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THE BACKGROUND OF THEUNIFORM CODE OF NILITARY
JUSTICE
PROP~RTY OF U. S. ARMYTHl: JUDGE ADVOCATE GENERAL'S SCHOOl:LIBRARY
PREPARED ATTHE JUDGE ADVOCATE GENERAL'S SCHOOL
U. S. 1l,RNY
MAY 2 0 1970
Table of Contents
lntroduction Early History The Articles of War of 1775 The Articles of War of 1776
The Amendment of 1786 The Articles of War of 1806 The Articles of War of 1874
Principal Changes The Articles of War of 193,.6
Principal Changes The Articles of vlar of 1920
Principal Changes The Articles of War of 1948 (The Elston Act)
Principal Changes The Uniform Code of Military Justice
The General Purpose of the Code Principal Provisions to Ins\lr8 Uniformity Principal Provisions to ~~inate Command Influence Amendments The Codification Proposed Amendments to the Code
Annex A A sectional analysis of the UCHJ.
An.'"lex B A copy of the "speaker letter" transmitting the Omnibus Bill from DOD to the Speaker of the House of Representatives. The inclosures thereto contain the statutory la.."'lguage o£ the proposed changes and a sectional analysis of such changes.
Annex C A copy of a letter from DOD to the Cpairman of the House Armed
'Services Committee exprossing oPPo$ition to the f~e+icun Legion Bill.
Annex D Acomparative table of the proposed amendments to the UCMJ contained in the Omnibus Bill and the American Legion Bill with the present articles of the Code.
Annex E An analysis of the present system of non-judicial punishment.
Annex F An analysis of the present summary court-martial system.
Annex G An analysis of the present special court-martial system.
1 2 2 2 2 2 :3 :3 3 3 4 4 6 6 9
11 11 12 13 1.3 13
The Background of the Uniform Code of Military Justice
Introduction
The purpose of this paper is to provide a panoramic view of the development of military justice from its infancy ill this country into the system which we know today. What follows is not designed as a detailed technical analysis. Rather, it is hoped the reader will see that the system of military justice first established in this country, which was modeled for the most part on the pre-Revolutionary War system of Engle.nd based on the old Roman Code, has evolved from a system identified largely as the disciplinary tool of the conunander into the elaborate judicial process that it has become today.
'rhe development of the military justice system within the Army has been chosen because the Articles for the Government of the Navy, even until replaced by the Uniform Code of Milit~ry Justice, were largely (at least in theory and sUbstance) the British Naval Articles of 1749. The disciplinary laws for the Coast Guard also developed only slightly from their beginning, principally for the reason that the most serious offenses of Coast Guard personnel during time of peace were tried by the Federal courts. It should be observed here that the aeme .Articles of War applicable to the Army were made applicable to the Air Force when it was created in 1947.
The Articles of War of 1916, 1920, and 1948 were each implemented by an Executive Order of the President promulgating a NanuaJ. for CourtsMartial. These were, respectively, the Hanua1s for Courts-Martial of 1917, 1921, and 1949. In addition, the l-ianual for Courts-l-iartial, 1921, implementing the Articles of War of 1920, was re't'1I'itten and promulgated as the Manual for Courts-l-1artial, 1928. Numerous change'S to this latter volume were made by other Executive Orders J &.'1d ir~ 1943 a corrected edition was promulgated. The Unifonn Code of Military Justice has been implemented by the President With the Manual for Courts-Martial, 1951. Each of these Manuals for Courts-Martial principally ser-lTed as a vehicle for the President to prescribe procedure and modes of proof for courtsmartial. In any event, all references in this paper, unless otherwise specifically mentioned, are to the statutory law, i.e." the Articles of War or the Uniform Code of Military Justice.
Although not within the scope of this paper, it should be men.. tioned that the develC'pment of military justice w:l.thin the Army was paralleled by a strikingly similar development in England. For eXSlllple, the British" also in 1951, superimposed a new civilisn tribunal over their courts-martiaJ. system to review the findings of co~ts-martial.
