.) 
 
COURTS-MARTIAI^— PROCEDURE PRIOR TO TRIAL. 37 
 
 (c) Alternative pleading, — A specification should not allege two 
 offenses in the alternative. For example, an offense under A. W. 84 
 can not be charged by the words, "did sell or through neglect lose." 
 If, as the result of an investigation, there is dOubt whether the prop- 
 erty has been sold or lost, both offenses may be charged under sepa- 
 rate specifications. Care will be taken in every case where an article 
 of war includes two or more offenses to see that each specification 
 alleges but a single offense. (See Digest, p. 487, II, D, 11, d.) 
 
 (d) Evidence not to be pleaded. — It is not good pleading in al- 
 leging an offense to state the circumstances or evidence proving or 
 tending to prove it, such as the acts, occui^ences, and matters of de- 
 scription, which should properly form part of the testimony of 
 witnesses; but there is no objection to- stating very briefly in the 
 specification the immediate result or effect of the act charged as a 
 circumstance of description illustrating the character and extent of 
 the offense committed. For instance, in charging a striking or doing 
 of violence to a superior officer under A. W. 64, it is allowable, in a 
 case where the assault was fatal, to add in the specification, "thereby 
 causing his death," as indicating the measure of violence employed. 
 (Digest, p. 488, II, D, 14, a.) 
 
 (e) Specific articles, when used. — When a crime or offense is spe- 
 cifically provided for in an article of war, the charge will be laid 
 under that article and not under the general article, i. e., under A. W. 
 96. This rule is particularly to be observed when the crime or offense 
 falls under an article which prescribes a fixed punishment. (See, 
 however, A. W. 37.) 
 
 [Note. — In charging offenses against cadets for violation of regulations of the 
 Military Academy, the offense, if covered by a specific article applicable to 
 cadets, will be laid under that article (G. O. 64, War Dept., 1906), otherwise it 
 will be laid under the general article.] 
 
 (/) Forms for charges. — The forms for charges and specifications 
 set forth in Appendix 4 cover most of the offenses that are tried by 
 military courts and covered in the maximtun-punishment order. 
 These forms may be followed, in the cases to which they apply, but 
 they are not mandatory. 
 
 (g) Time and place. — The allegations of the time and place of the 
 commission of an offense should be stated as accurately as possible, 
 but where the act or acts charged extend over a considerable period 
 of time it may be necessary to cover such period in the allegation. 
 Thus allegations of "from March to September, 1887," and "from 
 May to October, 1888," have been countenanced in a case in which 
 the accused was charged with the neglect of a duty that required con- 
 tinuous performance. (Digest, p. 486, II, D, 10, b.) So, also, it is 
 proper to allege that an offense was committed while "en route" be- 
 tween certain points. (Digest, p. 486, II, D, 9, b.) So where the 
 exact time or place of the commission of the offense is not known it 
 
38 ' MANUAL FOR COURTS-MARTIAL. 
 
 is frequently preferable to allege it as having occurred "on or about" 
 a certain date or time, or "at or near" a certain locality, rather than 
 to aver it as committed on a particular day or between two specified 
 days or at a particular place. There is no defined construction to be 
 placed upon the words "on or about" as used in the allegation of 
 time in a specification. The phrase can not be said to cc'ver any 
 precise number of days or latitude in time. It is ordinarily used in 
 military pleading for the purpose of indicating some period, as 
 nearly as can be ascertained and set forth, at or during which the 
 offenses charged are believed to have been committed — in cases where 
 the exact day can not well be named. And the same is to be said as 
 to the use of the words "at or near" in connection with the averment 
 of place. (Digest, p. 485, II, D, 9, a.) If the specification alleges 
 the offense to have been committed "on" a certain date or "at" a 
 certain place, the court in its findings may, by exceptions and substi- 
 tutions, find another date or place if the evidence supports such 
 amendments, provided the new date or place is sufficiently near the 
 one alleged that an injustice is not done the accused. In preparing 
 several specifications under one charge, the time and place of the 
 alleged offense will be given in each specification. 
 
 (h) Christian name. — The Christian name of an accused should be 
 used in preparing charges, but where there are one or more middle 
 names they may be indicated by the initials only. In the case of a 
 person in the military service the name used in the charges should 
 correspond to that borne by the accused on the muster rolls or the 
 Army register. 
 
 (i) Charging under "alias.". — If the accused is known by two 
 names, as where a soldier enlists under a name different from that 
 under which he was known in his prior enlistment, both the heading 
 of the charge and the specification will describe him under his true 
 name and also under his assumed name as an alias. 
 
 (/) General prisoners. — In charging a general prisoner with an 
 offense, the form of the charge will not be changed but the specifica- 
 tion will read as follows : 
 
 In that General Prisoner A B did [here allege the offense in the 
 
 language prescribed when it is committed by an officer or soldier]. 
 
 It is not necessary to allege in the specification that the general 
 prisoner was formerly a soldier, was tried by a general court-martial, 
 and sentenced to dishonorable discharge and a term of confinement, 
 and that he committed the offense while serving such confinement. 
 The words "general prisoner" necessarily import such facts. 
 
 [Note. — General prisoners are persons sentenced to dismissal or dishonor- 
 able discharge and to terms of confinement at military posts or elsewhere.] 
 
COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 39 
 
 {k) Change of rank.- — ^Where the rank of the accused has changed 
 since the commission of an, offense, the specification will read as fol- 
 lows: 
 
 In that Private A B , Company , Infantry, then 
 
 sergeant, Company , Infantry, did, etc. 
 
 (Z) Written papers and oral statements. — ^A specification in alleg- 
 ing the violation of an order which has been given in writing, or of 
 any written obligation — as an oath of allegiance, parole, etc. — should 
 preferably set forth the writing verbatim, or at least state fully its 
 substance, and then clearly specify the act or acts which constitute 
 its alleged violation. Oral statements should be alleged in as nearly 
 the exact words as possible, but should always be qualified by the 
 words "or words to that effect," or some similar expression, since 
 proof will generally vary as to some word or words, particularly if 
 some time has elapsed since the incident. A similar rule obtains in 
 cases involving insubtrdinate or disrespectful language. 
 
 (w) Scandalous and disgraceful ojffenses: — In framing charges it 
 is permissible, under the custom of the service, after alleging the 
 facts in the specification, to add, "This to the scandal and disgrace 
 of the military service." This form of charge is appropriate im cases 
 of particularly disgraceful conduct occurring in the presence of a 
 number of persons, particularly civilians, or in uniform, or other- 
 wise resulting in publicity. 
 
 (n) Desertion followed by fraudulent enlistment.- — Enlistment by 
 a soldier in desertion is fraudulent. Such soldier should be charged 
 with desertion under A. W. 58, and with fraudulent enlistment 
 under A. W. 54. (Cir. 28, War Dept., 1908.) A fraudulent enlist- 
 ment is no defense to a charge of desertion but is proof of such deser- 
 tion, for a soldier can not be excused from repudiating a pending 
 contract by substituting another in its place. In such a case the 
 status of desertion remains, notwithstanding the deserter's presence 
 in the military service under a fraudulent enlistment, until he sur- 
 renders as a deserter or is apprehended as such. For a single deser- 
 tion followed by a fraudulent enlistment, but one specification for 
 desertion will be preferred, in addition to the specification for fraud- 
 ulent enlistment. 
 
 [Note. — A. W. 29 constitutes a rule of evidence and is not a punitive article.] 
 
 (o) Larceny and sale of public property. — In cases of larceny of 
 property (not described in A. W. 94) where the accused has sold the 
 stolen property, the charges should not include specifications alleg- 
 ing the sale except where the same has been made to an innocent 
 party and constitutes such a fraud upon the purchaser as to warrant 
 the preferment of a specification based upon such fraud. Proof of 
 
40 MANUAL FOR COURTS-MARTIAL. 
 
 a subsequent sale of stolen property goes to show intent to steal, and, 
 therefore, evidence of such sale should be introduced to support 
 charges of larceny, wherever available. Larceny and sale of United 
 States property in violation of A. W. 94 should each be charged in 
 separate specification^, since that article denounces both offenses. 
 
 (p) Wording of statute to be followed. — Wherever practicable the 
 exact wordfe of' the articles of war will be followed. A person under 
 the influence of intoxicating liquor which incapacitates him mentally 
 or physically for the proper performance of duty is "drunk." There- 
 fore, under A. W. 85 the word "drunk" will be used. So in charg- 
 ing other offenses involving drunkenness no other word or phrase 
 will be used as a substitute for "drunk." Under such charges the 
 court should not in its findings substitute such phrases as "under the 
 influence of intoxicating liquor" and "intoxicated" for "drunk." 
 
 Section II. 
 ACTION UPON CHARGES. 
 
 75. Submission of charges. — ^All charges for trial by coxu-t-martial 
 will be prepared in triplicate, using the prescribed charge sheet as a 
 first sheet and using such additional sheets of ordinary paper as are 
 required. They will be accompanied — 
 
 (a) Except when trial is to be had by simmiary court, by a brief 
 statement of the substance of all material testimony expected from 
 each material witness, both those for the prosecution and those for 
 the defense, together with all available and necessary information as 
 to any other actual or probable testimony or evidence in the case; and 
 
 (6) In the case of a soldier, by properly authenticated evidence of 
 convictions, if any, of an offense or offenses committed by him during 
 his current enlistment and within one year next preceding the date 
 of the alleged commission by him of any offenses set forth in the 
 charges. 
 
 They will be forwarded by the officer preferring them to the officer 
 immediately exercising summary court-martial jurisdiction over the 
 command to which the accused belongs, and will by him and by each 
 superior commander into whose hands they may come either be 
 i;eferred to a court-martial within his jurisdiction for trial, forwarded 
 to the next superior authority exercising court-martial jurisdiction 
 over the command to which the accused belongs or pertains, or other- 
 wise disposed of as circumstances may appear to require. 
 
 76. Investigation of charges. — If the officer immediately exercising 
 summary court-martial jurisdiction over the command to which the 
 accused belongs or pertains decides to forward the charges to superior 
 authority he will, before so doing, either carefully investigate them 
 
COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 41 
 
 himself or will cause an officer other than the officer preferring the 
 charges to investigate them carefully and to report to him, orally or 
 otherwise, the result of such investigation. The officer investigating 
 the charges will afford to the accused an opportunity to make any 
 statement, offer any evidence, of present any matter in extenuation 
 that he may desire to have considered in connection with the accusa- 
 tion against him. (See par. 225 (5), p. 112.) If the accused de- 
 , sires to submit nothing, the indorsement will so state. In his 
 indorsement forwarding the charges to superior authority the com- 
 manding officer will include : 
 
 (a) The name of the officer who investigated the charges; 
 
 (b) The opinion of both such officer and himself as to whether the 
 several charges can be sustained; 
 
 (c) The substance of such material statement, if any, as the accused 
 may have voluntarily made in connection with the case during 
 the investigation thereof ; 
 
 (d) A summary of the extenuating circumstances, if any, con- 
 nected with the case ; 
 
 (e) His recommendation of action to be taken. 
 
 77. Prompt action required. — No person put in arrest shall be con- 
 tinued in confinement more than eight days, or until such time as a 
 court-martial can be assembled. When any person is put in arrest 
 for the purpose of trial, except at remote miUtary posts or stations, 
 the officer by whose order he is arrested shall see that a copy of the 
 charges on which he is to be tried is served upon him within eight days 
 after his arrest, and that he is brought to trial within ten days there- 
 after, unless the necessities of the service prevent such trial; and then 
 he shall be brought to trial within thrity days after the expiration 
 of said ten days. If a copy of the charges be not served, or the ar- 
 rested person be not brought to trial, as herein required, the arrest 
 shall cease. But persons released from arrest, under the provisions 
 of A. W. 70, may be tried whenever the exigencies of the service 
 shall permit, within twelve months after such release from arrest. 
 (A. W. 70.) 
 
 78. Determination of proper trial court. — ^When an officer who exer- 
 cises court-martial jurisdiction receives charges against an enlisted 
 man it is his duty to consider whether they shall be tried by gen- 
 eral, special, or simimary court-martial. He should not withhold 
 charges from trial by special or svimmary court solely for the rea- 
 son that the maximum limit of punishment is beyond the juris- 
 diction of such courts to impose. On the other hand, he should 
 not refer to a special or summary court-martial offenses which by 
 reason of their inherent gravity or of the circvimstances surrounding 
 their commission merit greater formality of trial or more condign 
 punishment than is found in the procedure or jurisdiction of such 
 courts. No fixed rule can be laid down and the matter must be de- 
 
42 MANUAL FOR COURTS-MARTIAL. 
 
 cided by the careful consideration of commanders subject to the 
 limitations that while, in a proper case, desertion may be tried 
 before a special court, felonies and crimes involving moral turpitude 
 should not be, and capital crimes can not be tried by special or sum- 
 mary courts-martial. (A. W. 13, 14. For list of capital crimes and 
 offenses see Chap. IV, Sec. III.) 
 
 79. Disposition of copies of charges. — (o) When trial is to be had by 
 summary court the charges will be completed as the record of trial, a 
 copy thereof will be completed as a copy of the summary court record 
 for the company or other commander, and the other copy will, with 
 the least practicable delay after action has been taken on the sentence, 
 be completed and transimitted as the required report of trial to the 
 officer exercising general court-martial jurisdiction over the com- 
 mand, there to be filed in the office of the judge advocate for a period 
 of two years, at the end of which time it may be destroyed. 
 
 (b) When trial is to be had by special or general court-martial the 
 charges and one copy thereof will be referred to the trial judge advo- 
 cate, the copy to be furnished by him to the accused or his counsel, 
 and the other copy will be used for record purposes in the office of the 
 officer appointing the trial court, the top fold of this copy of the 
 charge sheet, in case of trial by general court-martial, being detached 
 at the proper time and forwarded with the record of trial to the Judge 
 Advocate General of the Army. 
 
 80. Service of charges upon accused. — In order that the accused may 
 have sufficient time to prepare for his defense it is provided by A. W. 
 70 that in time of peace no person shall, against his objection, be 
 brought to trial before a general court-martial within a period of five 
 days subsequent to the service of charges upon him. 
 
CHAPTER VII. 
 COURTS-MARTIAL— ORGANIZATION. 
 
 Page. 
 
 Section I: The Members 44 
 
 81 . Place of meeting — Duties of members '. 44 
 
 82. Uniform 44 
 
 83. Seating of court 44 
 
 84. RoUcall ' 44 
 
 85. Absence of member 44 
 
 86. Decorum to be observed 45 
 
 87. Control of court over accused 45 
 
 88. Accused not to be tried in irons 45 
 
 89. Duties of the president 45 
 
 90. Voting 46 
 
 91. Closed sessions 46 
 
 92. Sitting with closed doors 47 
 
 93. Change in membership 47 
 
 Section ll : The judge advocate 47 
 
 94. Selection 47 
 
 95. General duties 48 
 
 96. Duty toward accused 48 
 
 97. Examination of charges 49 
 
 98. Whole truth to be presented 49 
 
 99. Legal adviser of the court 49 
 
 100. Freedom in conducting case 49 
 
 101. Closed sessions 50 
 
 102. Accuser or prosecutor 50 
 
 103. Expediting trials 50 
 
 104. Weekly reports 50 
 
 105. Detail of orderly ; . . . 50 
 
 Section III : Assistant judge advocate 51 
 
 106. Appointment 51 
 
 107. Duties 51 
 
 Section IV: Counsel 51 
 
 108. Appointment 51 
 
 109. Duty of officer as counsel 52 
 
 110. Right to interview the accused 52 
 
 111. Witnesses, how questioned during trial 52 
 
 Section V: Reporter 52 
 
 112. Employment 52 
 
 113. Compensation 53 
 
 Decisions (o) to (/) 53 
 
 114. Disposition of vouchers 54 
 
 115. Detail of soldier ". 54 
 
 116. Time limit for completing record ,. 54 . 
 
 117. Carbon copies of the record 54 
 
 118. Extra compensation for clerical duties 55 
 
 Section VI: Interpreter 55 
 
 119. Employment and pay 55 
 
 43 
 
44 MANUAL FOR COURTS-MARTIAL, 
 
 Section I. 
 THE MEMBERS. 
 
 81. Place of meeting — Duties of members. — The authority appoint- 
 ing a general or special court-martial designates the place for holding 
 the court, hour of meeting, the members of the court, and the judge 
 advocate. A general or special court-martial assembles at its first 
 session in accordance with the order convening it; thereafter, accord- 
 ing to adjournment. Courts will be assembled at posts or stations 
 where trial will be attended with the least expense. A member sta- 
 tioned at the place where the court sits is liable to duty with his 
 command during adjournment from day to day. Subject to any 
 instructions that may be given by the authority that appoints the 
 court, the court will determine the hours of holding its sessions. 
 
 82. Uniform. — For regulations regarding uniform to be worn by 
 members of courts-martial, the judge advocate, the accused, and wit- 
 nesses see Regulations for the Uniform of the United States Army. 
 In any case of doubt (as where the court consists of members but 
 recently mustered into the service), the president of the court will 
 designate the uniform in the notice sent to members notifying them 
 of the place and hour of meeting of the first session. 
 
 83. Seating of court. — When the court is ready to proceed it is called 
 to order by the president. Members will be seated according to 
 rank, alternately to the right and left of the president. The judge 
 advocate, the accused, and his counsel are seated so as to be most 
 easily seen and heard by all the members of the court. The reporter 
 should be seated near the judge advocate. 
 
 84. Roll call. — At the beginning of each session the judge advocate 
 
 verifies the presence or absence of the members of the court by calling 
 
 each officer's name or by informally noting his presence or absence. 
 
 This verification is noted in the record. (See Appendices G, 7 for" 
 
 record of general and special courts-martial.) When the accused 
 
 and his counsel appear before the court for the first time the judge 
 
 advocate will announce their names to the court. 
 
 [Note. — For number necessary to constitute a, quorum of a general or special 
 court-martial and the procedure to be taken when the number is reduced below 
 five, see par. 7.] 
 
 85. Absence of member. — A member of a court-martial who knows 
 or has reason to believe, that he will, for a, proper reason, be absent 
 from a session of the court, will inform the judge advocate accord- 
 ingly. When a member of a court-martial is absent from a session 
 thereof, the judge advocate will cause that fact, together with the 
 reason for such absence if known to him, to be shown in the record of 
 proceedings. If the reason for such absence is not known to the judge 
 advocate, he will cause the record to show the member as absent, cause 
 
COURTS-MARTIAL— ORGANIZATION. 45 
 
 unknown. In any event, the appointing authority will take such 
 action, if any, relative to such absence as he may deem proper. 
 
 86. Decorum to be observed. — Trials before courts-martial will be 
 conducted with the decorum observed in civil courts. The conduct 
 of members should accordingly be dignified and attentive. Reading 
 of newspapers or other evidence of inattention by members of a 
 court-martial during its sessions constitutes a neglect of duty to the 
 prejudice of good order and military discipline. It is the duty of 
 the president of the court to admonish against such inattention, and 
 charges may be preferred against a member who does not heed the 
 admonition. A ' court-martial has no power to puilish its members, 
 but a member is liable to charges and trial for improper conduct 
 as for any other offense against military discipline. Improper words 
 used by a member should be taken down in writing and any dis- 
 orderly conduct reported to the appointing authority. During the 
 reading of the order appointing the court and the arraignment the 
 judge advocate, the accused, and his counsel will stand; while the 
 court and the judge advocate are being sworn all persons concerned 
 with the trial, including any spectators present, will stand; when 
 the. reporter, an interpreter, or a witness is being sworn he and the 
 judge adyocate will stand; and when the judge advocate, the accused 
 or his counsel addresses the court, he will rise. (For punishment for 
 contempts, see Chapter X, Sec. I, par. 173.) 
 
 87. Control of court over accused. — A court-martial has no control 
 over the nature of the arrest or other status of restraint of a prisoner 
 except as regards his personal freedom in its presence. For the rela- 
 tion between a court-martial and the accused during trial as regards 
 arrest, see' Chapter V, Section I. 
 
 88. Accused not to be tried in irons. — The accused should not be 
 brought befote the court in irons, unless there are good reasons to 
 beheve that he will attempt to escape or to conduct himself in a 
 violent manner, but the fact that a prisoner has been tried in irons 
 can not in any case affect the validity of the proceedings. 
 
 89. Duties of the president. — A president of the court will not be 
 announced. The officer senior in rank present will act as such. The 
 president does not by virtue of being such exercise command of any 
 kind. He is in no sense the commanding officer of the court, and 
 can not by virtue of being president give an order to a member. As 
 the organ of the court he gives the directions necessary to the regular 
 and proper conduct of the proceedings; but a failure to comply with 
 a direction given by him, while it may constitute a neglect to the 
 prejudice of good order and military discipline, can not properly 
 be charged as a violation of the sixty-fourth article of war. (Digest, 
 p. 508, VI, G, 3.) Neither the court nor the president is authorized 
 to place the judge advocate in arrest. Only the proper commanding 
 
46 MANUAL FOR COURTS-MARTIAL. 
 
 officer can impose an arrest. It is the duty of the commanding officer 
 to secure the attendance of the accused before the court. _ (Digest, p. 
 509, VII, C, 2; id., VII, C, 3.) The president is the presiding officer 
 of the court, and as such is the organ of the court to maintain order 
 and conduct its business. In addition, he has the duties and privi- 
 leges of other members. He has an equal vote with other members 
 m deciding all questions, including challenges, findings, sentence, 
 acquittal, and adjournments. He speaks and acts for the court in 
 every instance where a rule of action has been prescribed by law, 
 regulations, or its own resolution, and has no authority to open or 
 close the court ir make a ruling upon the admissibility of evidence, 
 the competency of witnesses, or method of procedure without the 
 acquiescence of the court or by custom of the service. He administers 
 the oath to the judge advocate and authenticates by his signature 
 all acts, orders, and proceedings of the court requiring it. (See 
 Winthrop, p. 249.) It is his duty to take the proper steps to insure 
 prompt trial and disposition of all charges referred for trial and to 
 keep the court advised thereof. 
 
 [Note. — For duty of the president to explain to the accused the effect of a 
 plea of guilty, see Chap. IX, Sec. II, "Pleas to the general issue."] 
 
 90. Voting. — Members of a general or special court-martial, in 
 giving their votes, shall begin with the junior in rank. (A: W. 31.) 
 In all deliberations, including those on challenges, findings, sentence, 
 acquittal, and adjournments, the law secures the absolute equality 
 of the members, the president having no -greater rights in such mat- 
 ters than any other member. A tie vote on the findings is a vote 
 of "not guilty"; a tie vote on a proposed sentence or on a challenge 
 or any objection or motion is a vote in the negative. The sentence 
 is not adopted and the challenge, objection, or motion is not sustained. 
 When the offense charged includes a minor offense, voting shall first 
 be had upon the major offense. 
 
 All convictions and sentences (other than those involving death), 
 whether by general or special court-martial, may be determined by a 
 majority of the members present. (A. W. 43.) Refusal to vote on 
 any question arising during the proceedings constitutes a neglect to 
 the prejudice of good order and military discipline punishable under 
 A. W. 96. (For voting on findings and sentence, see Chap. XII, 
 Sec. II.) 
 
 91. Closed sessions. — Members take an oath not to disclose or dis- 
 cQver the vote or opinion of any particular member of the court- 
 martial. (See A. W. 19.) In order to avoid disclosing or discov- 
 ering such vote or opinion the court is closed while voting upon 
 any question. When the court is closed all persons (including 
 the judge advocate) withdraw. In important cases, where delay 
 would ensue due to the number of spectators present, the court itself 
 may withdraw to another room prepared for the purpose for delib- 
 erating in closed session. It is not necessary, however, for the court 
 
COURTS-MARTIAL— ORGANIZATION. 47 
 
 action would be unanimous and business can properly be transacted 
 without disclosing the vote or opinion of any member. Thus, on a 
 request by the judge advocate or the accused for a short recess, it is 
 proper for the president to announce "without objection, the request 
 will be granted," or words to that effect. Similarly, if the accused 
 objects to a member because he preferred the charges and is the 
 accuser and the member admits the fact, he may be excused without 
 going into closed session. Care will be taken in such cases that no 
 votes are taken in open session. If any member believes the matter 
 should be passed upon in closed session, it is proper for him to move 
 that the court be closed, wheretmon the president will announc.e that 
 the court will be cleared. 
 
 92. Sitting with closed doors. — A court-martial is authorized, in its 
 discretion, to sit with doors closed to the public. Except, however, 
 when temporarily closed for deliberation, courts-martial in this 
 country are almost invariably open to the public during a trial. But 
 in a particular case where the offenses charged were of a scandalous 
 nature, it was recommended that the court be directed to sit with 
 doors closed to the public. (Digest, p. 516, IX, C.) 
 
 93. Change in membership. — Although it is undesirable to change 
 the membership of a court during a trial it is within the discretion 
 of the appointing officer in a proper case, to relieve members or appoint 
 new members. The promotion of a member during the trial of 
 a case does not affect his competency as a member. He should 
 sit according to his changed rank. The rule is that no member who 
 has been absent during the taking of evidence shall thereafter take- 
 part in the trial; but the nonobservance of this rule shall not be con- 
 strued as invalidating the proceedings of courts-martial if no objec- 
 tion is made, and the court permits the member to sit. The rule, 
 however, should be complied with when practicable. Especially 
 should a member who has been absent during an important part of 
 the proceedings not be permitted to resume his seat. Where a mem- 
 ber who has been absent is permitted to resume his seat, or a new 
 member is added after the trial of the case has begun, all proceedings 
 and evidence during his absence should be read over to him in open 
 court before the case proceeds further and the record should show 
 this fact; but in proceedings in revision the presence of any member 
 who did not vote on the findings and sentence will invalidate the 
 proceedings in revision. 
 
 Section II. 
 
 THE JUDGE ADVOCATE. 
 
 94. Selection. — The prompt, speedy, and thorough trial of. a court- 
 martial case is principally dependent upon the judge advocate. He 
 will, accordingly, be carefully selected. Where it can be avoided, no 
 
48 MANUAL FOR COURTS-MARTIAL. 
 
 officer will be detailed as judge advocate of a general court-martial 
 until he has had experience as a member or as an assistant judge advo- 
 cate of a court. 
 
 95. General duties. — The judge advocate of a general or special 
 court-martial shall prosecute in the name of the United States, and 
 shall, under the direction of the court, prepare the record of its pro- 
 ceedings. (A. W. X7-) Before the court assembles the judge advo- 
 cate will obtain a suitable room for the court, see that it is in order, 
 procure the requisite stationery, summon necessary witnesses, make 
 a preliminary examination of the latter, and, as far as possible, sys- 
 tematize his plans for conducting the case. During the trial he exe- 
 cutes all orders of the court; reads the appointing order and any 
 modifying orders to the accused; swears the members of the coiu-t, 
 the reporter, interpreter, and all witnesses; arraigns the accused; 
 examines witnesses; keeps or superintends, under the direction of the 
 court, the keeping of a complete and accurate record of the proceed- 
 ings; and affixes his signature Iso each day's proceedings. Whenever 
 the court adjourns to meet at the call of the president, the judge 
 advocate will notify the members of the time designated by the presi- 
 dent for reassembling. In conjunction with the president of the 
 court, he authenticates the record by his signature and, at the end of 
 the trial, transmits the same to the reviewing authority. In case the 
 record can not be authenticated by the judge advocate by reason of 
 his death, disability, or absence, it shall be signed by the president 
 and. an assistant judge advocate, if any; and if there be no assistant 
 judge advocate, or in case of his death, disability, or absence, then 
 by the president and one other member of the court. (A. W. 33.) 
 
 96. Duty toward accused. — Should the accused, for any reason, not 
 be represented by counsel, the judge advocate shall, from time to 
 time throughout the proceedings, advise him of his legal rights. 
 (A.W. 17.) He should— 
 
 (a) Acquaint the prisoner with the accusations against him; 
 
 (b) Inform him of his right to have counsel ; 
 
 (c) Inform him of his right to testify in his own behalf; and 
 ^ (d) Inform him of his right to have a copy of the charges. 
 
 He may ask a prisoner how he intends to plead, but he should in 
 no case try to induce him to plead guilty, or leave him to infer that 
 if he does so his punishment will be lighter. (Winthrop, p. 293.) 
 When the accused determines to plead guilty the judge advocate 
 should advise him of his right to introduce evidence in explanation 
 of his offense, and should assist him in securing it. During the trial 
 he will see that the accused has full opportunity to interpose such 
 pleas and make such defense as may best bring out the facts, the 
 merits, or the extenuating circumstances of his case. In so far as 
 such action may be taken without prejudice to the rights of the accused, 
 
COURTS-MARTIAL— ORGANIZATION. 49 
 
 any advice given him by the judge advocate should be given or repeated 
 in open court and noted upon the record. 
 
 97. Examination of charges.— The judge advocate will note and 
 report to the convening authority any irregularity in the order con- 
 vening the court and see that the charges are technically and cor- 
 rectly drawn. He may ordinarily correct obvious mistakes of form, 
 or slight errors in names, dates, amounts, etc., but he will not, without 
 the authority of the convening officer, make substantial amendments 
 in the allegations, or — least of all — reject or withdraw a charge or 
 specification or substitute a new and distinct charge for one trans- 
 mitted to him for trial by the proper superior. (Digest, p. 496, 
 IV, B , 1.) It is the duty of the president as well as the judge 
 advocate of every court-martial to examine carefully the indorse- 
 ment on the charges when referred for trial in order that an accused 
 may not be brought to trial before the wrong court. 
 
 98. Whole truth to be presented. — Throughout the trial the judge 
 advocate should do his utmost to present the whole truth of the mat- 
 ter in question. He should oppose every attempt to suppress facts 
 or to distort them, to the end that the evidence may so exhibit the 
 case that the court may render impartial justice. 
 
 99. Legal adviser of the court. — ^While the court is in open session the 
 judge advocate should respectfully call the attention of the court 
 to any apparent illegalities in its action, and to any apparent irregu- 
 larities in its proceedings. He should act as legal adviser of the 
 court so far as to give his opinion upon any point of law arising 
 during the trial, when it is asked for by the court, but not otherwise. 
 (See, however, par. 197, p. 96.) When his legal advice or assistance 
 is required it will be obtained in open court. In case the accused 
 desires to plead guilty the judge advocate will, whenever necessary, 
 invite the attention of the president of the court to the fact that the 
 effect of such plea must be explained to him. (See Chap. IX, Sec. II, 
 "Pleas to the general issue.") 
 
 100. Freedom in conducting case. — The judge advocate should be 
 left free by the court to introduce his evidence in such order as he sees 
 fit, and in general to bring cases to trial in such order as he deems 
 expedient. ( Winthrop, pp. 281-283.) But while it is not the 
 province of the court to direct or control the judge advocate in his 
 prosecution of the case, it is responsible for the thorough investiga- 
 tion of the case, and need not content itself 'with the evidence brought 
 out by the prosecution and defense. It is proper for the co\irt as 
 a body or for any member to ask questions of a witness if it is believed 
 the examination alread^j submitted has failed fully to develop 
 the case. Usually such questions are not asked until after the 
 prosecution and defense have fully completed their examination of 
 
 91487°— 17— 5 
 
50 MANUAL FOR COURTS-MARTIAL. 
 
 the witness. The court may direct that the judge advocate recall a 
 witness, secure the attendance of a particular witness, or that he 
 introduce evidence on a particular point. It is the duty of the court 
 to take such action if it believes that thereby the facts in the case 
 will be more clearly presented. 
 
 101. Closed sessions. — ^Whenever a general or special court-martial 
 shall sit in closed session, the judge advocate and the assistant judge 
 advocate, if any, shall withdraw; and when their legal advice or their 
 assistance in referring to the recorded evidence is required, it shall 
 be obtained in open court and in the presence of the accused and of 
 his counsel if there be any. (A. W. 30.) If through mistake or 
 inadvertence the judge advocdite should be present during the whole 
 or a part of a closed session of the co'ur-t, such irregularity is, subject 
 to the provisions of A. W 37, ground for a disapproval of the pro- 
 ceedings by the reviewing authority, but it does not deprive the court 
 of jurisdiction and courts of the United States do not interfere in 
 such a case to release a prisoner by writ of habeas corpus. (Ex 
 parte Tucker, 212 Fed. Rep., 569; see also A. W.,37.) 
 
 102. Accuser or prosecutor. — The judge advocate is not challenge- 
 able ; but in case of personal interest in the trial or of personal hostility 
 toward the accused he should apply to the convening authority to be 
 relieved. 
 
 103. Expediting trials. — Charges to be tried by a general or special 
 court-martial are referred to the judge advocate of the covirt. It is 
 his duty to bring them to trial promptly. In most cases tried by 
 court-martial the facts are few and simple, and the witnesses are 
 officers or soldiers stationed at the post where the trial is had. 
 Usually the members of the court, judge advocate, and accused and his 
 counsel are stationed at the same post. In such cases the prelimi- 
 nary investigation, reference for trial, and the trial should take place 
 promptly. If the other official duties of the judge advocate and coun- 
 sel do not leave time to prepare cases properly and to bring them to 
 trial promptly the president will advise the commanding officer with 
 a view to their being relieved from other duties. 
 
 104. Weekly reports. — On Saturday of each week each judge advo- 
 cate of a general court-martial will report, through the president of 
 the court and the 'commanding officer, to the appointing authority, a 
 list of charges on hand, showing the date of receipt of each; and if 
 any case has been in the hands of the judge advocate for one week or 
 more and the record of trial has not been forwarded to the convening 
 authority, the report will include a statement of the reasons for the 
 delay. No record need be made of this report by the president of the 
 coiirt or the commanding officer. 
 
 105. Detail of orderly. — The commanding officer will detail, when 
 necessary, suitable soldiers as clerks or orderlies to assist the judge 
 
COURTS-MARTIAL— ORGANIZATION. 51 
 
 advocate of a general or special court-martial or military commission, 
 or the recorder of a court of inquiry. 
 
 Section III, 
 ASSISTANT JUDGE ADVOCATE. 
 
 106. Appointment. — The authority appointing a general court- 
 martial shall appoint one or more assistant judge advocates when 
 necessary. (A. W. 11.) An assistant judge advocate of a general 
 court-martial shall be competent to perform any duty devolved by 
 law, regulation, or the custom of the service upon the judge advocate 
 of the court. (A. W. 116.) 
 
 107. Duties. — An assistant judge advocate will perform such duties 
 in connection with the trial as the judge advocate may designate. 
 Ordinarily he will be expected to relieve the judge advocate of minor 
 details, such as arranging for a place of meeting of the court, sta- 
 tionery, and messenger service, stenographers and interpreters, 
 subpoenaing witnesses, and notifying the court of the place and 
 hour of meeting. During trial he will be expected to see that 
 witnesses are on hand when needed, that all, details of procedure are 
 observed and the record accurately kept. He may also be intrusted 
 by the judge advocate with the investigation before trial and proof 
 during trial of any special phase of the charges, "or he may, where the 
 judge advocate is otherwise engaged, take charge of the complete 
 trial of a case. (See also A. W. 33.) While the judge advocate and 
 assistant judge advocate will ordinarily be present during trial, if 
 their duties require the presence of either of them elsewhere, he may 
 be excused by the court; but the fact of his withdrawal or absence, 
 the reason therefor, and. his return to the court will be noted in the 
 record. (See form for record of a general court-martial, Appen- 
 dix 6.) 
 
 Wherever in this Manual the judge advocate of a general court- 
 martial is mentioned, the term will be understood to include assistant 
 judge advocates, if any, unless the context shows clearly that a dif- 
 ferent sense is intended. 
 
 Section IV. 
 
 COUNSEL. 
 
 108. Appointment. — The accused shall have the right to be repre- 
 sented before a general or special court-martial by counsel of his own 
 selection, for his defense, if such counsel be reasonably available. (A. 
 W. 17.) Civilian counsel will not be provided at the expense of the 
 Government. (Digest, p. 506, V, G, 5.) Should the accused request 
 the appointment as his counsel of an officer stationed at the station 
 
52 MANUAL FOR COURTS-MARTIAL. 
 
 where the court sits, and such officer be not a member of the court, 
 the commanding officer will appoint such officer as counsel if he is 
 reasonably available. Should the commanding officer decide that 
 the officer desired by the accused is not reasonably available, the 
 accused may appeal to the officer appointing the court, whose decision 
 shall be final. If the counsel desired by the accused is not under the 
 control of the commanding officer where the trial is held, application 
 for counsel will be submitted by the accused in writing to the 
 appointing authority, whose decision as to whether the officer desired 
 is "reasonably available" is final. Officers of the Judge Advocate 
 General's Department are not available for appointment as counsel 
 for the defense in trials by courts-martial. 
 
 109. Duty of officer as counsel. — ^An officer acting as counsel before a 
 general or special court-martial should perform such duties as 
 usually devolve upon the counsel for a defendant before civil courts 
 in criminal cases. He should guard the interests of the accused by 
 all honorable and legitimate means known to the law, but should not 
 obstruct the proceedings with frivolous and manifestly useless objec- 
 tions or discussions. 
 
 1 10. Right to interview the accused. — An accused, even if in close 
 arrest, will be allowed to' have such interviews with his counsel, mili- 
 tary or civil, as may be required in order to prepare his defense. 
 Counsel will also be. permitted to have interviews with any other 
 person who may be a witness for the accused, or whose knowledge 
 of facts may be usefid to the accused in preparing for trial. 
 
 111. Witnesses, how questioned during trial. — If the judge advocate 
 personally prepares the record the counsel will be required to reduce 
 his questions and arguments to writing; but if the covirt has a 
 stenographic reporter, the counsel will be allowed to question wit- 
 nesses and address the court orally. 
 
 Section V. 
 REPORTER. 
 
 112. Emplojmient. — Under such regulations as the Secretary of War 
 may from time to time prescribe, the president of a court-martial 
 or military commission, dr a court of inquiry, shall have power to 
 appoint a reporter, who shall record the proceedings of and testi- 
 mony taken before such court or commission and may set down the 
 same, in the first instance, in shorthand. (A. W. 115.) Reporters 
 will be employed only when authorized by the appointing authority. 
 They will not be authorized for special courts-martial, except when 
 the appointing authority directs that the testimony be reduced to 
 writing. 
 
 [Note. — For form of oath for reporter see par. 135.] 
 
COURTS-MARTIAL— ORGANIZATION. 53. 
 
 113. Compensation — Decisions. — The reporter shall be paid at the 
 following rates of compensation by the Quartermaster Corps on 
 vouchers certified to be correct by the judge advocate or recorder: 
 
 (a) For each case not to exceed $1 an hour for time actually spent 
 in court during the trial or hearing, except when the court or com- 
 mission sits less than three hours during the first day, when the 
 allowance for such day shall be |3. Time will be reckoned to the 
 nearest half of an hour. 
 
 (b) Fifteen cents for each 100 words for transcribing notes and 
 making that portion of the original record which is typewritten; 
 but no allowance shall be made for the first carbon copy of that 
 portion of the record which is typewritten or for original papers which 
 are appended as exhibits. 
 
 (c) Ten cents for each 100 words for copying papers material 
 to the inquiry, and 2 cents for each 100 words for each carbon copy 
 of the same, when ordered by the court or commission for its use. 
 
 (d) Two cents for each 100 words for the second and each addi- 
 tional carbon copy of the record when authorized by the convening 
 authority. 
 
 (e) Except for such part of the journey as may be covered by 
 Government transportation, mileage at the rate authorized for a 
 civilian witness not in Government employ and $3 a day for expen- 
 ses when the judge advocate or recorder keeps him, at his own 
 expense, away from his usual place of employment for twenty-four 
 hours or more, on public business referred to the court or commission, 
 shall be allowed the reporter for himself, and, when ordered by the 
 court or commission, for each necessary assistant. 
 
 (J) When a stenographic reporter is authorized for a special 
 court-martial only one copy of the proceedings will be required, and 
 for transcribing notes and making that part of the record of a trial 
 by special court-martial which is typewritten, the reporter, other 
 than an enlisted man, shall receive 13 cents for each 100 words. 
 
 [Note. — The following decisions regarding compensation of reporters will be 
 observed in preparing vouchers: 
 
 (a) The payment to a reporter of $3 for each case completed by him is not 
 authorized when more than one case is disposed of in one day, each case requir- 
 ing less than three hours in which to' be completed, but simply guarantees 
 the reporter at least $3 for each day that the court or commission sits when 
 a new case is taken up for that day. (Cir. 81, War Dept., 1908.) 
 
 (6) In determining the period for which a reporter is entitled to the allow- 
 ance of $3 a day for expenses when kept away from his usual place of employ- 
 ment time should be counted from the date on which he is required to leave 
 his usual place of business by the terms of his employment to the date of 
 his return thereto, provided there be no unnecessary delay in the travel to 
 and from the place where the court meets. (Par. 1244, Manual Q. M. Corps, 
 1916.) 
 
 (c) The fact. that a reporter returns each night to his home does not pre- 
 clude the view that he was kept away from his place of business for 24 hours. 
 He is not, however, entitled to mileage for such journeys unless the sessions of 
 the court are held on nonconsecutive days. (Op. J. A. G.,' Sept. 7, 1910.) 
 
54 MANUAL FOR COURTS-MARTIAL. 
 
 (d) A reporter serving two separate courts-martial on the same day is en- 
 titled to have his allowances (except mileage) computed separately for each 
 court. (Op. J. A. G., Oct. 13, 1910.) 
 
 (e) A-reporter duly employed, but who, after arrival at court, performs no 
 service, owing to adjournment, is entitled to mileage, $3 for constructive service, 
 and also to the additional 13 if kept away from place of business for 24 hours. (Op. 
 J.A. G., Feb. 18, 1911; June 4, 1914.) 
 
 (/) The abbreviations "Q.," standing for the word question, and "A.," 
 standing for the word answer, and all dates as "25th" and "1914" will each 
 be counted as one word. Punctuation marks will not be counted as a word. 
 It is not necessary for the judge advocate to count the actual number of 
 words on every page to justify him in certifying the account of the reporter. 
 He may ascertain the total number of words by counting the words on a 
 sufficient number of pages to enable him to ascertain a fair average of the 
 number of words on a page and then ascertain the total by multiplying this 
 average by the number of pages. (Op. J. A. G., Oct. 22, 1909; Feb. 8, 1915.)] 
 
 1.14. Disposition of vouchers. — The original voucher for payment of 
 the reporter will be properly completed and certified by the judge 
 advocate and will be sent for payment to the nearest disbursing 
 quartermaster. A carbon copy of the voucher will be forwarded 
 with the record for the information of the appointing authority. 
 
 [Note. — For form of voucher for payment of reporter, see Appendix 18.] 
 