On the other hand, some changes have been made in EngJ.end and the United States which are quite dissimilar. For example, the British have p1aced The Judge Advocate General and hi s reviewing functi ons completely outside the armed services; in the United States, the different systems of military justice in the services have been unified in the Uniform Code of M1litaryJq.stice, whi:j.e th~ British have attempted no such unification.
Early History
On 5 April 1775, the Provisional Congress of Ma.ssachusetts Bay adopted the first written code of military justice in the Colonies. 'rhis Code was known as the Massachusetts Articles. Later, the Colonies of Connecticut, Rhode Island, New Hampshire, Pennsylvania" and South Carolina adopted similar type articles to be observed by their respective colonial troops.
The Articles of War of 1775
The first military justice code applicable to all of the Colonies was adopted on 30 June 1175 by the Second Continental Congress in Philadelphia. This enactment was known as the American Articles of War of 1715. These articles were la.rgely copied from the British Code of 1765 and the Massachusetts Articles. The former, according to John Adams" were a literal translation of the Articles of War of the Roman Empire. It is interesting to observe that George "'e.ahington served on the committee which prepared the Articles of War of 1775.
The Articles of War of 1716
Approximately one year later, on 14 June 1776" the Continental Congress appointed a committee, which included John Adams and Thomas Je:fferson, to revise the Articles of War of 1175. r-Tew articJ.es were prepared by this committee and were adopted on 20 September 1176 by Congress as "The Articles of \olar of 1716. n This Code of 1776 was merely an enlargement, with modifications, of the Articles of War of 1175. It continued in force even after adoption of the Constitution, although there were a considerable number of amendments. The most important of these amendments was enacted on 31 May 1786 and remedied difficulties long present in the prior articles concerning the number of persons required as members of general courts-martial and the forerunner of ,;m.at is today the special court-martial. Prior to the amendment of 1786, a general court-martial was required to have 13 members and a special. court-martial 5 members. Due to the small number of Army personnel in those early days, it was impossible for many detachments to muster enough o:fficers to const1tute either a special or a general court-martial. The amen<1ment of 1786 fixed the minimum number of members of a genereJ. eourt-ID$rti~ at five and the mininmm number of mem'bers of a special court-martia:). at three. These minimum figures have pers:t,sted even until today.
The .Articles of war of 1806
After the adoption of the Constitution, in an enactment of 29 September 1739,the First Congress expressly recognized the then existing Articles of ·War of 1776, as amended"and provided that they would apply to the existing Army establishment. On 10 April 1806" however" the Congress enacted the "Articles of War qf 1806" II mainly for the reason that the change trOIll a confederatiop to a pons1J:ltutional type of government made de~~rabl~ a rather compl,ete revisj,on of the A,rtlc.).e$ of
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~lar. These articles remained in effect for some 70 years with but few changes until the advent of the Civil War~ After the start of the Civil War, alterations and additions to the Articles of War of 1806 were numerous. The changes principally related to the trial and review of cases during the Civil War.
The Articles of War of 1874
Thereafter, on 22 June 1874, the Articles of 'tVar were completely revised and ra-enacted as the Articles of War of 1874. This code, althOUgh amended a number of tine s, remained in effect until the enactment of the Articles of War of 1916. Because they established concepts which we find in the military justice system of today, some of' the amendments to the Code of 1874 should be briefly observed. For example, it was during this period that the penalty of stoppage was first done away with and punishment left to the discretion of the court. Moreover, the punishments of flogging, branding, marldng, and tatooing were first prohibited. Here 'We also find for the first time a separate statute of' limitations on the prosecution of desertion in time of peace. Another milestone in the developnent of military law during this period 'WaS the authorization by Congress for the President to provide the maximum limits for pUllislnBents during time of peace.