 115. Detail of soldier. — ^A soldier may be detailed to serve as a steno- 
 graphic reporter for general courts-martial, courts of inquiry, and 
 military commissiqns, and while so serving shall receive extra, pay at 
 the rate of not exceeding five cents for each one hundred words taken 
 in shorthand and transcribed, such extra pay to be met from the 
 annual appropriation for expenses of courts-martial. (Act of Aug. 
 25, 1912, 37 Stat., 575.) Such detail will be made only when a reporter 
 is authorized by the appointing authority. 
 
 116. Time limit for completing record. — The judge advocate or 
 recorder shall require the reporter to furnish the typewritten record 
 of the proceedings of each session of the court or commission (together 
 with one carbon copy of the same) not later than twenty-four hours 
 after the adjournment of that session. The complete record will be 
 finished, indexed, bound, and ready for authentication not later than 
 forty-eight hours after the completion of its action by the court or 
 commission on the merits of the case or hearing. 
 
 117. Carbon copies of the record. — Whenever a record of a trial of 
 general court-martial is to be typewritten by a reporter, the judge 
 advocate will inform the accused of his right to demand a copy of 
 the record, and will require of him a- statement as to whether or not 
 he desires a copy. If the answer be in the affirmative, the judge 
 advocate will cause the reporter to prepare a carbon copy; this copy 
 will be turned over to the accused. If the answer be in the negative, 
 no carbon copy will be prepared. In, either case, notation of the 
 action taken will be made on the index sheet of the record. (See form 
 for record of general court-martial. Appendix 6.) In case of joint 
 trials, the judge advocate will, in case a stenographer is employed, 
 
COURTS-MARTIAL— ORGANIZATION. 55 
 
 have one copy of the record made for each of the accused requesting 
 the same. When records of trial by general court-martial are type- 
 written, the copyable ribbon will be used. (C M. C. M., No. i.) 
 
 118. Ejctra compensation for clerical duties. — No person in the mili- 
 tary or civil service of the Government can lawfully receive extra 
 compensation for clerical duties performed for a military court 
 except as provided in paragraph 115, supra. (A. R. 987.) 
 
 Section VI. 
 INTERPRETER. 
 
 119. Emplo3mient and pay. — Under such regulations as the Secretary 
 of War may from time to time prescribe, the president of a court- 
 martial or military commission, or court of inquiry, or a summary 
 court, may appoint an interpreter, who shall interpret for the court 
 or commission. (A. W 115.) Interpreters may be employed when- 
 ever necessary without application to the appointing authority. 
 They will be allowed the pay and allowances of civilian witnesses, 
 which will be paid by the Quartermaster Corps on vouchers certified 
 by the judge advocate or recorder. 
 
 [Note. — For oath of interpreter see par. 136.] 
 
CHAPTER VIII. 
 COURTS-MARTIAL— ORGANIZATION. 
 
 [Continued.] 
 
 Page. 
 
 Section I : Challenges 57 
 
 120 . Occasionfor 57 
 
 121 . Grounds for challenge 68 
 
 (a) Principal challenges, (1) to (8) 58 
 
 (b) Challenges for favor 68 
 
 122. Challenge of new member 58 
 
 123. Challenge by judge advocate 59 
 
 124. Member can not challenge 59 
 
 126. Procedure upon challenges 59 
 
 126. Member disqualified but not challenged 59 
 
 127. Waiver of objection'. 59 
 
 128. Liberality required 59 
 
 129. Member as accuser or witness for the prosecution 60 
 
 130. Member signing charges — when accuser 60 
 
 131. Member of court as witness ^ 60 
 
 Section II: Oaths 61 
 
 132. Oath of members 61 
 
 (a) Oath, (b) Affirmation, (c) Court sworn for each case, (d) Addi- 
 tional ceremony, (e) Decorum in administering oath 61 
 
 133. Oath of judge advocate 62 
 
 134. Oath of witness 62 
 
 (a) Oath, (6) Swearing judge adovcate 62 
 
 135. Oath of reporter 62 
 
 136. Oath of interpreter 62 
 
 137. Oath to test competency 62 
 
 138. Oaths for administrative purposes 63 
 
 (a) R. S. 183, (6) A. W. 114 63 
 
 Section III : Continuances 63 
 
 139. Authorityfor 63 
 
 140. Reason for application to be stated 63 
 
 141. Number of continuances 64 
 
 Section IV: Completion of organization 64 
 
 142. When acomplished 64 
 
 Section I 
 
 CHALLENGES. 
 
 120. Occasion for. — The composition of the court-martial having been 
 made known to the accused by the reading of the appointing order, 
 together with any orders which have operated to modify the compo- 
 
 57 
 
58 MANUAL FOR COURTS-MARTIAL. 
 
 sition of the court as originally constituted, he ie asked by the judge 
 advocate whether he objects to being tried by any member present 
 named in the order and modifying orders. If his reply be in the 
 negative, the court and judge advocate are sworn; if, on the other 
 hand, the accused has objection to a member, he exercises his right in 
 this respect by challenging, in turn, each member to whom he objects. 
 Members of a general or special court-martial may be challenged by the 
 accused, but only for cause stated to the court. The court shall deter- 
 mine the relevancy and validity thereof, and shall not receive a chal- 
 lenge to more than one member at a time. (A. W. 18.) Neither a 
 stimmary court officer nor the judge advocate of a general or special 
 court-martial is subject to challenge. (Digest, p. 502, IV, N; Davis, 
 p. 85, n, 3.) 
 
 [Note. — The various classes of challenges recognized at common law have 
 been practically reduced in courts-martial practice to two, viz, (1) principal 
 challenges, or those where the member must be excused upon proof of the 
 ground for challenges as alleged; (2) for favor ^ where the court must decide 
 whether the facts proved constitute cause to excuse the member.] 
 
 121. Grounds for challenge — (a) Principal challenges. — In the fol- 
 lowing cases a member will be excused when challenged upon proof of 
 the fact as alleged: 
 
 (1) That he sat as a member of a court of inquiry which investi- 
 gated the charges. 
 
 (2) That he has personally investigated the charges and expressed 
 an opinion thereon, or that he has formed a positive and definite 
 opinion as to the guilt or innocence of the accused. 
 
 (3) That he is the accuser. 
 
 (4) That he will be a witness for the prosecution. 
 
 (5) That (upon a rehearing of the case) he sat as a member on the 
 former trial. 
 
 (6) That, in the case of the trial of an officer, the member will be 
 promoted by the dismissal of the accused. 
 
 (7) That he is related by blood or marriage to the accused. 
 
 (8) That he has a declared enmity against the accused. 
 
 (b) Challenges for favor. — Where prejudice, hostility, bias, or inti- 
 mate personal friendship are alleged it is for the court, after hearing 
 the grounds for challenging stated and the reply, if any, of the chal- 
 lenged member, as well as any other evidence presented, to determine 
 whether the grounds stated and proved or admitted are sufficient in 
 fact to disqualify a challenged member. 
 
 122. Challenge of new member. — Where new members join or are 
 added to the court after its organization the order detailing such new 
 members should be read to the accused and he should be given full 
 opportunity to challenge. The record will show affirmatively that the 
 right has been accorded the accused to challenge every member of the 
 court. 
 
COURTS-MARTIAL— ORGANIZATION. 59 
 
 123. Challenge by judge advocate. — There is no statutory authority 
 for a challenge by the judge advocate, but under the custom of the 
 service after the accused has fully exercised his right of challenge 
 the judge advocate may also challenge for cause in the same manner 
 as the accused. (Digest, p. 502, IV, O.) 
 
 124. Member can not challenge. — There is no authority of law or cus- 
 tom of the service for a member of a court-martial to challenge 
 another member, but where one member has knowledge of the fact 
 that another is the accuser in the case or will be a witness for the 
 prosecution he will bring the fact to the attention of the court in order 
 that proper action may be taken. (See par. 129, below.) 
 
 125. Procedure upon challenges. — ^A positive declaration by a mem- 
 ber challenged 'on the ground of prejudice or interest that he is not 
 prejudiced against the accused nor interested in the case is ordi- 
 narily satisfactory to the accused, and, in the absence of material 
 evidence in support of the objection, will justify the court in over- 
 ruling it. If, however, the statement is unsatisfactory, or the mem- 
 ber makes no response, the accused may offer testimony in support 
 of his challenge or may subject the challenged member to an exami-^ 
 nation under oath as to his competency as a member. In such a. case 
 the judge advocate administers the oath to the challenged member. 
 The accused and other witnesses may be cross-examined, witnesses 
 may be introduced in rebuttal by the judge advocate and arguments 
 may be made. The whole proceedings, will, in the case of a general 
 court-martial, appear in the, record. During the deliberation of the 
 court the challenged member will withdraw If but four mem- 
 bers remain they may pass upon the challenge. (See Chap. II, Sec. II.) 
 
 [Note.' — For form of oath to be administered to a challenged member see 
 par. 137.] 
 
 126. Member disqualified but not challenged. — In the absence of a 
 challenge the court of itself can not excuse a member from sitting on 
 the trial of a case, but a member not challenged, who thinks himself 
 disqualified for reasons other than those indicated in paragraph 129, 
 below, may announce in open court his supposed disqjialification, in 
 order that he may be challenged; or he may apply to the appoint 
 ing authority to be relieved. 
 
 127. Waiver of objection. — The rule is that challenges should be made 
 before the arraignment, and if an objection to the competency of a 
 member was known at that time and not made, it will be considered 
 as waived; but if the cause of a member's incompetency was not 
 known at the time of arraignment or did not arise until later, the 
 court will entertain a challenge based on such cause, at any stage 
 of the proceedings. 
 
 128. Liberality required. — Courts should be liberal in passing upon 
 challenges, but they will not entertain an objection that is- not spe- 
 
60 MANUAL FOR COURTS-MARTIAL. 
 
 cific, and 'they should be reluctant to sustain one upon the mere 
 assertion of the accused, except where it is admitted by the chal- 
 lenged member. 
 
 129. Member as accuser or witness for the prosecution. — No ofi&cer 
 shall be eligible to sit as a member of a general or special court-martial 
 when he is the accuser or a witness for the prosecution. (A. W. 
 8, 9.) After the accused is brought before the court, preferably 
 before the court is sworn, any member thereof who is or believes 
 himself to be the accuser in the case will formally announce that 
 fact to the court, whereupon he will be excused. When the accused, 
 his counsel, the judge advocate, or any member- of the court, at any 
 time before the finding, shall have reason to believe that any member 
 thereof is the accuser in the case, or may be called as a witness for 
 the prosecution, such belief shall be communicated to the court, and, 
 if the court, after hearing the facts, find that such member is the 
 accuser or is to be called as a witness for the prosecution, he shall 
 be excused. If at any stage of the proceedings prior to the findings 
 any member of the court be called as a witness for the prosecution, 
 
 , he shall, before qualifying as a witness, be excused from further duty 
 as a member. 
 
 130. Member signing charges — When accuser. — ^Whether or not an 
 officer is the accuser in a particular case is a question of fact. If, 
 notwithstanding his ineligibility, he does sit as a member of a gen- 
 eral or special court-martial, the proceedings are necessarily invalid. 
 (A. W. 8, 9; Op. J. A. G., Oct. 11, 1913; id., Nov. 13, 1913, Bull. 
 38, War Dept., 1913, p. 6.) An officer may be ordered by superior 
 authority to prefer and sign a charge. The action of the officer 
 preferring and signing the charge may be purely ministerial and 
 represent no conviction whatever on his part that an offense has been 
 committed, or that if an offense has been committed it was committed 
 by the person charged. In such a case the accuser is not, in fact, the 
 officer signing the charge, but the officer who directs the preparation 
 and signing of the charge. The former is, therefore, not within the 
 prohibition of the statute. The officer who has signed the charge in 
 a particular case is, however, prima facie, the accuser in that case, 
 and therefore ineligible to sit as a member of the trial court. (Op. 
 J. A. G., Feb. 20, 1914, Bull. 8, War Dept., 1914, p. 6.) If in such a case 
 the court should decide that he is eligible, all the evidence upon which 
 the court reached its decision will, in the case of a general court- 
 martial, be made of record, and in the case of a special court-martial 
 the record will show that evidence touching the eligibility of the 
 officer was heard by the court and the finding arrived at thereon. 
 
 131. Member of court as witness. — (a) For the prosecution. — No 
 officer shall be eligible to sit as a member of a general or a special 
 court-martial who is a witness for the prosecution. (A. W. 8, 9; 
 
COURTS-MARTIAL— ORGANIZATION. 61 
 
 Bull. 38, War Dept., 1913, p. 6.) In any case where the proceedings 
 of a court are invalidated by reason of the failure to excuse a mem- 
 ber who is the accuser or a witness for the prosecution a new trial 
 may be ordered. (Bull. 8, War Dept., 1914, p. 8.) 
 
 (b) For the defense. — The fact that a member is a witness for the 
 defense will not necessarily disqualify him to sit as a member of the 
 court, and the fact that such a witness sits throughout the trial as a 
 member of the court will not in any way affect the vaHdity of its 
 proceedings. 
 
 (c) When called by court. — ^Whether a member called as a witness 
 by the court is to be considered as a witness for the prosecution depends 
 on the character of his testimony, which should be carefully con- 
 sidered before a conclusion is reached that he is not. In any case 
 of doubt he should be excused from further participation in the trial 
 as a member. (Op. J. A. G., Nov. 20, 1913.) 
 
 {d) When accused pleads guilty. — ^When a member is a witness to 
 any charge or specification to which the accused pleads guilty and 
 he is not called as a witness for the prosecution to any other charge 
 or specification, he is not disqualified from sitting as a member. (Op. 
 J. A. G., Nov. 19, 1914, Bull. 52, War Dept., 1914, p. 3.) 
 
 Section II. 
 
 OATHS. 
 
 132. Oath of members. — (a) The challenges having been disposed of, 
 the judge advocate of a general or special court-martial shall 
 administer to the members of the court, before they proceed upon any 
 trial, the following oath or affirmation (A. W. 19) : 
 
 You, A. B., do swear (or afiirm) that you will well and truly try and 
 determine, according to the evidence, the matter now before you, between 
 the United States of America and the person to be tried, and that you will 
 duly administer justice, without partiality, favor, or affection, according to 
 the provisions of the rules and articles for the government of the Armies 
 of the United States, and if any doubt should arise, not explained by said 
 articles, then according to your consicence, the best of your understanding, 
 and the custom of war in like cases; and you do further swear (or afiirm) 
 that you will not divulge the findings or sentence of the court until they 
 shall be published by the proper authority, except to the judge advocate and 
 assistant judge advocate; neither will you disclose or discover the vote or 
 opinion of any particular member of the court-martial, unless required to 
 give evidence thereof as a witness by a court of justice in due course of 
 law. So help you God. 
 
 (6) In case of affirmation the closing sentence of adjuration will 
 be omitted. 
 
 (c) When more than one case is tried by the same cotirt, the oath 
 must be administered anew for each case. 
 
62 MANUAL FOR COURTS-MARTIAL. 
 
 (d) The oaths or affirmations prescribed in A. W. 19 for the 
 members, the judge advocate, a witness, and others will always be 
 administered, but in addition there may be such additional ceremony 
 or acts as will make the oath or affirmation binding on the conscience 
 of the person taking it. 
 
 (e) For decorum to be observed during the administration of 
 oaths, see Chapter VII, Section I. 
 
 133. Oath of judge advocate. — When the oath or affirmation has been 
 administered to the members of a general or special, court-martial, 
 the president of the qourt shall administer to the judge advocate and 
 to each assistant judge advocate, if any, an oath or affirmation in 
 the following form (A. W. 19) : 
 
 You, A. B., do swear (or affirm) that you will not divulge the findings or 
 sentence of the court to any but the proper authority until they shall be duly dis- 
 closed by the same. So help you God. 
 
 134. Oath of witness. — (a) All persons who give evidence before a 
 court-martial shall be examined on oath or affirmation in the follow- 
 ing form (A. W. 19), administered by the judge advocate: 
 
 You swear (or affirm) that the evidence you shall give in the case now in 
 hearing shall be the truth, the whole truth, and nothing but the truth. So help 
 you God. 
 
 (b) If either the judge advocate or assistant judge advocate is to 
 testify, the oath or affirmation will be administered by the other or 
 by the president. 
 
 135. Oath of reporter. — (a) Every reporter of the proceedings of a 
 court-martial shall, before entering upon his duties, make oath or 
 affirmation in the following form (A. W. 19), administered by the 
 judge advocate: 
 
 You swear (or affirm) that you will faithfully perform the duties of reporter 
 to this court. So help you God. 
 
 (b) For authority for hiring reporters, and compensation, see 
 Chapter VII, Section V. 
 
 136. Oath of interpreter. — Every interpreter in the trial of any case 
 before a court-martial shall, before entering upon his duties, make 
 oath or affirmation in the following form (A. W. 19), administered 
 by the judge advocate : 
 
 You swear (or affirm) that you will truly interpret in the case now in hearing. 
 So help you God. 
 
 137. Oath to test competency. — When a member of a general or special 
 court-martial is challenged and it is desired to question him regard- 
 ing his eligibility to sit as a member in the trial of a case, the judge 
 advocate will administer to him the following oath : 
 
 You swear that you will true answers make to questions touching your com- 
 petency as a member of the court in this case. So help you God. 
 
COURTS-MARTIAL— ORGANIZATION. 63 
 
 138. Oaths for administrative purposes. — (a) Any officer or clerk of 
 any of the departments lawfully detailed to investigate frauds on, 
 or attempts to defraud, the Government, or any irregularity or mis- 
 conduct of any officer '-or agent of the United States, and any officer 
 of the Army, Navy, Marine Corps, or Revenue-Cutter Service detailed 
 to conduct an investigation, and the recorder, and if there be 
 none the presiding officer, of any military, naval, or Revenue-Cutter 
 Service board appointed for such purpose, shall have authority to 
 administer an oath to any witness attending to testify or depose in 
 the course of such investigation. (R. S. 183, as amended by the 
 act of Feb. 13, 1911, 36 Stat., 898.) 
 
 (b) Any judge advocate or acting judge advocate, the president 
 of a general or special court-martial, any summary court-martial, the 
 judge advocate or any assistant judge advocate of a general or special 
 court martial, the president or the recorder of a court of inquiry 
 or of a nailitary board, any officer designated to take a deposition, any 
 officer detailed to conduct an investigation, and the adjutant of any 
 command shall have power to administer oaths for the purposes of 
 the administration of military justice and for other purposes of mili- 
 tary administration; and in foreign places where the Army may be 
 serving shall have the general powers of a notary public or of a consul 
 of the United States in the administration of oaths, the execu- 
 tion and acknowledgment of legal instruments, the attestation of 
 documents, and all other forms of notarial acts to be executed by 
 persons subject to military law. (A. W. 114.) 
 
 Section III. 
 CONTINUANCES. 
 
 139. Authority for. — A court-martial may, for reasonable cause, grant 
 a continuance to either party for such time and as often as may 
 appear to be just. (A. W. 20.) If before the first meeting of the 
 court a continuance is deemed necessary by either party, application 
 therefor should be made to the appointing authority, but if made 
 after assembling the application will be made to the court. When 
 application is made to the court for an extended delay which appears 
 to be well founded, it may be referred to the appointing authority 
 in order that he may determine whether the court should grant it 
 or whether he should dissolve the court. 
 
 140. Reason for application to be stated. — The party desiring a con- 
 tinuance must state the reasons upon which his application is based. 
 When it is desired because of the absence of a witness he should dis- 
 tinctly show that the witness is .material, that he has used due dili- 
 gence to procure the testimony or attendance of the witness, and that 
 he has reasonable ground to believe that he will be able to procure 
 
64 MANUAL FOR COURTS-MARTIAL. 
 
 such testimony or attendance within a reasonable time, which time 
 shall be stated. 
 
 141. Number of continuances. — The number of continuances which 
 may be granted is not limited, but where ext^ded delays will ensue 
 the court will be justified in exacting proof of due diligence on the 
 part of the party requesting the same, and may even require the rea- 
 sons to be stated under oath if it has reason to suspect that the intention 
 is merely to delay the proceedings.' 
 
 Section IV. 
 COMPLETION OF ORGANIZATION. 
 
 142. When accomplished. — The court having met, the accused and 
 his counsel having been introduced, the reporter sworn, the convening 
 order read, the right of challenge accorded, and the coiu-t and judge 
 advocate sworn, the organization of the court is complete for the 
 trial of the case. 
 
CHAPTER XIII. 
 COURTS-MARTIAL— PUNISHMENTS 
 
 Page. 
 Section I : Disciplinary power of commanding officer : 
 
 333. Authority for 151 
 
 334. Record of punishment 152 
 
 335. Appeals 153 
 
 336. Not limited to soldiers 153 
 
 Section II: Confinement in a penitentiary: 
 
 337. When authorized 153 
 
 338. Classes of sentences to be executed in a penitentiary 154 
 
 339. Authority for penitentiary sentence to be cited 155 
 
 Section III: War Department policy regarding punishments: 
 
 340. Desertion 156 
 
 341. Segregation of prisoners 158 
 
 342. Adaptation of punishments 159 
 
 343. Relative severity of punishments 159 
 
 Section IV: Prohibited punishments : 
 
 344. By statute 160 
 
 345. By custom and regulations 160 
 
 Section V : Death — Cowardice — Fraud : 
 
 346. Death penalty 160 
 
 347. Cowardice — Fraud — ^Accessory penalty 161 
 
 Section VI : Maximum limits : 
 
 348. By whom prescribed 161 
 
 Section I. 
 DISCIPLINARY POWER OF COMMANDING OFFICER. 
 
 333. Authority for. — While courts-martial are the judicial machinery 
 provided by law for the trial of military offenses, the law also recog- 
 nizes that the legal power of command, when wisely and justly exercised 
 to ■ that end, is a powerful agency for the maintenance of dis- 
 cipline. Courts-martial and the disciplinary powers of commanding 
 officers have their respective fields in which they most effectually 
 function. The tendency, however, is to resort unnecessarily to 
 courts-martial. To invoke court-martial jurisdiction rather than to 
 exercise this power of command in matters to which it is peculiarly 
 applicable and effective, is to choose the wrong instnmient, disturb 
 unnecessarily military functions, injure rather than maintain dis- 
 cipline, and fail to exercisfe an authority the use of which develops 
 and increases the capacity for command. 
 
 Legal sanction is now given to the exercise of such disciplinary 
 power by the following article of war : 
 
 "Art. 104. Under such regulations as the President may prescribe, 
 and which he may from time to time revoke, alter, or add to, the 
 commanding officer of any detachment, company, or higher command 
 
 151 
 
152 MANUAL FOR COURTS-MARTIAL. 
 
 may, for minor, offenses not denied by the accused, impose dis- 
 ciplinary punishments upon persons of his command without the 
 intervention of a court-martial, unless the accused demands trial by 
 court-martial. 
 
 The disciplinary punishments authorized by this article may in- 
 clude admonition, reprimand, withholding of privileges, extra 
 fatigue, and restriction to certain specified limits, but shall not 
 include forfeiture of pay or confinement under guard. A person 
 punished under authority of this article who deems his punishment 
 unjust or disproportionate to the offense may, through the proper 
 channel, appeal to the next superior authority, but may in the mean- 
 time be required to undergo the punishment adjudged. The com- 
 manding officer who imposes the punishment, his successor in com- 
 mand, and superior authority shall have power to mitigate or remit 
 any unexecuted portion of the punishment. The imposition and 
 enforcement of disciplinary punishment under authority of this article 
 for any act or omission shall not be a bar to trial by court-martial 
 for a crime or offense growing out of the same act or omission; but 
 the fact that a disciplinary punishment has been enforced may be 
 shown by the accused upon trial, and when so shown shall be con- 
 sidered in determining the measure of punishment to be adjudged in 
 the event of a finding of guilty." 
 
 While commanding officers should always use their utmost influ- 
 ence to prevent breaches of discipline and compose conditions likely 
 to give rise to such breaches, they should also impose and enforce 
 the disciplinary punishment authorized by the above article. This 
 authority, involving the power, judgment, and discretion of the 
 commander, can not be delegated to or in any manner participated 
 in by others, but must be exercised by the commander upon his own 
 judgment and in strict compliance with the article and the regula- 
 tions prescribed by the President pursuant thereto. Accordingly, 
 the commanding officer of a detachment, company, or higher com- 
 mand will usually dispose of, and may award disciplinary punish- 
 ment for, any offense committed by any enlisted man of his com- 
 mand which would ordinarily be disposed of by summary court- 
 martial, when the accused does not deny that he committed the 
 offense and does not demand trial by court-martial before the com- 
 manding officer has made and announced his decision in the case. 
 
 334. Record of punishment. — For each punishment awarded, the 
 commander will cause a brief record to be made showing — 
 
 (a) Name of accused. 
 
 (b) Brief statement of offense, including time and place. 
 
 (c) Statement as to whether or not accused demanded trial by 
 court-martial. To be effective such demand must be made before 
 award of punishment by commanding officer. 
 
COURTS-MARTIAL— PUNISHMENTS. 153 
 
 (d) Disposition of case, with date and punishment awarded, if 
 any. ' 
 
 (e) Whether or not appeal was made to higher authority. 
 (/) Decision of higher authority on appeal. 
 
 (g) Whether or not accused was required to serve punishment 
 pending appeal. 
 
 335. Appeals. — If an appeal is made to the next superior authority it 
 shall be in writing through the immediate commander awarding the 
 punishment or his successor, who will immediately forward it to the 
 superior with a copy of the record. An appeal shall consist of a 
 brief statement signed by the accused, giving his reasons for regard- 
 ing the punishment as unjust or disproportionate, and shall be accom- 
 panied by a like brief statement by the commander in support of 
 the punishment awarded. The superior will, in passing upon the 
 appeal, hear no witnesses and will consider no statements other than 
 those forwarded with the appeal, but will be limited strictly to the 
 consideration of the punishment awarded. He will be reluctant to 
 disturb the award of punishment, but when justice clearly requires 
 such action he may modify, set aside, or even increase the punish- 
 ment awarded, but in no case will he award a different kind of pun- 
 ishment. After having considered the appeal he will return the 
 record to the commanding officer from whom received, with a state- 
 ment of his disposition of the case. 
 
 336. Not limited to soldiers. — The power is not limited in its applica- 
 tion, either in law or principle, to enlisted men, but may with pro- 
 priety be applied as well to commissioned officers, especially those 
 of junior grades. Obviously in the case of officers the occasion for 
 such action, will be less frequent, the variety of punishment available 
 more restricted, and the selection of the most effectual punishment 
 more perplexing, but when the best interests of discipline require 
 such action it shall be taken with firmness and in no wise restrained 
 by an unwarranted regard for the commissioned grade of the 
 offender. 
 
 If the accused demands a court-martial, steps will promptly be 
 taken to bring him to trial and notation of the demand will appear 
 upon the charges. 
 
 Section II, 
 
 CONFINEMENT IN A PENITENTIARY. 
 
 337. When authorized. — The forty-second article of war follows the 
 rules of the Federal Penal Code and practice respecting the impo- 
 sition of penitentiary confinement in so far as they can be applied 
 to court-martial procedure. Under the Federal Penal Code any 
 offense is a felony which is punishable underithe code or other statute 
 of the United States by confinement in excess of one year. But 
 
154: MANUAL FOR COURTS-MARTIAL. 
 
 no person may be confined in a penitentiary unless the punishment 
 actually adjudged for an offense of which he has been convicted 
 exceeds one year. Under civil procedure it is not permissible to 
 join in a single indictment and trial offenses of a different nature. 
 As a matter of practice, also, confinement is never ordered to be 
 executed in a penitentiary uilless among the offenses upon which the 
 sentence is awarded is found a felony; ' that is to say, an offense of 
 a civil nature, separately punishable by confinement to exceed one 
 year. The practical result is that no person is confined in a peni- 
 tentiary unless both of the following conditions subsist : 
 
 (i) The confinement that could lawfully be awarded as punish- 
 ment of some one of the offenses of which he stands convicted (if 
 that conviction stood alone) would exceed one year. 
 
 (2) The confinement actually adjudged exceeds one year. 
 
 The ninety-third and ninety-sixth articles of war now confer upon 
 courts-martial jurisdiction to try all crimes and offenses, not capital 
 of which persons subject to .military law may be guilty. Under the 
 military practice, dissimilar offenses may be joined in the same set 
 of charges; convictions may be had on one set of charges joining 
 crimes of a civil nature with purely military offenses, and a single 
 sentence may be adjudged on all the convictions. Also, there are 
 certain purely military offenses which are by statute made punish- 
 able by confinement in a penitentiary, regardless of the term of con- 
 finement imposed. Notwithstanding these departures from the prac- 
 tice of Federal courts, the jurisdiction granted to courts-martial to 
 punish offenses of a civil nature ought not to be exercised with 
 greater harshness than is practiced under the criminal jurisdiction 
 of United States courts, and the analogies with the penal rules of 
 those courts ought carefully to be maintained. The forty-second 
 article of war and the following rules of practice which result from 
 that article preseive these analogies as far as they can be preserved 
 under court-martial procedure. 
 
 338. Classes of sentences to be executed in a penitentiary. — Senten- 
 ces of the following classes may be executed in a penitentiary : 
 
 Class 1 ; Commutation of death sentence. Any confinement, 
 whether more or less than a year, awarded by way of commutation of 
 a death sentence, may be executed in a penitentiary; and this is true 
 whether the offense for which the sentence of death was awarded was 
 of a military or of a civil nature, and whether the sentence was 
 awarded on conviction of a capital charge alone or on conviction on 
 a capital charge coupled with conviction on other charges not capital. 
 
 Class 2: Military offenses. A sentence of confinement awarded 
 upon conviction of one pr more of the military offenses enumerated 
 in this class may be executed in a penitentiary, regardless of the 
 
COURTS-MARTIAL— PUNISHMENTS. 155 
 
 length of the sentence imposed, but, in practice, a penitentiary should 
 not be designated unless the confinement adjudged exceeds one year. 
 However, if a conviction is had on several offenses, either milifary or 
 civil in nature, one of which is included in this class, and the sen- 
 tence adjudged on all the convictions together exceeds one year, the 
 confinement may be executed in a penitentiary. The military offenses 
 comprised in this class are : 
 
 (a) Desertion in time of war. 
 
 (&) Repeated desertion in time of peace. 
 
 (c) Mutiny. 
 
 Class 3; Offenses of a civil nature. A sentence exceeding one 
 year's confinement, awarded, either on conviction of any one or more 
 of the several offenses of a civil nature described below, or on con- 
 viction of any one or more of the several offenses of' a civil nature 
 described below, coupled with a conviction or convictions of one or 
 more military offenses, may be executed in a penitentiary, if any one 
 of the several offenses of a civil nature standing alone would be 
 punishable by confinement exceeding one year by the limits of punish- 
 ment order, or, if not covered by said order, then by the law denounc- 
 ing the offense, or by any other Federal statute. 
 
 The civil offenses contemplated in class 3 are: 
 
 (a) An act or omission specified and denounced as an offense in 
 the Penal Code of the United States. 
 
 (&) An act or omissioii specified and denounced as an offense in 
 any other statute of the United States. This heading has reference 
 particularly to penal provisions not properly separable from the adminis- 
 trative laws of the several branches and departments of govern- 
 ment, and not included in the Penal Code. Such offenses will rarely 
 be encountered in court-martial practice. 
 
 (c) An act or omission committed or omitted in any place over 
 which the United States has exclusive jurisdiction as provided in the 
 third paragraph of section 272, Penal Code of the United States, 
 where such act is recognized as an offense by the law of the State, 
 Territory, or District in which such place is situate, and when such 
 act is not specifically denounced in ' the laws of Congress, but is 
 adopted by section 289 of said code. Such offenses, known to local 
 law and not specifically provided for by Federal law, will constitute 
 a small class, infrequently encountered. 
 
 {d) An act or omission recognized as an offense at the common 
 law as the same exists in the District of Columbia, wherever com- 
 mitted or omitted. The offenses under this head that may be encoun- 
 tered in cotirt-martial practice include the offense of sodomy. 
 
 339. Authority for penitentiary sentence to be cited. — In each case 
 .tried by general court-martial in which a penitentiary is designated as the 
 place of confinement of the person tried, the record of trial, when for- 
 
156 MANUAL FOR COURTS-MARTIAL. 
 
 warded to the Judge Advocate General oif the Army, will be accpm- 
 panied by a signed statement indicating the law or laws authorizing 
 the confinement in a penitentiary of the person sentenced. 
 
 In each case tried by general court-martial in which the confine- 
 ment of the offender in a penitentiary is authorized by law, but in 
 which a place other than a penitentiary is designated as the place of 
 confinement, the record of trial, when forwarded to the Judge Advo- 
 cate General of the Army, will be accompanied by a signed statement 
 indicating the law authorizing the confinement in a penitentiary of 
 the person sentenced and the reasons, briefly expressed, for desig- 
 nating a place other than a penitentiary, instead of a penitentiary, as 
 the place of confinement in the particular case. 
 
 If the law relied upon as authorizing confinement in a peniten- 
 tiary be a Federal statute an accurate citation will be regarded as 
 sufficient to indicate the law, but if any other law is relied upon as 
 authorizing such confinement, the law will be quoted in full in the 
 required statement. 
 
 Section III. 
 WAR DEPARTMENT POLICY REGARDING PUNISHMENTS. 
 
 340. Desertion. — The policy of the War Department respecting pun- 
 ishment for desertion was announced in General Orders, No. 77, War 
 Department, June 10, 1911. Corrective confinement and forfeiture 
 were suggested in cases of inexperienced soldiers who by svirrender 
 manifested a disposition to atone for their offenses. The number so 
 punished and saved to the service has so increased each year that this 
 policy has been enforced with fairly satisfactory results. In addi- 
 tion a limited nimiber of this class of offenders has been restored to 
 duty without trial under the provisions of A. R. 131. 
 
 Since that order was issued important changes have been intro- 
 duced in our military penology. Purely military offenders serving 
 sentences in the United States Disciplinary Barracks at Fort Leaven- 
 worth and its branches may be restored to an honorable status and 
 complete their enlistment. By the act of August 22, 1912 (37 Stat., 
 356), reenlistment of this class of offenders is authorized with the 
 approval, 'in each case, of the Secretary of War. Under the provisions 
 of the act of April 27, 1914 (38 Stat., 354), dishonorable discharge 
 may be suspended with a view to restoration to duty by remission 
 thereof should the conduct of the offender warrant. There are now 
 additional means of saving men to the colors — ^men whose offenses are 
 thoughtless acts due to youth or inexperience or committed under 
 some special stress, and for these reasons have in them less of the ele- 
 ment of culpability. Supplementing these methods is the establish- 
 
COURTS-MARTIAL— PUNISHMENTS. 157 
 
 ment of disciplinary organizations at the United States Disciplinary 
 Barracks where the offenders of this class who desire reenlistment or 
 restoration may receive an intensive practical training to fit them for 
 efficient service from the moment of rejoining. It is confidently 
 believed that men restored in this way will make better soldiers than 
 those restored by the old methods, viz., without trial under A. R. 131 
 or with trial and a short period of corrective punishment. 
 
 These old methods may be continued in the limited number of 
 cases where there are good grounds for belief that a soldier restored 
 by such, methods will creditably complete his enlistment period, but 
 all doubtful cases should be sent before a court competent to adjudge 
 dishonorable discharge and the loriger periods of confinement, to 
 the end that advantage may be taken of the more effective methods 
 of reformation and training by hard labor and intensive practical 
 rhilitary instruction now provided at the United States Disciplinary 
 Barracks. These periods of confinement are graduated so as to 
 prevent inequalities of punishment for like degrees of culpability 
 and are sufficient, it is believed, to meet the ends of punishment where 
 restoration to duty is not in contemplation. Where restoration is in 
 contemplation, as in case of purely military offenders, including 
 deserters, the period of confinement imposed is, under the new policy, 
 in practical effect the maximum of an indeterminate sentence. In 
 other words, the period for which the offender is held depends 
 entirely upon himself. With good conduct and proper progress 
 toward reform evidencing efficiency in training and fitness to resume 
 service relations the sentence of confinement terminates and the 
 honorable status of duty with the colors is resumed. 
 
 While it is the effect of this policy to mitigate the condition of the 
 peace deserter who desires to redeem his record and earn an honorable 
 restoration to duty with the colors, it carries no substantial mitiga- 
 tion as to other classes of deserters. Experience has not thus far 
 demonstrated the wisdom of any change in the policy of severe 
 punishment for this latter class. .An engagement for military service 
 has little in common with an ordinary private contract for personal 
 service, and the fact that an individual may abandon such a con- 
 tract with only minor consequences to himself furnishes no suggestion 
 that a corresponding rule may be properly adopted in the Army. 
 Nor does the fact that the early requirement of the common law that 
 a call to civ.'l office or civil employment under the Governrnent could 
 not be disregarded by the citizen, nor the obligations of such office or 
 employment be laid down at his will, no longer obtains, furnish any 
 such suggestion. An engagement for military service creates a 
 special status, and many obligations flow from that status which are 
 not obligations of the citizen in the civil service of the Government 
 or under a private contract for personal service. Other closely related 
 
158 MANUAL FOR COURTS-MARTIAL. 
 
 considerations inherent in the nature of mihtary service support 
 this view. The Army is an emergent arm of the public service which 
 the Nation holds ready for a time of great peril. Military service is 
 an obligation which every citizen owes the Government. It is settled 
 law that such service may be compelled, if necessary, by draft. Nor 
 is the obligation of the soldier who volunteers for a fixed period dif- 
 ferent from that of the drafted soldier. By his act of volunteering 
 he consecrates himself to the military service. His engagement, sup- 
 ported by an oath of allegiance, is that the Nation may depend upon 
 him for such service during the fixed period, whatever may be the 
 emergency. When this engagement is breached a high obligation to 
 the Nation is disregarded, a solemn oath of allegiance is violated, and 
 the Government is defrauded in the amount of its outlay incident to 
 inducting the soldier into the military service, training, clothing, and 
 caring for him while he remains in that service, and transporting him 
 to the station from which he deserts. Desertion is thus seen to be, 
 not simply a breach of contract for personal service, but a grave crime 
 against the Government; in time of war perhaps the gravest that a 
 soldier can commit, and at such times punishable with death. These 
 facts furnish ample justification for a continuance of the policy of 
 severe punishment for the offense of desertion in time of peace, sub- 
 ject only to the qualification that it should not be severe to the degree 
 of barring an honorable restoration to duty of the thoughtless, young, 
 or inexperienced offenders who desert and who, on return, manifest 
 a desire to atone for their desertions and qualify themselves in 
 character and training for such restoration by service in the disci- 
 plinary battalions and companies now organized at the United States 
 Disciplinary Barracks. 
 
 341. Segregation of prisoners. — It is the policy of the War Depart- 
 ment to separate, so far as practicable, general prisoners convicted of 
 offenses punishable by penitentiary confinement from general pris- 
 oners convicted of purely military offenses or of misdemeanors in 
 connection with purely military offenses. In furtherance of this 
 policy, reviewing authorities will designate a penitentiary as the 
 place of confinement of general prisoners sentenced to be confined 
 for more than one year according to the. rules laid down in Sec. 
 tion II, supra, except in individual cases in which the proved 
 circumstances show that the holding of the prisoners so convicted in 
 barracks associations with misdemeanants and military offenders will 
 not be to the detriment of the latter. Instructions will be issued 
 from time to time by the War Department to commanders having 
 general court-martial jurisdiction regarding the place of confine- 
 
COURTS-MARTIAL— PUNISHMENTS. 159 
 
 ment for general prisoners sentenced to confinement in penitentiaries. 
 (C. M. C. M., No. I.) 
 
 342. Adaptation of punishments. — In cases where the punishment is 
 discretionary the best interests of the service and of society demand 
 thoughtful application of the following principles: That because 
 of the effect of confinement upon the soldier's self-respect confine- 
 ment is not to be ordered when the interests of the service permit it 
 to be avoided; that a man against whom there is no evidence of 
 previous convictions for the same or similar offenses should be pun- 
 ished less severely than one who has offended repeatedly; that the 
 presence or absence of extenuating or aggravating circumstances 
 should be taken into consideration in detertnining the measure of 
 punishment in any case; that the maximum limits of punishment 
 authorized are to be applied only in cases in which, from the nature 
 and circumstances of the offense and the general conduct of the 
 offender, severe punishment appears to be necessary to meet the 
 ends of discipline; and that in adjudging punishment the court 
 should take into consideration the individual characteristics of the 
 accused, with a view to determining the nature of the punishment 
 best suited to produce the desired results in the case in question, as 
 the individual factor in one case may be such that punishment of 
 one kind would serve the ends of discipline, while in another case 
 punishment of a different kind would be required. As an instance 
 of the necessity for adapting punishment to the particular case 
 under consideration, it is to be noted that prior experience with 
 detention of pay by sentence of court-martial indicates that this 
 form of punishment, while not generally applicable, was neverthe- 
 less found to be an effective means of restraint and discipline for a 
 considerable number of offenders. 
 
 343. Relative severity of punishments. — The usual punishments im- 
 posed upon soldiers are the following, beginning- with the least 
 severe : 
 
 (1) Detention of pay, 
 
 (2) Forfeiture of pay, 
 
 (3) Reduction, 
 
 (4) Hard labor without confinement, 
 
 (5) Confinement at hard labor, and 
 
 (6) Dishonorable discharge. 
 
 In the absence of evidence of two or more previous convictions, a 
 minor offense, the nature of w'hich appears to demand punishment by 
 hard labor, should ordinarily be punished by hard labor without con- 
 finement, rather than by confinement at hard labor. For offenses 
 properly punishable by detention of pay, forfeiture of pay, reduc- 
 
160 MANUAL FOR COURTS-MARTIAL. 
 
 tion, or hard labor without confinement, those forms of punishment 
 should, as a rule, be resorted to before confinement at hard labor is 
 imposed. 
 
 Section IV. 
 
 PROHIBITED PUNISHMENTS. 
 
 344. By statute. — Punishment by fiogging, or by branding, marking, 
 or tattooing on the body is prohibited. (A. W. 41 .) 
 
 345. By custom and fegulations. — Many punishments formerly sanc- 
 tioned have now, under a more enlightened spirit of penology, become 
 so obsolete as to be effectually prohibited by custom without the 
 necessity of regulations; among these, are carrying a loaded knap- 
 sack, wearing irons (both handcuffs and leg irons — these are now 
 used only in exceptional cases for the purpose of preventing escape 
 and not as a punishment), shaving the head, placarding, pillory, 
 stocks, and tying up by the thumbs. To impose military duty in any 
 form as a punishment must tend to degrade it, to the prejudice of the 
 best interests of the service; such punishments, therefore, as impos- 
 ing tours of guard duty or requiring a soldier to sound all calls at 
 the post for a certain period, are forbidden. Solitary confinement 
 on a bread and water diet and the placing of a prisoner in irons are 
 regarded as means of enforcing prison discipline. They will not be 
 imposed as a punishment by a court-martial. 
 