The Articles of War of 1916
Shortly after the turn of the century, it became apparent that the Code of 1874, as amended, was very unscientific in its arrangement of articles a:.ld contained man~r provisions either wholly obsolete or not well suited to conditions existing in the service at that time • For example, Article 59 of the 1874 Code made it man<latory to turn an offi cer or soldier accused of em offense against the person or property of any citizen of the United States to the civil authorities,but only "upon application duly made by or in behalf of the party injured." This article thus ignored the more modern doctrine that all persons are entitled to equal protection of the laws and should be punished not at the insistence of an individual but at the insistence of officials representing the general public. In any event, on 29 August 1916, the Congress enacted the Articles of War of 1916. The Articles of War of 1916 were a complete revision of the old Code of' 1874. Some of the more important changes effected are as follows:.
1. The jurisdiction of the general court-martial was made concurrent with that of the military commission and other -war tribunals for trial of offenses against the law of war. The jurisdiction of general courts-martial. was also extended to include the capital offenses of murder and rape when committed in time of peace in places outside the United States.
2. Provision was made for the detail of one or more assistant trial judge advocates for each general court""IllSZ'tial Wi.th the power to act·:for the judge advocate, which resulted in increasing the capactty of t~se courts in the disposition of' cases.
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3. The provision of the Code of 1874 making regular officers incompetent to sit on courts-martial for the trial of officers and soldiers of other components was abolished and all distinction between components as far as eligibility to si-i;; on courts-martial was removed.
4. The power to prescrtbe procedure and modes of proof before courts-martial and other military tribunals was expressly delegated to the ITesident. This same power had, however, heretofore been exercised by the President to some extent on the theory that the same was included among his inherent constitutional powers.
5. The statute of limitations was completely revised and modernized.
6. Reviewing and confirming authorities vlere., for the first time, given the power to approve a lesser included offense.
7. The taking of depositions for use in trial by court -martial was modified substantially.
8. The required number of members voting for conviction of an offense carrying the death penalty was raised from a bare majority to a two-thirds majority.
The Articles of War of 1920
During the early part of 1919, several proposed revisions of the Articles of Har of 1916 were introduced in both Houses. of Congress. These bills were the results of several studies made of the entire courts-martial system with a view to its revision a.nd improvement in the light and experience of World War I. One study 'Was made b~r the War Department through a special board consisting of several general officers, a committee of civilian lawyers appointed bJr the American Bar Association, and representatives of the Office of The JUdge Advocate General. This board not only made a study of the American Articles of 'tlar but of the systems of military justice existing in the British, French, and BelMan armies. All of' these various studies were submitted to a subcommittee of the Senate Committee on Military Affairs. In addition, this subcommittee held extensive hearings on this subject. At the conclusion of these hearings, and upon invitation of the SUbcommittee, a bill providing for a revision of the Articles of War of 19l6 was prepared by The Judge Advocate General and submitted to the subcommittee. This same bill, with a few minor changes, was enacted into law as Chapter II of the A:rm:y Reorganization Act on 4 June 1920 and is usuaJ.ly referred to as the Articles of War of 1920.
The sa.Uent features of the Articles of War of 1920 were as follows:
1. Enlisted men we:re placed on a par 'With officers with the right to prefer char@1's against anyone in the military serviQe.
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.)(0 2. The preliminary investigation of charges was made more strict than it had theretofore been. In particular" it was required that full opportunity be given accused at the preliminary ;l.nvestigation to cross-examine witnesses against him, it available.
* 3. It became mandatory for the convening author!ty to refer charges to his Staff Judge Advocate for pretrial advice.
4. Unnecessary delay on the part of an officer investigating charges or carrying a case to final conclusion was made an offense punishable by t~ial by court-martial.
5. Resort to arrest instead of confinement pending trial in cases of enlisted men charged with minor offellses was prescribed rather than merely being authorized. Thisplaced enlisted men upon the same footing as officers in respect to such offenses.
* 6. Resort to the use of nonjudicial punishment rather than trial by court-martial was encouraged.
7. The appointment of defense counsel in the same manner as trial counsel was made mandatory. This placed the defense on the same footing as the prosecution but did not prevent the accused from being represented by his own counsel if he desired.
J. A law member vm.s provided fo~ every general court-martial.
* 9. The referral of every record of trial by' general courtmartial by the conveninG authority to the Staff Judge Advocate for a post trial reviev1 prior to action thereon was made mandatory.