 Section V. 
 DEATH —COWARDICE —FRAUD . 
 
 346. Death penalty. — No person shall, by general court-martial, be 
 convicted of an offense for which the death penalty is made manda- 
 tory by law, nor sentenced to 'suffer death, except by the concur- 
 rence of two-thirds of the members of said court-martial and for an 
 offense in these articles expressly made punishable by death. (A. W. 
 43.) A court-martial, in imposing the sentence of death, should not 
 designate the tinie and place for its execution, such designation not 
 being within its province, but pertaining to that of the reviewing or 
 confirming authority. If it does so designate, this part of the sen- 
 tence may be disregarded, and a different time and place be fixed by 
 the reviewing or confirming authority. (Digest, p. 165, XCVI, B.) If 
 the designated day passes without execution, the same authority, or 
 his superior, may name another day. Death by hanging is considered 
 more ignominious than death by shooting and is the usual method of 
 execution designated in the case of spies, of persons guilty of murder 
 in connection with mutiny, or sometimes for desertion in the face of 
 the enemy; but in case of a purely military offense, as sleeping on 
 
COURTS-MARTIAL— PUNISHMENTS. 161 
 
 post, such sentence when imposed is usually "to be shot to death with 
 musketry." Hanging is the proper method of executing a death sen- 
 tence when imposed for violation of A. W. 92. For the sake of 
 example and to deter others from committing like offenses the death 
 sentence may, when deemed advisable, be executed in the presence of 
 the troops of the command. 
 
 347. Cowardice — ^Fraud — ^Accessory penalty. — ^When an officer is dis- 
 missed from the service for cowardice or fraud, the crime, punish- 
 ment, name, and place of abode of the delinquent shall be published 
 in the newspapers in and about the camp and in the State from which 
 the offender came or where he usually resides; and after such publi- 
 cation it shall be scandalous for an officer to associate with him. 
 (A. W. 44.) The terms "cowardice" and "fraud" as employed in 
 this article refer mainly to the offenses made punishable by A. W. 75 
 and 94. With these, however, may be regarded as included all 
 offenses in which fraud or cowardice is necessarily involved, though 
 the same be not expressed in terms in the charge or specification. 
 (Digest, p. 166, C, A.) The publication throughout the United 
 States in press dispatches of "the crime, punishment, name, 'and 
 place of abode" of the accused is a sufficient compliance with the 
 article. (See Digest, p. 167, C, B.) 
 
 Section VI. 
 MAXIMUM LIMITS. 
 
 348. By whom prescribed. — Whenever the punishment for a crime or 
 offense made punishable by these articles is left to the discretion of 
 the court-martial, the punishment shall not, in time of peace, exceed 
 such limit or limits as the President may from time to time prescribe. 
 (A. W. 45.) 
 
APPENDIX 1. 
 THE ARTICLES OF WAR. 
 
 TABLE OF CONTENTS. 
 
 I. Preliminary Provisions: 
 
 Sec. 1342, Revised Statutes. 
 
 Art. 1. Definitions. 
 
 Art. 2. Persons subject to military law. 
 II. Courts-Martial: 
 
 Art. 3. Courts-martial classified, 
 (o) Composition — 
 
 Art. 4. Who may serve on courts-martial. 
 
 Art. 5. General courts-martial. 
 
 Art. 6. Special courts-martial. 
 
 Art. 7. Summary courts-martial. 
 (&) By whom appointed — 
 
 Art. 8. General courts-martial. 
 
 Art. 9. Special courts-martial. 
 
 Art. 10. Summary courts-martial. 
 
 Art. 11. Appointment of judge advocates, 
 (c) Jurisdiction — 
 
 Art. 12. General courts-martial. 
 
 Art. 13. Special courts-martial. 
 
 Art. 14. Summary courts-martial. 
 
 Art. 15. Not exclusive. 
 
 Art. 16. Officers, how triable. 
 {d) Procedure — 
 
 Art. 17. Judge advocate to prosecute. 
 
 Art. 18. Challenges. 
 
 Art. 19. Oaths. 
 
 Art. 20. Continuances. 
 
 Art. 21. Refusal to plead. 
 
 Art. 22. Process to obtain witnesses. 
 
 Art. 23. Refusal to appear or testify. 
 
 Art. 24. Compulsory self-incrimination prohibited. 
 
 Art. 25. Depositions — when admissible. 
 
 Art. 26. Depositions — before whom taken. 
 
 Art. 27. Courts of inquiry — ^records of — when admissible. 
 
 Art. 28. Resignation without acceptance does not release officer. 
 
 Art. 29. Enlistment without discharge. 
 
 Art. 30. Closed sessions. 
 
 Art. 31. Order of voting. 
 
 Art. 32. Contempts. 
 
 Art. 33. Records — general courts-martial. 
 
 Art. 34. Records — special and summary courts-martial. 
 91487°— 17— 21 
 
 305 
 
306 MANUAL FOR COURTS-MARTIAL. 
 
 IL Courts-Martial — Continued. 
 {d) Procedure — Continued. 
 
 Art. 35. Disposition of records — general courts-martial. 
 
 Art. 36. Disposition of records — special and summary courts-martial. 
 
 Art. 37. Irregularities — effect of. 
 
 Art. 38. President may prescribe rules. 
 («) Limitations upon prosecutions — 
 
 Art. 39. As to time. 
 
 Art. 40. As to number. 
 (/) Punishments — 
 
 Art. 41. Certain kinds prohibited. 
 
 Art. 42. Places of confinement — when lawful. 
 
 Art. 43.. Death sentence — when lawful. 
 
 Art. 44. Cowardice; fraud; accessory penalty. 
 
 Art. 45. Maximum limits, 
 (g) Action by appointing or superior authority — 
 
 Art. 46. Approval and execution of sentence. 
 
 Art. 47. Powers incident to power to approve. 
 
 Art. 48. Confirmation — when required. 
 
 Art. 49. Powers incident to power to confirm. 
 
 Art. 50. Mitigation or remission of sentences. 
 
 Art. 51. Suspension of sentences of dismissal or death. 
 
 Art. 52. Suspension of sentence of dishonorable discharge. 
 
 Art. 53. Suspension of sentences of forfeiture or confinement. 
 III. Punitive Articles: 
 
 (a) Enlistment; muster; returns — 
 
 Art. 54. Fraudulent enlistment. 
 
 Art. 55. Officer making unlawful enlistment. 
 
 Art. 56. Muster rolls — false muster. 
 
 Art. 57. False returns — omission to render returns. 
 (6) Desertion; absence without leave — 
 
 Art. 58. Desertion. 
 
 Art. 59. Advising or aiding another to desert. 
 
 Art. 60. Entertaining a deserter. 
 
 Art 61 . Absence without leave. 
 
 (c) Disrespect'; insubordination; mutiny — 
 
 Art. 62. Disrespect toward the President, Vice President, Congress, 
 
 Secretary of War, governors, legislatiures. 
 Art. 63. Disrespect toward superior officers. 
 Art. 64. Assaulting or willfully disobeying superior officer. 
 Art. 65. Insubordinate conduct toward noncommissioned officer. 
 Art. 66. Mutiny or sedition. 
 Art. 67. Failure to suppress mutiny or sedition. 
 Art. 68. Quarrels; frays; disorders. 
 
 (d) Arrest; confinement — 
 
 Art. 69. Arrest or confinement of accused persons. 
 Art. 70. Investigation of and action upon charges. 
 Art. 71. Refusal to receive and keep prisoners. 
 Art. 72. Report of prisoners received. 
 Art. 73. Releasing prisoner without proper authority. 
 Art. 74. Delivery of offenders to civil authorities. 
 
 (e) War offenses — 
 
 Art. 75. Misbehavior before the enemy. 
 
 Art. 76. Subordinates compelling commander to surrender. 
 
APPENDICES. 307 
 
 III. Punitive Articles — Continued, 
 (e) War offenses — Continued. 
 
 Art. 77. Improper using of countersign. 
 Art. 78. Forcing a safeguard. 
 
 Art! 79. Captured property to be secured for public service. 
 Art. 80. Dealing in captxu-ed or abandoned property. 
 Art. 81. Relieving, corresponding with, or aiding the enemy. 
 Art. 82. Spies. 
 (/) Miscellaneous crimes and offenses — 
 
 Art. 83. Military property — willful or negligent loss, damage, or 
 
 wrongful disposition of. 
 Art. 84. Waste or unlawful disposition of military property issued to 
 
 soldiers. 
 Art. 85. Drunk on duty. 
 Art. 86. Misbehavior of sentinel. 
 
 Art. 87. Personal interest in sale of provisions. • 
 
 Art. 88. Intimidation of persons bringing provisions. 
 Art. 89. Good order to be maintained and wrongs redressed. 
 Art. 90. Provoking speeches or gestures. 
 Art. 91. Dueling. 
 Art. 92. Murder — ^rape. 
 Art. 93. Various crimes. 
 Art. 94. Frauds against the Government. 
 Art. 95. Conduct unbecoming an officer and gentleman. 
 Art. 96. General article. 
 
 IV. Courts of Inquiry: 
 
 Art. 97. When and by whom ordered. 
 
 Art. 98. Composition. 
 
 Art. 99. Challenges. 
 
 Art. 100. Oath of members and recorder. 
 
 Art. 101. Powers; procedure. 
 
 Art. 102. Opinion on merits of case. 
 
 Art. 103. Record of proceedings — ^how authenticated. 
 
 V. Miscellaneous Provisions: 
 
 Art. 104. Disciplinary powers of commanding officers. 
 
 Art. 105. Injuries to person or property — ^redress of. 
 
 Art. 106. Arrest of deserters by civil officials. 
 
 Art. 107. Soldiers to make good time lost. 
 
 Art. 108. Soldiers — separation from the service. 
 
 Art. 109. Oath of enlistment. 
 
 Art. 110. Certain articles to be read and explained. 
 
 Art. 111. Copy of record of trial. 
 
 Art. 112. Effects of deceased persons — disposition of. 
 
 Art. 113. Inquests. 
 
 Art. 114. Authority to administer oaths. 
 
 Art. 115. Appointment of reporters and interpreters. 
 
 Art. 116. Powers of assistant judge advocates. 
 
 Art. 117. Removal of civil suits. 
 
 Art. 118. Officers — separation from service. 
 
 Art. 119. Rank and precedence among Regulars, Militia, and Volun- 
 teers. 
 
 Art. 120. Command when different corps or commands happen to 
 join. 
 
 Art. 121. Complaints of wrongs. 
 
308 
 
 MANUAL FOR COURTS-MARTIAL, 
 
 Table showing numbers of old articles and of corresponding new articles. 
 
 OLD AND NEW CODES 
 
 Old 
 
 New 
 
 Old 
 
 New 
 
 Old 
 
 New 
 
 Old 
 
 New 
 
 number 
 
 number 
 
 number 
 
 number 
 
 number 
 
 number 
 
 number 
 
 number 
 
 1 
 
 
 32 
 33 
 
 61 
 61 
 
 63 
 64 
 
 2 
 2 
 
 96 
 97 
 
 43 
 
 2 
 
 iog.'iio" 
 
 42 
 
 3 
 
 55 
 
 34 
 
 61 
 
 65 
 
 69 
 
 98 
 
 41 
 
 4 
 
 108 
 
 35 
 
 61 
 
 66 
 
 69 
 
 99 
 
 118 
 
 5 
 
 56 
 56 
 57 
 
 36 
 37 
 38 
 
 
 67 
 68 
 69 
 
 71 
 72 
 73 
 
 100 
 101 
 102 
 
 44 
 
 6 
 
 
 
 7 
 
 ii'ss" 
 
 40 " 
 
 8 
 
 57 
 
 39 
 
 86 
 
 70 
 
 70 
 
 103 
 
 39 
 
 9 
 
 79 
 
 40 
 
 61 
 
 71 
 
 70 
 
 104 
 
 46 
 
 10 
 
 
 41 
 42 
 43 
 
 75 
 75 
 76 
 
 172 
 173 
 
 74 
 
 8 
 
 8 
 
 11 
 
 105 
 106 
 107 
 
 48 
 
 11 
 
 
 48 
 
 12 
 
 56' ■ 
 
 48 
 
 13 
 
 56 
 
 44 
 
 77 
 
 175 
 
 5 
 
 108 
 
 48 
 
 14 
 
 56 
 
 45 
 
 81 
 
 76 
 
 
 109 
 
 46 
 
 15 
 
 83 
 
 46 
 
 81 
 
 77 
 
 i" 
 
 111 
 
 51 
 
 .16 
 
 84 
 
 47 
 
 58 
 
 78 
 
 4 
 
 112 
 
 50 
 
 17 
 
 84 
 
 48 
 
 107 
 
 79 
 
 16 
 
 113 
 
 35 
 
 18 
 
 87 
 
 49 
 
 28 
 
 181 
 
 6,9,13 
 
 114 
 
 111 
 
 19 
 
 62 
 
 50 
 
 29,60 
 
 182 
 
 6,9,13 
 
 115 
 
 97 
 
 20 
 
 63 
 
 51 
 
 59 
 
 183 
 
 13,14 
 
 116 
 
 98 
 
 21 
 
 64 
 66 
 ,67 
 
 52 
 53 
 54 
 
 
 84 
 85 
 86 
 
 19 
 19 
 32 
 
 117 
 118 
 119 
 
 100 
 
 22 
 
 
 101 
 
 23 
 
 ■ '89,165" 
 
 102 
 
 24 
 
 68 
 
 55 
 
 89, 105 
 
 87 
 
 
 120 
 
 103 
 
 25 
 
 90 
 
 56 
 
 88 
 
 88 
 
 is " 
 
 121 
 
 27 
 
 26 
 
 91 
 
 57 
 
 78 
 
 89 
 
 21 
 
 122 
 
 120 
 
 27 
 
 91 
 
 38 
 
 92, 93 
 
 90 
 
 17 
 
 124 
 
 119 
 
 28 
 
 91 
 
 59 
 
 74 
 
 91 
 
 25 
 
 12S 
 
 112 
 
 29 
 
 121 
 
 60 
 
 2,94 
 
 92 
 
 19 
 
 126 
 
 112 
 
 30 
 
 121 
 
 61 
 
 95 
 
 93 
 
 20,70 
 
 127 
 
 112 
 
 31 
 
 61 
 
 62 
 
 93,96 
 
 95 
 
 31 
 
 128 
 
 110 
 
 lOld articles 72, 73, 75, 81, 8 2, and 83 were replaced by the act of Mar. 2, 1913 (37 Stat., 723) , 
 effective July 1, 1913. 
 
 [Note. — Except as otherwise specified herein this code becomes effective on 
 March 1, 1917.] 
 
 Be it enactei by the Senate and House of Representatives of the United 
 States of America in Congress assembled. 
 
 Sec. 3. That section thirteen hundred and forty-two of the Revised Statutes 
 of the United States be, and the same is hereby, amended to read as follows: 
 
 "Sec. 1342. The articles included in this section shall be known as the Ar- 
 ticles of War and shall at all times and in all .places govern the armies of the 
 United States. 
 
 "L Preliminary Provisions. 
 
 "Article 1. Definitions. — The following words when used in these articles 
 shall be construed in the sense indicated in this Article, vmless the context 
 shows that a different sense is intended, namely. 
 
 "(a) The word 'officer' shall be construed to refer to a commissioned officer; 
 
 "(b) The word 'soldier' shall be construed as including a noncommissioned 
 officer, a private, or any other enlisted man ; 
 
 "(c) The word 'company' shall be understood as including a troop or bat- 
 tery ; and 
 
 "(d) The word 'battalion' shall be understood as including a squadron. 
 
 "Art. 2, Persons subject to military law. — The following persons are sub- 
 ject to these articles and shall be understood as included in the term 'any per- 
 son subject to military law,' or 'persons subject to military law,' whenever used 
 in these articles: Provided, That othing contained in this Act, except as specifi- 
 
APPENDICES. 309 
 
 cally provided in Article two, subparagraph (c), shall be construed to apply to 
 any person under the United States naval jurisdiction, unless otherwise specifi- 
 cally provided by law. 
 
 "(a) All officers and soldiers belonging to the Regular Army of the United 
 States; all volunteers, from the dates of their muster or acceptance into the 
 military service of the United States; and all other persons lawfully called, 
 drafted or ordered into, or to duty or for training in, the said service, from the 
 dates they are required by the term of the call, draft or order to obey the same; 
 
 "(b) Cadets; 
 
 "(c) Officers and soldiers of the Marine Corps when detached for service with 
 the armies of the United States by order of the President; Provided, That an 
 officer or soldier of the Marine Corps when so detached may be tried by military 
 court-martial for an offense committed against the laws for the government of 
 the naval service prior to his detachment, and for an offense committed against 
 these articles he may be tried by a naval court-martial after such detachment 
 ceases ; 
 
 "(d) All retainers to the camp and all persons accompanying or serving with 
 the armies of the United States without the territorial jurisdiction of the 
 United States, and in time of war all such retainers and persons accompanying 
 or serving with the armies of the United States in the field, both within and 
 without the territorial jurisdiction of the United States, though not otherwise 
 subject to these articles; 
 
 "(e) All persons under sentence adjudged by courts-martial; 
 
 "(f) All persons admitted, into the Regular Army Soldiers' Home at Washing- 
 ton, District of Columbia. 
 
 "II. Courts-martial. 
 
 "Art. 3. Courts-martial classified. — Courts-martial shall be of three kinds, 
 namely ; 
 
 "First, general courts- martial ; 
 "Second, special courts-martial; and 
 "Third, summary courts-martial. 
 
 "A. Composition. 
 
 "Art. 4. Who may serve on courts-martial. — ^AU officers in the military 
 service of the United States, and officers of the Marine Corps when detached for 
 service with the Army by order of the President, shall be competent to serve on 
 courts-martial for the trial of any persons who may lawfully be brought before 
 such courts for trial. 
 
 [Note. — This article became effective on August 29, 1916]. 
 
 "Art. 5. General courts-martial. — General courts-martial may consist of any 
 number of officers from five to thirteen, inclusive; but they shall not consist of 
 less than thirteen, when that number can be convened without manifest injury 
 to the service. 
 
 "Art. 6. Special courts-martial. — Special courts-martial may consist of any 
 number of officers from three to five, inclusive. 
 
 "Art. 7. Summary courts-martial. — A summary court-martial shall consist 
 of one officer. 
 
 "b, by whom appointed. 
 
 "Art. 8. General courts-martial. — The President of the United States, the 
 commanding officer of a territorial division or department, the Superintendent 
 of the Military Academy, the commanding officer of an army, an army corps, a 
 
310 MANUAL FOR COURTS-MARTIAL. 
 
 division, or a separate brigade, and, when empowered by the President, the com- 
 manding officer of any district or of any force or body of troops may appoint 
 general courts-martial; but when any such commander is the accuser or the 
 prosecutor of the person or persons to be tried, the court shall be appointed by 
 superior competent authority, and no officer shall be eligible to sit as a member 
 of such court when he is the accuser or a witness for the prosecution. 
 
 "Art. 9. Speciai, Courts-martial. — The commanding officer of a district, gar- 
 rison, fort, camp, or other place where troops are on duty, and the commanding 
 officer of a brigade, regiment, detached battalion, or other detached command 
 may appoint special courts-martial; but when any such commanding officer is 
 the accuser or the prosecutor of the person or persons to be tried, the court 
 shall be appointed by superior authority, and may in any case be appointed by 
 superior authority when by the latter deemed desirable; and no officer shall be 
 eligible to sit as a member of such court when he is the accuser or a witness for 
 the prosecution. 
 
 "Art. 10. Summary courts-martial. — The commanding officer of a garrison, 
 foit, camp, or other place where troops are on duty, and the commanding officer 
 of a regiment, detached battalion, detached company, or other detachment may 
 appoint summary courts-martial; b^ut such summary courts-martial may in any 
 case be appointed by superior authority when by the latter deemed desirable: 
 Provided, That when but one officer is present with a command he shall be the 
 summary court-martial of that command and shall hear and determine cases 
 brought before him. 
 
 "Art. 11. Appointment of judge advocates. — For each general or special 
 court-martial the authority appointing the court shall appoint a judge advocate, 
 and for each general court-martial one or more assistant judge advocates when 
 necessary. 
 
 "C. JURISDICTION. 
 
 "Art; 12. General courts-martial. — General courts-martial shall have power 
 to try any person subject to military law for any crime or offense made pun- 
 ishable by these articles and any other person who by the law of war is subject 
 to trial by military tribunals: Provided, That no officer shall be brought to trial 
 before a general court-martial appointed by the Superintendent of the Military 
 Academy. 
 
 "Art. 13. Special courts-martial. — Special courts-martial shall have power 
 to try any person subject to military law, except an officer, for any crime or 
 offense not capital made punishable by these articles: Provided, That the Presi- 
 dent may, by regulations, which he may modify from time to time, except from 
 the jurisdiction of special courts-martial any class or classes of persons subject 
 to military law. 
 
 "Special courts-martial shall not have power to adjudge dishonorable dis- 
 charge, nor confinement in excess of six months, nor to adjudge forfeiture of 
 more than six months' pay. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 14. Summary courts-martial. — Summary courts-martial shall have 
 power to try any person subject to military law, except an officer, a cadet, or a 
 soldier holding the privileges of a certificate of eligibility to promotion, for any 
 crime or offense not capital made punishable by these articles: Provided, That 
 noncommissioned officers shall not, if they object thereto, be brought to trial 
 before a summary court-martial without the authority of the officer competent 
 to bring them to trial before a general court-martial: Provided further, That 
 the President may, by regulations, which he may modify from time to time, ex- 
 
APPENDICES. . 311 
 
 cept from the jurisdiction of summary courts-martial any class or classes of 
 persons subject to military law. 
 
 "Summary courts-martial shall not have power to adjudge confinement in 
 excess of three months, nor to adjudge the forfeiture of more than three months' 
 pay: Provided, That when the summary court officer is also the commanding officer 
 no sentence of such summary court-martial adjudging confinement at hard labor 
 or forfeiture of pay, or both, for a period in excess of one month shall be carried , 
 into execution until the same shall have been approved by superior authority. 
 [XoTE. — This article became effective on August 29, 1916.J 
 
 "Art. 15. Not exclusive. — The provisions of these articles conferring jurisdic- 
 tion upon courts-martial shall not be construed as depriving military com- 
 missions, provost courts, or other military tribunals of concurrent jurisdiction in 
 respect of offenders or offenses that by the law of war may be lawfully triable 
 by such military commissions, provost courts, or other military tribunals. 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 16. Officers; how triable. — Officers shall be triable only by general 
 courts-martial, and in no case shall an officer, when it can be avoided, be tried 
 by officers inferior to him in rank. 
 
 D. procedure. 
 
 "Art. 17. Judge Advocate to prosecute. — The judge advocate of a general or 
 special court-martial shall prosecute in the name of the United States, and shall, 
 under the direction of the court, prepare the record of its proceedings. The 
 accused shall have the right to be represented before the court by counsel of his 
 own selection for his defense, if such counsel be reasonably available, but should 
 he, for any reason, be unrepresented by counsel, the judge advocate shall from 
 time to time throughout the proceedings advise the accused of his legal rights. 
 
 "Art. 18. Challenges.- — Members of a general or special court-martial may 
 be challenged by the accused, but only for cause stated to the court. The 
 court shall determine the relevancy and validity thereof, and shall not receive 
 a challenge to more than one member at a time. 
 
 "Art. 19. Oaths. — The judge advocate of. a general or special court-martial 
 shall administer to the members of the court, before they proceed upon any 
 trial, the following oath or affirmation: 'You, A. B., do swear (or affirm) that 
 you will well and truly try and determine, according to the evidence, the matter 
 now before you, between the United States of America and the person to be 
 tried, and that you will duly administer justice, without partiality, favor, or 
 affection, according to the provisions of the rules and articles for the govern- 
 ment of the armies of the United States, and if any doubt should arise, not ex- 
 plained by said articles, then according to your conscience, the best of your un- 
 derstanding, and the custom of war in like cases; and you do further swear 
 (or affirm) that you will not divxilge the findings or sentence of the court until 
 they shall be published by the proper authority, except to the judge advocate 
 and assistant judge advocate; neither will you disclose or discover the vote or 
 opinion of any particular member of the court-martial, unless required to give 
 evidence thereof as a witness by a court of justice in due course of law. So 
 help you God.' 
 
 "When the oath or affirmation has been administered to the members of a 
 general or special court-martial, the president of the court shall administer to 
 the judge advocate and to each assistant judge advocate, if any, an oath or 
 affirmation in the following form: 'You, A. B., do swear (or afBrm) that you 
 
312 MANUAL FOR COURTS-MARTIAL. 
 
 will not divulge the findings or sentence of the court to any but the proper au- 
 thority until they shall b^duly disclosed by the same. So help you God.' 
 
 "All persons who give evidence before a court-martial shall be examined on 
 oath or affirmation in the following form: 'You swear (or affirm) that the 
 evidence you shall give in the case now in hearing shall be the truth, the whole 
 truth, and nothing but the truth. So help you God.' 
 
 "Every' reporter of the proceedings of a court-martial shall, before entering 
 upon his duties, make oath or affirmation in the following form: 'You swear 
 (or affirm) that you will faithfully perform the duties of reporter to this 
 court. So help you God.' 
 
 "Every interpreter in the trial of any case before a court-martial shall, be- 
 fore entering upon his duties, make oath or affirmation in the following form : 
 'You swear (or affirm) that you will truly interpret in the case now in hear- 
 ing. So help you God.' 
 
 "In case of affirmation the closing sentence of adjuration will be omitted. 
 
 "Art. 20. Continuances. — ^A court-martial may, for reasonable cause, grant 
 a continuance to either party for such time and as often as may appear to be 
 just. 
 
 "Art. 21. Refusal to plead. — When the accused, arraigned before a court- 
 martial, from obstinacy and deliberate design stands mute or answers foreign 
 to the purpose, the court may proceed to trial and judgment as if he had pleaded 
 not guilty. 
 
 "Art. 22. Process to obtain witnesses. — Every judge advocate of a general 
 or special court-martial and every summary court-martial shall have power to 
 issue the like process to compel witnesses to appear and testify which courts 
 of the United States, having criminal jurisdiction, may lawfully issue; but such 
 process shall run to any part of the United States, its Territories, and posses- 
 sions. 
 
 "Art. 23. Refusal to appear or testify. — Every person not subject to mili- 
 tary law who, being duly subpoenaed to appear as a witness before any military 
 court, commission, court of inquiry, or board, or before any officer, military or 
 civil, d,esignated to take a deposition to be read in evidence before such court, 
 commission, court of inquiry, or board, willfully neglects or refuses to appear, 
 or refuses to qualify as a witness, or to testify, or produce documentary evi- 
 dence which such person may have been legally subprenaed to produce, shall 
 be deemed guilty of a misdemeanor, for which such person shall be punished 
 on information in the district court of the United States or in a court of original 
 criminal jurisdiction in any of the territorial possessions of the United States, jur- 
 isdiction being hereby conferred upon such courts for such purpose; and it shall 
 be the duty of the United States district attorney or the officer prosecuting for 
 the Government in any such court of original criminal jurisdiction, on the certi- 
 fication of the facts to him by the military court, commission, court of inquiry, 
 or board, to file an information against and prosecute the person so offending, and 
 the punishment of such person, on conviction, shall be a fine of not more than 
 $500 or imprisonment not to exceed six months, or both, at the discretion of 
 the court: Provided, That the fees of such witness and his mileage, at the 
 rates allowed to witnesses attending the courts of the United States, shall be 
 duly paid or tendered said witness, such amounts to be paid out of the appro- 
 priation for the compensation of witnesses. 
 
 "Art. 24. Compulsory self-incrimination prohibited. — No witness before a 
 military court, commission, court of inquiry, or board, or before any officer, 
 military or civil, designated to take a deposition to be read in evidence before a 
 military court, commissions, court of inquiry, or board, shall be compelled to 
 
APPENDICES. 313 
 
 incriminate himself or to answer any questions which may tend to incriminate 
 or degrade him, 
 
 "Art. 25. Depositions — when admissible. — ^A duly authenticated deposition 
 taken upon reasonable notice to the opposite party may be read in evidence be- 
 fore any military court or commission in any case not capital, or in any pro- 
 ceeding before a. court of inquiry or a military board, if such deposition be taken 
 when the witness resides, is found, or is about to go beyond the State, Territory, 
 or District in which the court, commission, or board is ordered to sit, or beyond 
 the distance of one hundred miles from the place of trial or hearing, or when it 
 appears to the satisfaction of the court, commission, board, or appointing au- 
 thority that the witness, by reason of age, sickness, bodily infirmity, imprison- 
 ment, or other reasonable cause, is unable to appear and testify in person at 
 the place of trial or hearing: Provided, That testimony by deposition may be 
 adduced for the defense in capital cases. 
 
 "Art. 26. Depositions — Before whom taken. — Depositions to be read in evi- 
 dence before military courts, commissions, courts of inquiry, , or military boards, 
 or for other use in military administration, may be taken before and authenti- 
 cated by any officer, military or civil, authorized by the laws of the United 
 States or by the laws of the place where the deposition is taken to administer 
 oaths. 
 
 "Art. 27. Courts of inquiry. — Records of, when admissible. — The record of 
 the proceedings of a court of inquiry may be read in evidence before any court- 
 martial or military commission in any case not capital nor extending to the dis- 
 missal of an officer, and may also be read in evidence in any proceeding before 
 a coiu-t of inquiry or a military board: Provided, That such evidence may be 
 adduced by the defense in capital cases or cases extending to the dismissal of 
 an" officer. 
 
 "Art. 28. Resignation without acceptance does not release officer. — Any 
 officer who, having tendered his, resignation and prior to due notice of the 
 acceptance of the same, quits his post or proper duties without leave and with 
 intent to absent himself permanently therefrom shall be deemed a deserter. 
 
 "Art. 29. Enlistment without discharge. — ^Any soldier who, without having 
 first received a regular discharge, again enlists in the Army, or in the militia 
 when in the service of the United States, or in the Navy or Marine Corps of the 
 United States, or in any foreign army, shall be deemed to have deserted the 
 service of the United States; and, where the enlistment is in one of the forces 
 of the United States mentioned above, to have fraudulently enlisted therein. 
 [Note. — This article became effective on August 29, I9I6.] 
 
 "Art. 30. Closed sessions. — Whenever a general or special court-martial shall 
 sit in closed session, the judge advocate and the assistant judge advocate, if any, 
 shall withdraw; and when their legal advice or their assistance in referring to 
 the recorded evidence is required, it shall be obtained in open court and in the 
 presence of the accused and of his counsel if there be any. 
 
 "Art. 31. Order of voting. — Members of a general or special court-martial, in 
 giving their votes, shall begin with the junior in rank, 
 
 "Art. 32. Contempts. — ^A court-martial may punish at discretion, subject to 
 the limitations contained in Article fourteen, any person who uses any menacing 
 words, signs, or gestures in its presence, or who disturbs its proceedings by any 
 riot or disorder. 
 
 "Art. 33. Records — General courts-martial. — Each general court-martial 
 shall keep a separate record of its proceedings in the trial of each case brought 
 before it, and such record shall be authenticated by the signature of the presi- 
 dent and the judge advocate; but in case the record can not be authenticated 
 
314 MANUAL FOR COURTS-MARTIAL. 
 
 by the judge advocate, by reason of his death, disability, or absence, it shall be 
 signed by the president and an assistant judge advocate, if any; and if there 
 be no assistant judge advocate, or in case of his death, disability, or absence, 
 then by the president and one other member of the court. 
 
 "Art. 34. Records — Special and summary courts-martial. — Each special 
 court-martial and each summary court-martial shall keep a record of its proceed- 
 ings, separate for each case, which record shall contain such matter and be 
 authenticated in such manner as may be required by regulations which the 
 President may from time to time prescribe. 
 
 "Art. 35. Disposition of records — General courts-martial. — The judgeadvo- 
 cate of each general court-martial shall, with such expedition as circumstances 
 may permit, forward to the appointing authority or to his successor in com- 
 mand the original record of the proceedings of such court in the trial of each 
 case. All records of such proceedings shall, after having been finally acted 
 upon, be transmitted to the Judge Advocate General of the Army. 
 
 "Art. 36. Disposition of records — Special and summary courts-martial. — 
 After having been acted upon by the officer appointing the court, or by the officer 
 commanding for the time being, the record of each trial by special court-martial 
 and a report of each trial by summary court-martial shall be transmitted to 
 such general headquarters as the President may designate in regulations, there 
 to be filed in the office of .the judge advocate. When no longer of use, records 
 of special and summary courts-martial may be destroyed. 
 
 "Art. 37. Irregularities — Effect of. — The proceedings of a court-martial 
 shall not be held invalid, nor the findings or sentence disapproved, in any case 
 on the ground of improper admission or rejection of evidence or for any error 
 as to any matter of pleading or procedure unless in the opinion of the reviewing 
 or confirming authority, after an examination of the entire proceedings, it 
 shall appear that the error complained of has injuriously affected the substan- 
 tial rights of an accused: Provided, That the act or omission upon which the 
 accused has been tried constitutes an offense denounced and made punishable 
 by one or more of these articles: Provided further, That the omission of the 
 words 'hard labor' in any sentence of a court-martial adjudging imprisonment 
 or confinement shall not be construed as depriving the authorities executing 
 such sentence of imprisonment or confinement of the power to require hard 
 labor as a part of the punishment in any case where it is authorized by the 
 Executive order prescribing maximum punishments. 
 
 "Art. 38. President may prescribe rules. — The President may by regula- 
 tions, which he may modify from time to time, prescribe the procedure, includ- 
 ing modes of proof, in cases before courts-martial, courts of inquiry, military 
 commissions, and other military tribunals: Provided, That nothing contrary to 
 or inconsistent with these articles shall be so prescribed: Provided further. 
 That all rules made in pursuance of this article shall be laid before the Congress 
 annually. 
 
 "e. limitations upon prosecutions. 
 
 "Art. 39. As to time. — Except for desertion committed in time of war, or 
 for mutiny or murder, no person subject to military law shall be liable to be 
 tried or punished by a court-martial for any crime or ofEense committed more 
 than two years before the arraignment of such person : Provided, That for de- 
 sertion in time of peace or for any crime or offense punishable under articles 
 ninety-three and ninety-four of this code the period of limitations upon trial and 
 punishment by court-martial shall be three years: Provided further, That the 
 period of any absence of the accused from the jurisdiction of the United States, 
 
APPENDICES. 315 
 
 and also any period during which by reason of some manifest impediment the 
 accused shall not have been amenable to military justice, shall be excluded in 
 computing the aforesaid periods of limitation: An^ provided further, That this 
 article shall not have the effect to authorize the trial or punishment for any 
 crime or offense barred by the provisions of existing law. 
 
 "Art. 40. As to number. — No person shall be tried a second time for the same 
 offense. 
 
 "f. punishments. 
 
 "Art. 41. Certain kinds prohibited. — Punishment by flogging, or by brand- 
 ing, marking, or tattooing on the body is prohibited. 
 
 "Art. 42. Places of confinement — When lawful. — Except for desertion in 
 time of war, repeated desertion in time of peace, and mutiny, no person shall 
 under the sentence of a court-martial be punished by confinement in a peni- 
 tentiary unless an act or omission of which he is convicted is recognized as an 
 offense of a civil nature by some statute of the United States, or at the common 
 law as the same exists in the District of Columbia, or by way of commutation 
 of a death sentence, and unless, also, the period of confinement authorized and 
 adjudged by such court-martial is one year or more: Provided, That when a 
 sentence of confinement is adjudged by a court-martial upon convictioii of two 
 or more acts or omissions any one of which is punishable under these articles 
 by confinement in a penitentiary the entire sentence of confinement may be 
 executed in a penitentiary: Provided further. That penitentiary confinement 
 hereby authorized may be served in any penitentiary directly or indirectly 
 under the jurisdiction of the United States: Provided further. That persons 
 sentenced to dishonorable discharge and to confinement not in a penitentiary 
 shall be confined in the United States Disciplinary Barracks or elsewhere as 
 the Secretary* of War or the reviewing authority may direct, but not in a 
 penitentiary. 
 
 "Art. 43. Death sentence — When lawful. — No person shall, by general 
 court-martial, be convicted of an offense for which the death penalty is made 
 mandatory by law, nor sentenced to suffer death, except by the concurrence of 
 two-thirds of the members of said court-martial and for an offense in these 
 articles expressly made punishable by death. All other convictions and sen- 
 tences, whether by general or special court-martial, may be determined by a 
 majority of the members present. 
 
 "Art. 44. Cow.a.rdice; fraud — Accessory penalty. — When an officer is dis- 
 missed from the service for cowardice or fraud, the crime, punishment, name, 
 and place of abode of the delinquent shall be published in the newspapers in 
 and about the camp and in the State from which the offender came or where 
 he usually resides; and after such publication it shall be scandalous for an 
 officer to associate with him. 
 
 "Art. 45. Maximum limits. — Whenever the punishment for a crime or offense 
 made punishable by these articles is left to the* discretion of the court-martial, 
 the punishment shall not, in time of peace, exceed such limit or limits as the 
 President may from tinie to time prescribe. 
 
 "g. action by appointing or superior authority. 
 
 "Art. 46. Approval and execution of sentence. — No sentence of a court- 
 martial shall be carried into execution until the same shall have been approved 
 by the officer appointing the court or by the officer commanding for the time 
 being. 
 
316 MANUAL FOR COURTS-MARTIAL. 
 
 "Art. 47. Powers incident to power to approve. — The power to approve the 
 sentence of a court-martial shall be held to include: 
 
 "(a) The power to approve or disapprove a finding and to approve only so 
 much of a finding of guilty of a particular ofEense as involves a finding of 
 guilty of a lesser included ofEense when, in the opinion of the authority having 
 power to approve, the evidence of record requires a finding of only the lesser 
 degree of guilt ; and 
 
 "(b) The power to approve or disapprove the whole or any part of the 
 sentence. 
 
 [ Note. — This article became effective on August 29, 1916.] 
 
 "Art. 48. Confirmation. — When required — In addition to the approval re- 
 quired by article forty-six, confirmation by the President is required in the 
 following cases before the sentence of a court-martial is carried into execution, 
 namely : 
 
 "(a) Any sentence respecting a general officer; 
 
 "(b) Any sentence extending to the dismissal of an officer, except that in 
 time of war a sentence extending to the dismissal of an officer below the grade 
 of brigadier general may be carried into execution upon confirmation by the 
 commanding general of the Army in the field or by the commanding general of 
 the territorial department or division; 
 
 "(c) Any sentence extending to the suspension or dismissal of a cadet; and 
 
 "(d) Any sentence of death, except in the cases of persons convicted in time 
 of war of murder, rape, mutiny, desertion, or as spies; and in such excepted 
 cases a sentence of death may be carried into execution upon confirmation by 
 the commanding general of the Army in the field or by the commanding general 
 of the territorial department or division. 
 
 "When the authority competent to confirm the sentence has already acted as 
 the approving authority no additional confirmation by him is necessary. 
 
 "Art. 49. Powers incident to power to confirm. — The power to confirm the 
 sentence of a court-martial shall be held to include: . 
 
 "(a) The power to confirm or disapprove a finding, and to confirm so much 
 
 ' only of a finding of guilty of a particular offenje as involves a finding of guilty 
 
 of a lesser included offense when, in the opinion of the authority having power 
 
 to confirm, the evidence of record requires a finding of only the lesser degree 
 
 of guilt; and 
 
 "(b) The power to confirm or disapprove the whole or any part of the sen- 
 tence. 
 
 [ Note. — This article became effective on August 29, 1916.] 
 
 "Art. 50. Mitigation or remission of sentences. — The power to order the 
 execution of the sentence adjudged by a court-martial shall be held to include, 
 inter alia, the power to mitigate or remit the whole or any part of the sentence, 
 but no sentence of dismissal of an officer and no sentence of death shall be 
 mitigated or remitted by any authority inferior to the President. 
 
 "Any unexecuted porti6n of a sentence adjudged by a. court-martial may be 
 mitigated or remitted by the military authority competent to appoint, for the 
 command, exclusive of penitentiaries and the United States Disciplinary Bar- 
 racks, in which the person under sentence is held, a court of the kind that im- 
 ^ posed the sentence, and the same power may be exercised by superior military 
 authority; but no sentence extending to the dismissal of an officer or loss of 
 files, no sentence of death, and no sentence approved or confirmed by the Presi- 
 dent shall be remitted or mitigated by any other authority. 
 
 "The power of remission and mitigation shall extend to all uncollected for- 
 feitures adjudged by sentence of a court-martial. ■ 
 
APPENDICES. 317 
 
 "Art. 51. Suspension of sentences of dismissal or death. — The authority 
 competent to order the execution of a sentence of dismissal of an officer or a 
 sentence of death may suspend such sentence until the pleasure of the President 
 be known, and in case of such suspension a copy of the order of suspension, 
 together with a copy of the record of trial, shall immediately be transmitted 
 to the President. 
 
 "Art. 52. Suspension of sentence of dishonorable discharge. — The author- 
 ity competent to order the execution of a sentence, including dishonorable dis- 
 charge, may suspend the execution of the dishonorable discharge until the sol- 
 dier's release from confinement; but the order of suspension may be vacated 
 at any time and the execution of the dishonorable discharge directed by the 
 officer having general court-martial jurisdiction over the command, exclusive 
 of penitentiaries and the United States Disciplinary Barracks, in which the 
 soldier is held or by the Secretary of War. 
 
 "Art. 53. Suspension of sentences of forfeiture or confinement. — The au- 
 thority competent to order the execution of a sentence adjudged by a court- 
 martial may, if the sentence involve neither dismissal nor dishonorable dis- 
 charge, suspend the execution of the sentence in so far as it relates to the for- 
 feiture of pay or to confinement, or to both; and the person under sentence 
 may be restored to duty during the suspension of confinement. At any time 
 within one year after the date of the order of suspension such order may, for 
 sufficient cause, be vacated and the execution of the sentence directed by the 
 military authority competent to order the execution of like sentences in the 
 command, exclusive of penitentiaries and the United States Disciplinary Bar- 
 racks, to which the person under sentence belongs or in which he may be found; 
 but if the order of suspension be not vacated within one year after the date 
 thereof the suspended sentence shall be held to have been remitted. 
 