10. The President was authorized to establish the maximum limits of punishment during time of war as well as in time of peace.
* ll. 'rhe reconsideratton by a court of an acquittal or a finding of not guilty of any specification was prohibited.
* 12. The adjudication 1)y a court at proceedings in revision of a sentence more severe than that preViously a.djudged (unless a mandatory sentence was involved) was prohibited.
13. Provision for r,hearings l-ere made.
14. The number of votes required to impose certain sentences was required as follows:
a. Unanimous vote for a ~ath sentence.
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b. A vote of three-fourths of the members for sentence to life or confinement for more than 10 years ..
c. A vote of two-thirds of the members for all other sentences.
15. Provision was made for a. system of appellate review for all general court-martial ca.ses.
16. Provision was made for greater flexibility in the suspension of sentences.
17. A peremptory challenge for ea.ch side was first authorized (except that the law member could only be challenged for cause ).
* Those features marked with an asteri13k were, for the most part, accomplished by general orders and changes to the Manual for Courts-Martial, 1917, in mid-year 1919.
Minor amendments were made to the Articles of War of 1920 in 1937, 1942, and 1947.
The Articles of War of 1948
As a result of World War II, "Then large numbers of civilians "lere drafted into the armed forces, especially into the Army, a loud public clamor was made for a revision of the systems of military justice which existed during vTor1d Har II in the Army and in the Naval service. By and large, these objections were aimed a.t eliminating command influence and so-called "druInhead justice." As a result, there'were a large number of investigations and reports by committees of civilians sponsored by both the Army and the navy. Proposed articles of '\-Tar and proposed articles for the government of the Navy were drafted. The Elston Bill, applicable only to the Army, was offered as an amendraent to the National Defense Act of 1947 end was enacted by both Houses of Congress. The Articles of War of 1920, as amended by the Elston Act, were later made applicable to the Air Force. This bill. substantially modified the exist:l.ng Articles of 'Har of 1920 and resulted in what is usually lmown as Articles of War of 1948. Some of the principal changes effected by the Elston Act are as follows:
1. For the first time since enactment of the original .American Articles of' vTar of 1775, warrant officers and enlisted men 'Were authorized to serve as members of general and special courts-martial.
2. The former optional provision, under the Articles of War of 1920, that the law merl1ber be a judge advocate officer was made a. mandatory jurisdictional requirement.
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3. While not an absolute jurisdictional requirement, it was required that the trial judge advocate and defense counsel of each general court-martial be a member of The Judge Advocate General's Corps if available. In every case where the trial judge advocate was a member of The Judge Advocate GeneralIs Corps (or otherwise a lawyer) it was a jurisdictional requirement that the defense counsel also be so qualified.
4. The former practice of allowing an officer to act in conflicting capacities at different times in the same case as investigating officer, trial judge advocate, defense counsel, member of the court, or staff judge advocate was prohibited. 1m exception was made, however, Whereby the accused could utilize the services of an officer as his defense counsel who had previously acted in some other capacity in the case if expressly requested.
5. For the first time a general court-martial 'Was given plenary power to adjudge any legal punishment.
6. Officers were for the first time made amenable to trial by special courts-mar-'~ial.
7. A new form of punishment, known as a bad conduct discharge, ws authorized for the Army courts-martial system (the Navy had been authorized to imJ;lose a bad conduct discharge as punishment for some time). Special courts-martial were authorized to impose this type of punitive discharge. The imposition of the bad conduct discharge by a special courtmartial ws, howeYer, subject to approval by the officer having general court-martial jurisdiction over t1:le command and other appellate authorities.
8. It was provided that noncommissioned officers of the first two grades could not be tried by a summary court-martial unless they specifically consented to such trial in writing. other noncommissioned officers could be tried by summary court-martial either if they did not object, or if a special COllrt-martial convening authority directed such trial.
9. The practice during 't-lorld ifar II of confining American soldiers with enemy prisoners was prohibited.
10. The right of the accused to have the same facilities as the trial judge advocate for securing the attendance of 'Witnesses and documents was expressly stated.
li. The compulsory self-incrimination protections of" the Articles of War of 1920 'Were considerably strengthened. The purpose in this action by the Congress was to prevent zealous inV'estigators from obtaining confessions by use of the $o"ca.lled "third degree."
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12. The taking and use of depositions was liberalized.
13. The authority of the law member was greatly expanded. For example, except for challenges, motions t'Clr'e. finding of not guilty, and questions of an accused's sanity, the rulings of the law member on all interlocutory questions were final.
14. It was provided, for the first time, that the law member must, in open court, advise the other members of the court of the quantum and nature of evidence required to sustain findings of guilty.
15. The former provision that the President must present his regulations prescribing the procedure and modes of proof in courts-martial before the Congress annually was repealed.
16. Wartime absence 'Without leave was added to the list of offenses for which there was no statute of limite;tion8.
17. The Judge Advoca.te General was, for the first time, g:lvan complete control over the assignment of officers of The Judee Advocate General's Corps. Moreover, the direct communication between Staff Judge Advocates and convening authorities was insured by a specific provision to that effect.
13. The Judic:i.al Council w.s first created.
19. The powers of confirmation granted to the President, the Secretary, The JUdge Advocate General, The Judicial. Council, and Boards of Review 'fere greatly expanded to include powers to vacate, commute, or reduce to legal limts and to restore all ;I.'ig..l-).t8, privileges, and property affected by any finding or sentence disapproved or vacS"ted.
20. Due to certain technical amendments to Article of Hal' 50, the former practice of dishonorably discharging an accused prior to review by a Board of Review was prohibited.
21. For the first time in the hi stor"J of military law, appellate reviewing authorities (Boards of Review and The Judicial Council) were expressly given broad powers to weigh the evidence, j 1.ldge the credibility of witnesses, and determine controverted questions of fact.
22. The power· possessed by wartim.e commanding generals in the field ·bo order a sentence of death executed was withdrawn. This was done, apparently, because Congress felt that only the Presj.dent (or his delegate) should exercise this power.
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23. Under new Article of War 52, rehearings were specifically authorized whenever a sentence was disapproved or vacated. This eliminated the result under the Articles of' War of 1920 that a rehearing was not authori zed where the sentence had previously been approved and ordered executed by the convening authorities.
24. A specific provision providing for the application of a new trial involving offenses committed during World War II was enacted. The purpose here ws to provide a means of correcting possible injustices resulting during the hectic days of World ~"ar II.
25. The former mandatory punishment of an officer convicted of being drunl' on duty by a dismissal was amended to provide that any person found drunk on duty could be punished at the d;J.scretion of the court-martial.
26. Convening authorities and conunanding officers were expressly forbidden from censoring, reprimanding, or admonishing a, court-martial or any of its members with respect to its findings or sentences, or the exercise of any judicial responsibility.
27. The article proscribing murder was amended to provide for two degrees of murder. Under former practice there was only one degree of murder With a mandatory punishment of life imprisonment or death. Under the 1948 Articles of War, death or life imprisonment was mandatory for premeditated murder, but punishment to a lesser degree waS discretionary with the court in the ease of unpremeditated murder.
28. The technical distinction between larceny and embezzlement was abolished.
29. Commanding officers t autbor!ty to impose nonjudicial punishment against officers was greatly expanded. For example, where fonnerly a forfeiture of pay of an officer could be imposed only in time of war of grave emergency, the 1948 Articles allowed imposition of this punishment at any time.
The Uniform Code of Unitary Just! ce
After the end of World War II, the movement to substantially revise the Articles of Har mainta.ined momentum even after the rather large sc::e.le amendments to the Articles of War of 1920 in 1948 by the Elston Ac·c. Even before the Elston Act, many pwople were of the opinion that there should be one system of military justice for our a:rmed forces rather than the separate systems of the .Army and the Navy. Vlith the creat:ton of the A:l.r Force in 1947, the specter of
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another system of military jus"liice added impetus to the movement toward one system of military justice. It should be noted that" although apparently unnoticed by many people, there VIas really a. fourth system of military justice in existence--namely for the Coast Guard in time of peace. In any event" Secretary of Defense Forrestal appointed a committee to draft the Uniform Code of Military Justice designed to govern all branches of the service.