 "III. Punitive Articles, 
 "a. enlistment; muster; returns. 
 
 "Art. 54. Fraudulent enlistment. — Any person who shall procure himself 
 to be enlisted in the military service of the United States by means of willful 
 misrepresentation or concealment as to his qualifications for enlistment, and 
 shall receive pay or allowances under such enlistment, shall be punished as a, 
 court-martial may direct. 
 
 "Art. 55. Officer making unlawful enlistment. — Any officer who know- 
 ingly enlists or musters into the military service any person whose enlistment 
 or muster in is prohibited by law, regulations, or orders shall be dismissed 
 from the service or suffer such other punishment as a court-martial may direct. 
 
 "Art. 56. Muster rolls — False muster. — ^At every muster of a regiment, 
 troop, battery, or company the commanding officer thereof shall give to the 
 mustering officer certificates, signed by himself, stating how long absent officers 
 have been absent and the reasons of their absence. And tlpie commanding officer 
 of every troop, battery, or company shall give like certificates, stating how long 
 absent noncommissioned officers and private soldiers have been absent and 
 the reasons of their absence. Such reasons and time of absence shall be in- 
 serted in the muster rolls opposite the names of the respective absent officers 
 and soldiers, and the certificates, together with the muster rolls, shall be trans- 
 mitted by the mustering officer to the Department of War as speedily as the 
 distance of the place and muster will admit. Any officer who knowingly makes 
 a false muster of man or animal, or who signs or directs or allows the signing 
 
318 MANUAL FOR COURTS-MARTIAL. 
 
 of any muster roll knowing the same to contain a false muster or false state- 
 ment as to the absence or pay of an officer or soldier, or who wrongfully takes 
 money or other consideration on mustering in a regiment, company, or other 
 organization, or on signing muster rolls, or who knowingly musters as an officer 
 or soldier a person who is not such officer or soldier, shall be dismissed from 
 the service and suffer such other punishment as a court-martial may direct. 
 
 "Art. 57. False returns — Omission to render returns. — Every officer com- 
 manding a regiment, an independent troop, battery, or company, or a garrison, 
 shall, in the beginning of every month, transmit through the proper channels, 
 to the Department of War, an exact return of the same, specifying the names 
 of the officers then absent from their posts, with the reasons for and the time 
 of their absence. Every officer whose duty it is to render to the War Depart- 
 ment or other superior authority a return of the state of the troops under his 
 command, or of the arms, ammunitions, clothing, funds, or other property there- 
 unto belonging, who knowingly makes a false return thereof shall be dismissed 
 from the service and suffer such other punishment as a court-martial may 
 direct. And any officer who, through neglect or design, omits to render such 
 return shall be punished as a court-martial may direct. 
 
 "B. desertion; absence without leave. 
 
 "Art. 58. Desertion. — Any person subject to military law who deser-ts or 
 attempts to desert the service of the United States shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment as a court-martial 
 may direct, and, if the offense be committed at any other time, any punish- 
 ment, excepting death, that a court-martial may direct. 
 
 "Art. 59. Advising or aiding another to desert. — Any person subject to 
 military law who advises or persuades or knowingly assists another to desert 
 the service of the United States shall, if the offense be committed in time of 
 war, suffer death, or such other punishment as a court-martial may direct, and, 
 if the offense be committed at any other time, any punishment, excepting death, 
 that a court-martial may direct. 
 
 "Art. 60. Entertaining a deserter. — Any officer who, after having discovered 
 that a soldier in his command is a deserter from the military or naval service 
 or from the Marine Corps, retains such deserter in his command without in- 
 forming superior authority or the commander of the organization to which the 
 deserter belongs, shall be punished as a court-martial may direct. 
 
 "Art. 61. Absence without leave. — Any person subject to military law who 
 fails to repair at the fixed time to the properly appointed place of duty, or goes 
 from the same without proper leave, or absents himself from his command, 
 guard, quarters, station, or camp without proper leave, shall be punished as a 
 court-martial may direct. 
 
 "c. disrespect; insubordination; mutiny. 
 
 "Art. 62. Disrespect toward the president. Vice President, Congress, 
 Secretary of War, governors, legislatures. — Any officer who uses contemptu- 
 ous or disrespectful words against the President, Vice President, the Congress 
 of the United States, the Secretary of War, or the governor or legislature of any 
 State, Territory, or other possession of the United States in which he is 
 quartered shall be dismissed from the service or suffer such other punishment 
 as a court-martial may direct. Any other person subject to military law who 
 so offends shall be punished as a court-martial may direct. 
 
APPENDICES. 319 
 
 "Art. 63. Disrespect toward superior officer. — Any person subject to mili- 
 tary law who behaves himself with disrespect toward his superior officer shall 
 be punished as a court-martial may direct. 
 
 "Art. 64. Assaulting or willfully disobeying superior officer. — ^Any person 
 subject to military law who, on any pretense whatsoever, strikes his superior 
 officer or draws or lifts up any weapon or offers any violence against him, being 
 in the execution of his office, or willfully disobeys any lawful command of his 
 superior officer, shall suffer death or such other punishment as a court-martial 
 may direct. 
 
 "Art. 65. Insubordinate conduct toward noncommissioned officer. — Any 
 soldier who strikes or assaults, or who attempts or threatens to strike or 
 assault, or willfully disobeys the lawful order of a noncommissioned officer 
 while in the execution of his office, or uses threatening or insulting language, 
 or behaves in an insubordinate or disrespectful manner toward a noncommis- 
 sioned officer while in the execution of his office, shall be punished as a court- 
 martial may direct. 
 
 "Art. 66. Mutiny or sedition. — ^Any person subject to military law who 
 attempts to create or who begins, excites, causes, or joins in any mutiny or 
 sedition in any company, party, post, camp, detachment, guard, or other com- 
 mand shall suffer death or such other punishment as a court-martial may 
 direct. 
 
 "Art. 67. Failure to suppress mutiny or sedition. — Any officer or soldier 
 who, being present at any mutiny or sedition, does not use his utmost endeavor 
 to suppress the same, or knowing or having reason to believe that a mutiny 
 or sedition is to take place, does not without delay give information thereof 
 to his commanding officer shall suffer death or such other punishment as a 
 court-martial may direct. 
 
 "Art. 68. Quarrels; frays; disorders. — All officers and noncommissioned 
 officers have power to part and quell all quarrels, frays, and disorders among 
 persons subject to military law and to order officers who take part in the same 
 into arrest, and other persons subject to military law who take part in the 
 same into arrest or confinement, as circumstances may require, until their 
 proper superior officer is acquainted therewith. And whosoever, being so ordered, 
 refuses to obey such officer or noncommissioned officer or draws a weapon 
 upon or otherwise threatens or does violence to him shall be punished as a 
 court-martial may direct. 
 
 "d. arrest; confinement. 
 
 "Art. 69. Arrest or confinement of accused persons. — ^An offjcer charged 
 with crime or with a serious offense under these articles shall be placed in 
 arrest by the commanding officer, and in exceptional cases an officer so charged 
 may be placed in confinement by the same authority. A soldier charged with 
 crime or with a serious offense under these articles shall be placed in confine- 
 nient, and when charged with a minor offense he may be placed in arrest. 
 Any other person subject to military law charged with crime or with a serious 
 offense under these articles shall be placed in confinement or in arrest, as 
 circumstances may require; and when charged with a minor offense such 
 .person may be placed in arrest. Any person placed in arrest under the pro- 
 visions of this article shall thereby be restricted to his barracks, quarters, 
 or tent, unless such limits shall be enlarged by proper_ authority. Any officer 
 who breaks his arrest or who escapes from confinement before he is set at 
 liberty by proper authority shall be dismissed from the service or suffer such 
 other punishment as a court-martial may direct; and any other person subject 
 to military law who escapes from confinement or who breaks his arrest before 
 
320 MANUAL FOR COURTS-MARTIAL. 
 
 he is set at liberty by proper authority shall be punished as a court-martial 
 may direct. 
 
 "Art. 70. Investigation of and action upon charges. — No person put in 
 arrest shall be continued in cohfinement more than eight days, or until such 
 time as a court-martial can be assembled. When any person is put in arrest 
 for the purpose of trial, except at remote military posts or stations, the officer 
 by whose order he is arrested shall see that a copy of the charges on which 
 he is to be tiled is served upon him within eight days after his arrest, and that 
 he is brought to trial within ten days thereafter, unless the necessities of the 
 service prevent such trial; and then he shall be brought to trial within thirty 
 days after the expiration of said ten days. If a copy of the charges be not 
 served, or the arrested person be not brought to trial, as herein required, the 
 arrest shall cease. But persons released from arrest, under the provisions of 
 this article, may be tried, whenever the exigencies of the service shall permit, 
 within twelve months after such release from arrest : Provided, That in time of 
 : peace no person shall, against his objection, be brought to trial before a general 
 court-martial within a period of five days subsequent to the service of charges 
 upon him. 
 
 "Art. 71, Refusal to receive and keep prisoners. — No provost marshal or 
 commander of a, guard shall refuse to receive or keep any prisoner committed 
 to his charge by an officer belonging to the forces of the United States, provided , 
 the officer committing shall, at the time, deliver an account in writing, signed 
 by himself, of the crime or offense charged against the prisoner. Any officer 
 or soldier so refusing shall be punished as a court-martial may direct. 
 
 "Art. 72. Report of prisoners received. — Every commander of a guard to 
 whose charge a prisoner is committed shall, within twenty-four hours after such 
 confinement, or as soon as he is relieved from his guard, report in writing to the 
 commanding officer the name of such prisoner, the offense charged against 
 hirri, and the name of the officer committing him; and if he fails to make such 
 report he shall be punished as a court-martial may direct. 
 
 "Art. 73. Releasing prisoner without proper authority. — ^Any person sub- 
 ject to military law who, without proper authority, releases any prisoner duly 
 committed to his charge, or who through neglect or design suffers any prisoner 
 so committed to escape, shall be punished as a court-martial may direct. 
 
 "Art. 74. Delivery of offenders to civil authorities. — ^When any person 
 subject to military law, except one who is held by the military authorities to 
 answer, or who is awaiting trial or result of trial, or who is undergoing sentence 
 for a crime or offense punishable under these articles, is accused of a crime 
 or offense committed within the geographical limits of the States of the Union 
 and the District of Columbia, and punishable by the laws of the land, the 
 commanding officer is required, except in time of war, upon application duly 
 made, to use his utmost endeavor to deliver over such accused person to the 
 civil authorities, or to aid the officers of justice in apprehending and securing 
 him, in order that he may be brought to trial. Any commanding officer who 
 upon such application refuses or willfully neglects, except in time of war, to 
 deliver over such accused person to the civil authorities or to aid the officers 
 of justice in apprehending and securing him shall be dismissed from the service 
 or suffer such other punishment as a court-martial may direct. 
 
 "When, under the provisions of this article, delivery is made to the civil " 
 authorities of an offender undergoing sentence of a court-martial, such delivery, 
 if followed by conviction', shall be held to interrupt the execution of the sentence 
 of the court-martial, and the offender shall be returned to military custody, 
 after having answered to the civil authorities for his offense, for the comple- 
 tion of the said court-martial sentence. 
 
APPENDICES. 321 
 
 E. WAR OFFENSES. 
 
 "Art. 75. — Misbehavior before the enemy. — Any officer or soldier who mis- 
 behaves himself before the enemy, runs away, or shamefully abandons or 
 delivers up any fort, post, camp, guard, or other command which it is his 
 duty to defend, or speaks words inducing others to do the like, or casts away 
 his arms or aitnmunition, or quits his post or colors to plunder or pillage, or 
 by any means whatsoever occasions false alarms in camp, garrison, or quarters, 
 shall suffer death or such other punishment as a court-martial may direct. 
 
 "Art. 76. Subordinates compelling commander to surrender. — If any com- 
 mander of any garrison, fort, post, camp, guard, or other command is com- 
 pelled, by the officers or soldiers under his command, to give it up to the enemy 
 or to abandon it, the officers or soldiers so offending shall suffer death or such other 
 punishment as a court-martial may direct. 
 
 "Art. 77. Improper use of countersign. — ^Any person subject to military law 
 who makes known the parole or countersign to any person not entitled to re- 
 ceive it according to the rules and discipline of war, or gives a parole or 
 countersign different from that which he received, shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment as a court- 
 martial may direct. 
 
 "Art. 78. Forcing a safeguard. — ^Any person subject to military law who, 
 in time of war, forces a safeguard shall suffer death or such other pxinishment 
 as a coturt-martial may direct. 
 
 "Art. 79. Captured property to be secured for public service. — ^AU public 
 property taken from the enemy is the property of the United States and shall 
 be secured for the service of the United States, and any person subject to 
 military law who neglects to secure such property or is guilty of wrongful 
 appropriation thereof shall be punished as a court-martial may direct. 
 
 "Art. 80. Dealing in captured or abandoned property. — ^Any person subject 
 to military law who buys, sells, trades, or in any way deals in or disposes 
 of captured or abandoned property, whereby he' shall receive or expect any 
 profit, benefit, or advantage to himself or to any other person directly or in- 
 directly connected with himself, or who fails whenever such property comes 
 into his possession or custody or within his control to give notice thereof 
 to the proper authority and to turn over such property to the proper authority 
 without delay, shall, on conviction thereof, be punished by fine or imprison- 
 ment, or by such other, punishment as a court-martial, military commission, or 
 other military tribunal may adjudge, or by any or all of said penalties. 
 
 "Art. 81. Relieving, corresponding with, or aiding the enemy. — Whosoever 
 relieves the enemy with arms, ammunition, supplies, money, or other thing, of 
 knowingly harbors or protects or holds correspondence with or gives intelli- 
 gence to the enemy, either directly or indirectly, shall suffer death, or such other 
 punishment as a cotu't-martial or military commission may direct. 
 
 "Art. 82. Spies. — ^Any person who in time of war shall be found lurking or 
 acting as a spy in or about any of the fortifications, posts, quarters, or encamp- 
 ments of any of the armies of the United States, or elsewhere, shall be tried by 
 a general court-martial or by a military commission, and shall, on conviction thereof, 
 suffer death. 
 
 "f. miscellaneous crimes and offenses. 
 
 "Art. 83. Military property — ^Willful or negligent loss, damage, or 
 wrongful disposition. — Any person subject to military law who willfully, or 
 through neglect, suffers to be lost, spoiled, damaged, or wrongfully disposed of, 
 91487°— 17— 22 
 
322 MANUAL FOR COURTS-MARTIAL. 
 
 any military property belonging to the United States shall make good the loss 
 or damage and suffer such punishment as a court-martial may direct. 
 
 "Art. 84. Waste or unlawful disposition of military property issued to 
 
 SOLDIERS. — ^Any soldier who sells or wrongfully disposes of or willfully or 
 
 • through nelgect injures or loses any horse, arms, ammunition, accouterments, 
 
 equipment, clothing, or other property issued for use in the military service, shall 
 
 be punished as a court-martial may direct. 
 
 "Art. 85. Drunk on duty. — Any officer who is found drunk on duty shall, if 
 .the offense be committed in time of war, be dismissed from the service and 
 suffer such other punishment as a court-martial may direct; and if the offense 
 be committed in time of peace, he shall be punished as a court-martial may direqt . 
 Any person subject to military law, except an officer, who is found drunk on duty 
 shall be punished as a court-martial may direct. 
 
 "Art. 86. Misbehavior of sentinel. — Any sentinel who is found drunk or 
 sleeping upon his post, or who leaves it before he is regularly relieved, shall, if 
 the offense be committed in time of war, suffer death or such other punish- 
 ment as a court-martial may direct; and if the offense be committed in time 
 of peace, he shall suffer any punishment, except death, that a court-martial may 
 direct. 
 
 "Art. 87. Personal interest in sale of provisions. — ^Any officer command- 
 ing in any garrison, fort, barracks, camp, or other place where troops of the 
 United States may be serving who, for his private advantage, lays any duty or 
 imposition upon or is interested in the sale of any victuals or other neces- 
 saries of life brought into such garrison, fort, barracks, camp, or other place 
 for the use of the troops, shall be dismissed from the service and suffer such other 
 -punishment as a court-martial may direct. 
 
 "Art. 88. Intimidation of persons bringing provisions. — ^Any person subject 
 to military law who abuses, intimidates, does violence to, or wrongfvdly inter- 
 feres with any person bringing provisions, supplies, or other necessaries to the 
 camp, garrison, or quarters of the forces of the United States shall suffer such 
 punishment as a court-martial may direct. 
 
 "Art. 89. Good order to be maintained and wrongs redressed. — ^AU persons 
 subject to military law are to behave themselves orderly in quarters, garrison, 
 camp, and on the march; and any person subject to military law who com- 
 mits any waste or spoil, or willfully destroys any property whatsoever (unless 
 by order of his commanding officer), or commits any kind of depredation or 
 riot, shall be punished as a. court-martial may direct. Any commanding officer 
 who, upon complaint made to him, refuses or omits to see reparation made to 
 the party injured, in so far as the offender's pay shall go toward such reparation, 
 as provided for in article one hundred and five, shall be dismissed from the service, 
 or otherwise punished, as a court-martial may direct. , 
 
 "Art. 90. Provoking speeches or gestures. — No person subject to military 
 law shall use any reproachful or provoking speeches or gestures to another; 
 and any person subject to military law who offends against the provisions of this 
 article shall be punished as a court-martial may direct. 
 
 "Art. 91. Duelling. — Any. person subject to military law who fights or pro- 
 motes or is concerned in or connives at fighting a duel, or who having knowl- 
 edge of a challenge sent or about to be sent fails to report the fact promptly to 
 the proper authority shall, if an officer, be dismissed from the service or suffer 
 such other punishment as a court-martial may direct; and if any other person 
 subject to military law, shall suffer such punishment as a court-martial may 
 direct. 
 
 "Art. 92. Murder — Rape. — ^Any person subject to military law who commits 
 murder or rape shall suffer death or imprisonment for life, as a court-martial 
 
APPENDICES. 323 
 
 may direct; but no person shall be tried by court-martial for murder or rape com- 
 mitted within the geographical limits of the States of the Union and the District 
 of Columbia in time of peace. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 93. Various crimes. — Any person subject to military law who commits 
 mansalughter, mayhem, arson, burglary, robbery, larceny, embezzlement, per- 
 jury, assault with intent to commit any felony, or assault with intent to do 
 bodily harm, shall be punished as a court-martial may direct. 
 
 "Art. 94. Frauds against the Government. — Any person subject to military 
 law who makes or causes to be made fmy claim against the United States or any 
 officer thereof, knowing such claim to be false or fraudulent ; or 
 
 "Who presents or causes to be presented to any person in the civil or 
 military service thereof, for approval or payment, any claim against the United 
 States, or any officer thereof, knowing such claim to be false or fraudulent; or 
 
 "Who enters into any agreement or conspiracy to defraud the United 
 States Ijy obtaining, or aiding others to obtain, the allowance or payment of any 
 false or fraudulent claim; or 
 
 "Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or against any officer 
 thereof, makes or uses, or procures, or advises the making or use of, any 
 writing or other paper knowing the same to contain any false or fraudulent 
 statements; or 
 
 "Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or any officer 
 thereof, makes, or procures, or advises the making of, any oath to any fact or 
 to any writing or other paper knowing such oath to be false ; or 
 
 "Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or any officer thereof, 
 forges or counterfeits, or procures, or advises the forging or counterfeiting 
 of any signature upon any writing or other paper, or uses, or procures, 
 or advises the use of any such signature, knowing the same to be forged 
 or counterfeited; or 
 
 "Who, having charge, possession, custody, or control of any money or other 
 property of the United States, furnished or intended for the military service thereof, 
 knowingly delivers, or causes to bfe delivered, to any person having authority to 
 receive the same, any amount thereof less than that for which he receives a certi- 
 ficate or receipt; or 
 
 "Who, being authorized to make or deliver any paper certifying the receipt 
 of any property of the United States furnished or intended for the military 
 service thereof, makes or delivers to any person such writing, without having 
 full knowledge of the truth of the statements therein contained and with intent 
 to defraud the United States ; or 
 
 "Who steals, embezzles, knowingly and willfully misappropriates, applies to 
 his own use or benefit, or wrongfully or knowingly sells or disposes of any 
 ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, 
 or other property of the United States furnished or intended for the military service 
 thereof; or 
 
 "W]io knowingly purchases or receives in pledge for any obligation or in- 
 debtedness from any soldier, officer, or other person who is a part, of or 
 employed in said forces or service, any ordnance, arms, equipment, ammuni- 
 tion, clothing, subsistence stores, or other property of the United States, such 
 soldier, officer, or other person not having lawful right to sell or pledge the 
 same; 
 
324 MANUAL FOR COURTS-MARTIAL. 
 
 "Shall, on conviction thereof, be punished by fine or imprisonment, or by 
 such other punishment as a court-martial may adjudge, or by any or all of 
 said penalties. And if any person, being guilty of any of the offenses aforesaid 
 while in the military service of the United States, receives his discharge or is dis- 
 missed from the service, he shall continue to be liable to be arrested and held for 
 trial and sentence by a court-martial in the same manner and to the same extent 
 as if he had not received such discharge nor been dismissed. 
 
 "Art. 95. Conduct unbecoming an officer and gentleman. — Any officer or 
 cadet who is convicted of conduct unbecoming an officer and a gentleman shall 
 be dismissed from the service. 
 
 "Art. 96. General article. — Though not. mentioned in these articles, all dis- 
 orders and neglects to the prejudice of good order and military discipline, all con- 
 duct of a nature to bring discredit upon the military service, and all crimes 
 or offenses not capital, of which persons subject to military law may be guilty, 
 shall be taken cognizance of by a general or special or summary court-martial, 
 according to the nature and degree of the offense, and punished at the dis- 
 cretion of such court. • 
 
 "iv. courts of inquiry. 
 
 "Art. 97. When and by whom ordered.— A court of inquiry to examine into 
 the nature of any transaction of or accusation or imputation against any officer 
 or soldier may be ordered by the President or by any commanding officer; but a 
 court of inquiry shall not be ordered by any commanding officer except upon the 
 request of the officer or soldier whose conduct is to be inquired into. 
 
 "Art. 98. Composition. — ^A court of inquiry shall consist of three or more 
 officers. For each court of inquiry the authority appointing the court shall 
 appoint a recorder. 
 
 "Art. 99. Challenges. — Members of a court of inquiry may be challenged by 
 the party whose conduct is to be inquired into, but only for cause stated to the 
 court. The court shall determine the relevancy and validity of any challenge, 
 and shall not receive a challenge to more than one member at a time. The 
 party whose conduct is being inquired into shall have the right to be repre- 
 sented before- the court by counsel of his own selection, if such counsel be 
 reasonably available. 
 
 "Art. 100. Oath of members and recorders. — The recorder of a court of 
 inquiry shall administer to the members the following oath: 'You, A. B., do 
 swear (or affirm) that you will well and truly examine and inquire, according to 
 the evidence, into the matter now before you, without partiality, favor, 
 affection, prejudice, or hope of reward. So help you God.' After which the 
 president of the court shall administer to the recorder the following oath: 
 'You, A. B., do swear (or affirm) that you will, according to your best abilities, 
 accurately and impartially record the proceedings of the court and the evidence 
 to be given in the case in hearing. So help you God.' 
 
 "In case of affirmation the closing sentence of adjuration will be omitted. 
 
 "Art. lOL Powers; procedure. — A court of inquiry and the recorder thereof 
 shall have the same power to summon and examine witnesses as is given to 
 courts-martial and the judge advocate thereof. Such witnesses shall take the 
 same oath or affirmation that is taken by witnesses before courts-martial. A re- 
 porter or an interpreter for a court of inquiry shall, before entering upon his duties, 
 take the oath or affirmation required of a reporter or an interpreter for 
 a court-martial. The party whose conduct is being inquired into or his counsel, 
 if any, shall be permitted to examine and cross-examine witnesses so as fully to 
 in ^estigate the circumstances in question. 
 
APPENDICES. 325 
 
 "Art. 102. Opinion on mi^rits of case. — A court of inquiry shall not give an 
 opinion on the merits of the case inquired into unless specially ordered to do so. 
 
 "Art. 103. Record of proceedings — How authenticated. — Each court of 
 inquiry shall keep a record of its proceedings, which shall be authenticated by 
 the signature of the president and the recorder thereof, and be forwarded to the 
 convening authority. In case the record can not be authenticated by the recorder, 
 by reason of his death, disability, or absence, it shall be signed by the president 
 and by one other member of the court. 
 
 "V. miscellaneous provisions. 
 
 "Art. 104. Disciplinary powers of commanding officers. — Under such regu- 
 lations as the President may prescribe, and which he may from time to time revoke, 
 alter, or add to, the commanding officer of any detachment, company, or higher 
 command may, for minor offenses not denied by the accused, impose disciplinary 
 punishments upon persons of his commaiid without the intervention of a court- 
 martial, unless the accused demands trial by court-martial. 
 
 "The disciplinary punishments authorized by this article may include 
 admonition, reprimand, withholding of privileges, extra fatigue, and restriction 
 to certain specified limits, but shall not include forfeiture of pay or confine- 
 ment under guard. A person punished under authority of this article, who 
 deems his punishment unjust or disproportionate to the offense may, through 
 the proper channel, appeal to the next superior authority, but may in the 
 meantime be required to undergo the punishment adjudged. The commanding 
 officer who imposes the punishment, his successor in command, and superior 
 authority shall have power to mitigate or remit any unexecuted portion of 
 the punishment. The imposition and enforcement of disciplinary punishment 
 under authority of this article for any act or omission shall not be a bar to 
 trial by court-martial for a crime or offense growing out of the same act or 
 omission; but the fact that a disciplinary punishment has been enforced may 
 be shown by the accused upon trial, and when so shown shall be considered in 
 determining the measure of punishment to be adjudged in the event of a finding 
 of guilty. 
 
 "Art. 105. Injuries to person of property — Redress of. — Whenever com- 
 plaint is made to any commanding olficsr that damage has been done to the 
 property of any person or that his property has been wrongfully taken by per- 
 sons subject to military law, such complaint shall be investigated by a board 
 consisting of any number of officers from one to three, which board shall be 
 convened by the commanding officer and shall have, for the purpose of such 
 investigation, power to summon witnesses and examine them upon oath or 
 affirmation, to receive depositions or other documentary evidence, and to assess 
 the damages sustained against the responsible parties. The assessment of 
 damages made by such board shall be subject to the approval of the command- 
 ing officer, and in the amount approved by him shall be stopped against the pay 
 of the offenders. And the order of .such commanding officer directing stoppages 
 herein authorized shall be conclusive on any disbursing officer for the payment 
 by him to the injured parties of the stoppages so ordered. 
 
 "Where the offenders can not be ascertained, but the organizalSon or detach- 
 ment to which they belong is known, stoppages to the amount of damages 
 inflicted may be made and assessed in such proportion as may be deemed just upon 
 the individual members thereof who are shown to have been present with such 
 organization or detachment at the time the damages complained of were 
 inflicted as determined by the approved findings of the board. 
 
326 MANUAL FOR COURTS-MARTIAL. 
 
 "Art. 106. Arrest of deserters by civil officTals. — It shall be lawful for any 
 civil officer having authority under the laws of the United States, or of any State, 
 Territory, District, or possession of the United States, to arrest offenders, 
 summarily to arrest a deserter from the military service of the United States 
 and deliver him into the custody of the military authorities of the United 
 States. 
 
 "Art. 107. Soldiers to make good time lost. — Every soldier who in an exist- 
 ing or subsequent enlistment deserts the service of the United States or without 
 proper authority absents himself from his organization, station, or duty for 
 more than one day, or who is confined for more than one day under sentence, or 
 while awaiting trial and disposition of his case, if the trial results in conviction, 
 or through the intemperate use of drugs or alcoholic liquor, or through dis- 
 ease or injury the result of his own misconduct, renders himself unable for 
 more than one day to perform duty, shall be liable to serve, after his return to 
 a full-duty status, for such period as shall, with the time he may have 
 served prior to such desertion, unauthorized absence, confinement, or inability 
 to perform duty, amount to the full term of that part of his enlistment period which 
 he is required to serve with his organization before being furloughed to the Army 
 reserve. 
 
 "Art. 108. Soldiers — Separation from the service. — No enlisted man, law- 
 fully inducted into the military service of the United States, shall be discharged 
 from said service without a certificate of discharge, signed by a field officer of the 
 regiment or other organization to which the enlisted man belongs or by the com- 
 manding officer when no such field officer is present; and no enlisted man 
 shall be discharged from said service before his term of service has expired, except 
 by order of the President, the Secretary of War, the commanding officer of a depart- 
 ment, or by sentence of a general court-martial. 
 
 "Art. 109. Oath of enlistment. — ^At the time of his enlistment every soldier 
 
 shall take the following oath or affirmation: 'I, , do solemnly swear (or 
 
 affirm) that I will bear true faith and allegiance to the United States of 
 America; that I will serve them honestly and faithfully against all their enemies 
 whomsoever; and that I will obey the orders of the President of the United 
 States and the orders of the officers appointed over me, according to the Rules 
 and Articles of War.' This oath or affirmation may be taken before any officer. 
 
 "Art. 110. Certain articles to be read .and explained. — Articles one, two, 
 and twenty-nine, fifty-four to ninety-six, inclusive, and one hundred and four 
 to one hundred and nine, inclusive, shall be read and explained to every soldier 
 at the time of his enlistment or muster in, or within six days thereafter, and shall 
 be read and explained once every six months to the soldiers of every garrison, regi- 
 ment, or company in the service of the United States. 
 
 "Art. 111. Copy of record of trial. — Every person tried by a general court- 
 martial shall, on demand therefor, made by himself of by any person in his 
 behalf, be entitled to a copy of the record of the trial. 
 
 "Art. 112. Effects of deceased persons. — Disposition of — In case of the 
 death of any person subject to military law, the commanding officer of the 
 place or command will permit the legal representative or widow of the de- 
 ceased, if present, to take possession of all his effects then in camp or quarters, 
 and if no legal representative or widow be present, the commanding officer shall 
 direct a summary court to secure all such effects; and said summary court 
 shall have authority to convert such effects into cash, by public or private sale, 
 not earlier than thirty days after the death of the deceased, and to collect and 
 receive any debts due decedent's estate by local debtors; and as soon as practi- 
 cable after converting such effects into cash said summary court shall deposit 
 
APPENDICES. 327 
 
 with the proper officer, to be designated in regulations, any cash belonging to 
 decedent's estate, and shall transmit a receipt for such deposit, accompanied by 
 any will or other papers of value belonging to the deceased, an inventory of the 
 effects secured by said summary court, and a full account of his transactions to 
 the War Department for transmission to the Auditor for the War Department 
 for action as authorized by law in the settlement of the accounts of deceased 
 officers or enlisted men- of the Army; but if in the meantime the legal repre- 
 sentative, or widow, shall present himself or herself to take possession of 
 decedent's estate, the said . summary court shall turn over to him or her all 
 effects not sold and cash belonging to said estate, together with an inventory and 
 account, and make to the War Department a full report of his transactions. 
 
 "The provisions of this article shall be applicable to inmates of the United States 
 Soldiers' Home who die in any United States military hospital outside of the District 
 of Columbia where sent from the home for treatment. 
 
 "Art. 113. Inquests. — When at any post, fort, camp, or other place garrisoned 
 by the military forces of the United States and under the exclusive jurisdiction 
 of the United States, any person shall have been found dead under circumstances 
 which appear to require investigation, the commanding officer will designate 
 and direct a summary court-martial to investigate the circumstances attending 
 the death; and, for this purpose, such summary court-martial shall have power 
 to summon witnesses and examine them upon oath or affirmation. He shall 
 promptly transmit to the post or other commander a report of his investigation 
 and of his findings as to the cause of the death. 
 
 "Art. 114. Authority to administer oaths. — ^Any judge advocate or acting 
 judge advocate, the president of a general or special court-martial, any sum- 
 mary court-martial, the judge advocate or any assistant judge advocate of a 
 general or special court-martial, the president or the recorder of a court of 
 inquiry or of a military board, any officer designated to take a deposition, any 
 officer detailed to conduct an investigation, and the adjutant of any command 
 shall have power to administer oaths for the purposes of the administration of 
 military justice and for other purposes of military administration; and in for- 
 eign places where the Army may be serving shall have the general powers of a 
 notary public or of a consul of the United States in the administration of oaths, 
 the execution and acknowledgment of legal instruments, the attestation of docu- 
 ments, and all other forms of notarial acts to be executed by persons subject to 
 military law. 
 
 "Art. 115. Appointment of reporters and interpreters. — ^Under such regul- 
 tions as the Secretary of War may from time to time prescribe, the president of 
 a court-martial or military commission, or a court of inquiry shall have power 
 to appoint a reporter, who shall record the proceedings of and testimony taken 
 before such court or commission and may set down the same, in the first in- 
 stance, in shorthand. Under like regulations the president of a court-martial 
 or military commission, or court of inquiry, or a summary court, may appoint an 
 interpreter, who shall interpret for the court or commission. 
 
 "Art. 116. Powers of assistant judge advocates. — ^An assistant judge advo- 
 cate of a general court-martial shall be competent to perform any duty devolved 
 by law, regulation, or the custom of the service upon the judge advocate of the 
 court. 
 
 "Art. 117. Removal of civil suits. — ^When any civil or criminal prosecu- 
 tion is commenced in any court of a State against any officer, soldier, or other 
 person in the miUtary service of the United States on account of any act done 
 under color of his office or status, or in respect to which he claims any right, 
 title, or authority under any law of the United States respecting the military 
 
328 MANUAL FOR COURTS-MARTIAL. 
 
 forces thereof, or under the law of war, such suit or prosecution may at any 
 time before the trial or final hearing thereof be removed for trial into the 
 district court of the United States in the district where the same is pending in 
 the manner prescribed in section thirty-three of the Act entitled 'An Act to 
 codify, revise, and amend the laws relating to the judiciary,' approved March 
 three, nineteen hundred and eleven, and the cause shall thereupon be entered 
 on the docket of said district court and shall proceed therein as if the cause had 
 been originally commenced in said district court and the same proceedings had 
 been taken in such suit or prosecution in said district court as shall have been had 
 therein in said State court prior to its removal, and said district court shall have 
 full power to hear and determine said cause. 
 
 "Art. 118. Officers, separation from service. — No officer shall be discharged 
 or dismissed from the service except by order of the President or by sentence of 
 a general court-martial; and in time of peace no officer shall be dismissed except 
 in pursuance of the sentence of a court-martial or in mitigation thereof; but the 
 President may at any time drop from the rolls of the Army any officer who 
 has been absent from duty three months without leave or who has been absent 
 in confinement in a prison or penitentiary for three months after final conviction 
 by a court of competent jurisdiction. 
 
 "Art. 119. Rank and precedence among Regulars, Militia, and Volun- 
 teers. — That in time of war or public danger, when two or more officers of the 
 same grade are on duty in the same field, department, or command, or of 
 organizations thereof, the President may assign the command of the forces of 
 such field, department, or command, or of any organization thereof, without 
 regard to seniority of rank in the same grade. In the absence of such assign- 
 ment by the President, officers of the same grade shall rank and have precedence 
 in the following order, without regard to date of rank or comission as between 
 officers of different classes, namely: First, officers of the Regular Army 
 and officers of the Marine Corps detached for service with the Army by order of 
 the President; second, officers of forces drafted or called into the service of the 
 United States; and, third, officers of the volunteer forces: Provided, That 
 officers of the Regular Arniy holding commissions in forces drafted or called 
 into the service of the United States or in the volunteer forces shall rank and 
 have* precedence under said commissions as if they were commissions in the 
 Regular Army; the rank of officers of the Regular Army under commissions in 
 the National Guard as such shall not, for the purposes of this article, be held to 
 antedate the acceptance of such officers into ^e service of the United States under 
 said commissions. 
 
 "Art. 120. Command when different corps or commands happen to join. — 
 When different corps or commands of the military forces of the United States 
 happen to joint or do duty together the officer highest in rank of the line of the 
 Regular Army, Marine Corps, forces drafted or called into the service of the 
 United States, or Volimteers, there on duty, shall, subject to the provisions of 
 the last preceding article, command the whole and give orders for what is needful 
 in the service, unless otherwise directed by the President. 
 
 "Art. 121. Complaints of wrongs. — ^Any officer or soldier who believes himself 
 wronged by his comtrtanding officer, and, upon due application to such com- 
 mander, is refused redress, may complain to the general commanding in the 
 locality where the officer against whom the complaint is made is stationed. The 
 general shall examine into said complaint and take proper measures for redress- 
 ing the wrong complained of; and he shall, as soon as possible, transmit to the 
 Department of War a true statement of such complaint, with the proceedings 
 had thereon." 
 
APPENDICES. 329 
 
 Sec. 4. The provisions of section three of this Act shall take effect and be in 
 force on and after the first day of March, nineteen hundred and seventeen: 
 Provided, That articles four, thirteen, fourteen, fifteen, twenty-nine, forty-seven, 
 forty-nine, and ninety-two shall take effect immediately upon the approval of 
 this Act. 
 
 Sec. 5. That all offenses committed and all penalties, forfeitvires, fines, or lia- 
 bilities incurred prior to the taking effect of this Act, under any law embraced 
 in or modified, changed, or repealed by this Act, may l>e prosecuted, punished, 
 and enforced in the same manner and with the same effect as if this Act had not 
 been passed. 
 
 Sec. 6. All laws and parts of laws in so far as they are inconsistent with this 
 Act are hereby repealed. 
 
 Act of August 29, 1916 (39 Stat., 650-670.) 
 
APPENDIX 3. 
 
 (front.] 
 Charge sheet. No. in summary court record - 
 
 (Place) (Date) 
 
 (Surname.) (Christian name.) (Rank and organization.) 
 
 Date current enlistment, '■ — . Rate of pay, ■ 
 
 Previous service, 
 
 (Give dates, with character given on each discharge.) 
 
 _ J. j Arrest: . No. of previous convictions, 
 
 / Confinement: . 
 
 Witnesses : 
 
 Charge — : Violation of the article of war. 
 
 Specification — : In that, etc. ' 
 
 Form No. 594, A. G. O. 
 
 Pleas: . „ ■ f Arrest: 
 
 Days m ■ 
 
 Findings: . ( Confinement: 
 
 Sentence: . 
 
 Maximum punishment : — 
 
 Note. — The above spaces are intended only for use for record purposes at the 
 headquarters of the officer appointing the special or general court-martial, and 
 it is not intended that they shall be filled in by summary courts, trial judge advo- 
 cates, etc. 
 
 INSTRUCTIONS. 
 
 (M. C. M., pars. 75, 76, 79, 306.) 
 
 1. Submission of charges. — All charges for trial by court-martial will be pre- 
 pared in triplicate, using the prescribed charge sheet as a first sheet and using 
 such additional sheets of ordinary paper as are required. They will be accom- 
 panied — 
 
 (a) Except when trial is to be had by summary court, by a brief statement 
 of the substance of all material testimony expected from each material witness, 
 both those for the prosecution and those for the defense, together with all 
 available and necessary information as to any other actual or probable testi- 
 mony or evidence in the case; and 
 
 (b) In the case of a soldier, by properly authenticated evidence of con- 
 victions, if any, of an offense or offenses committed by him during his current 
 enlistment and within one year next pteceding the date of the alleged com- 
 mission by him of any offense set forth in the charges. 
 
 They will be forwarded by the officer preferring them to the officer imme- 
 diately exercising summary court-martial jurisdiction over the command to 
 
 333 
 
M: I 
 
 334 MANliffl: FOR COURTS-MARTIAL. 
 
 which the accused belongs, and will by him and by each superic* commander 
 into whose hands they may come either be referred to a court-martial within 
 his jurisdiction for trial, forwarded to the next superior authority exercising 
 court-martial jurisdiction over the command to which the accused belongs or 
 pertains, or otherwise disposed of as circumstances may app,ear to require. 
 
 2. Investigation of charges. — If the officer immediately exercising summary 
 court-martial jurisdiction over the command to which the accused belongs or 
 pertains decides to forward the charges to superior authority, he will, before 
 so doing, either carefully investigate them himself or will cause an officer other 
 than the officer preferring the charges carefully to investigate them and to 
 report to him, orally or otherwise, the result of such investigation. The officer 
 investigating the charges will afford to the accused an opportunity to make 
 any statement, offer any evidence, or present any matter in extenuation that he 
 may desire to have considered in connection with the accusations against him. 
 If the accused desires to submit nothing, the indorsement will so state. In 
 his indorsement forwarding the charges to superior authority he will include: 
 
 (a) The name of the officer who investigated the charges ; 
 
 (b) The opinion of both such officers and himself as to whether the several 
 charges can be sustained; 
 
 (c) The substance of such material statement, if any, as the accused may 
 have voluntarily made in connection with the case during the investigation 
 thereof; 
 
 (d) A summary of the extenuating circumstances, if any, connected with 
 the case; and 
 
 (e) His recommendation of action to be taken. 
 
 3. Disposition of copies of charges. — (a) When trial is had by summary 
 court the charges will be completed as the record of trial, a copy thereof 
 will be completed as a copy of the summary court record for the company or 
 other commander, and the other copy will, with the least practicable delay 
 after action has been taken on the sentence, be completed and transmitted 
 as the required report of trial to the officer exercising general court-martial 
 jurisdiction over the command, there to be filed in the office of the judge 
 advocate for a period of two years, at the end of which time it may be 
 destroyed ; and 
 
 (b) When trial is to be had by special or general court-martial the charges 
 and one copy thereof will be referred to the trial judge advocate,' the copy 
 to be furnished by him to the accused or his counsel, and the other copy 
 will be used for record purposes in the office of the officer appointing the trial 
 court, the top fold of the copy of the charge sheet, in case of trial by general 
 court-martial, being detached at the proper time and forwarded with the record 
 of trial to the Judge Advocate General of the Army. 
 
 4. Disposition of evidence of previous convictions. — (a) The evidence of a 
 previous conviction referred to a summary court or to the judge advocate of a 
 special court will, after trial, be returned by him to the appointing authority 
 and will, after action by the latter on the case, be returned to the company 
 or detachment to which it pertains ; 
 
 (b) The evidence of a previous conviction referred to the judge advocate 
 of a general court-martial will, if a company record, after trial be returned 
 by him direct to the company or detachment to which it pertains, and a cer- 
 tified copy thereof will be attached to the record of trial. 
 
 • 
 Note. — -This form supersedes the blank form for record of trial by summary' 
 court (Form No. 99, A. G. O.), the blank form for report of trial by summary 
 court (Form No. 59, A. G. O.), and the blank form for statement of service 
 (Form No. 15, A. G. O.). 
 
•i 
 
 ■im