This committee, known as the ForX"estal Committee" had as executive se~retary Mr. Felix E. Larkin, then the Assistant General Counsel of the Department of Defense. Mr. Larkin headed a working staff of 15 lawyers composed of officers and representatives of the Army" JlTavy" I·farine Corps, and Coast Guard, that also included five civilian lawyers. Unfortunately the service representatives were" for some reason greatly restrained by the ctvilian members of this committee. The resultant impact of this circumstance is not subject to definite assessment. The possibility remains" however, that some of our present day problems could have been avoided were this not the case. In any event, an intensive study was made of:
1. The law and practices of the several branches of the service;
2. The complaints made against the structure and operation of military tribunals;
3. The explanations and answers of representatives of the services to these complaints;
4. The various suggestions made by organi zations and individuals for modification or reform and the arguments of the services as to the practicability of each; and
5. Some of the provisions of foreign milltary estabJ.ishments and their application.
The Forrestal Committee endeavored to fashion a system of military justice tha.t would be uniform in terms and in operation to all the services and, at the same time, would provtde full protection of the rights of persons subject to the Code without undue interference with appropriate militar,y discipline and the exercise of necessary military functions. To do this, it was felt that there must be" on the one hand, a complete repUdiation of any system of military justice conceived of as only an instrumentality of commend. On the other hand" the objective
. negatived a system designed to be administered as the criminal law is administered in a civilian criminal court. Thus, the Uniform Code of Military Justice represents a compromise between the desire to eliminate coIll1l1atld influence and fully protect accused persons and the desire to not unduly stifle the maintenance of discipline, as well as law and order, 'tdthin the armed forces. Possibly the biggest factor in drafting the Uniform Code of Military Justice was the same factor which so strongly influenced. the Elston Act in 1948-..namely, the el!mina.tion of command influence.
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The purpose of' the Uniform Code of' Military Justice was to establish one system for the administration of military justice unifonnly applicable in all of its parts to the Army, the Navy, the Air Force, and the Coast Guard in time of' war and peace. It has application to both the substantiva and the 'procedural law governing mili tary justic~ and its administration in all of the armed forces. It superseded the Articles of War applicable to the Army and the Air Force, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard. It is the sole statutory basis today in all of our armed forces for:
1. The imposition of limited disciplinary penalties for minor offenses without judicial action;
2. The establishment of pretrial and trial procedure;
3. The creation and constitution of three classes of' courts-martial; namely, general, special, and summary courts-martial;
4. The eligibility of members of each of the courts and the qualifications of its officers and counsel;
5. The review of findings and sentence and the creation and constitution of the reviewing tribunals; and
6. The listing and definition of offenses, redrafted and rephrased in modern leg!slattve language.
Among the provisions included in the Uniform Code of Military Justice to obtain uniformity are the following:
1. Offenses made punishable by the code are identical for all the armed forces;
2. One system of courts with the same lim!ts of jurisdiction of each court is established for all the armed forces;
3. The procedure for general courts-martial is identical as to institution of charges, pretrial investigation, action by the convening authority, review by the Board of' Review, and review by the Court of Military Appeals in all the armed forces;
4. The rules of procedure at the trial, including modes of proof, ar~ equally applicable to all the armed forces;
5. The Judge Advocates General are required to make uniform rules of procedure for Boards of Review;
6. The required ~ifications for members of the court, law officer, end, cO\U1sel are identical for all of the armed forces;
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7. The Court of Military Appeals, lhich finaJ.ly decides questions of law, is the court of last resort for each of the armed forces and also acts with The JUdge Advocates General as an advisory body with a view to securing uniformity in policy and in sentences and in discovering and remedying defects in the system and its administration.
Among the provisions designed to eliminate command influence, and thus to insure a fair trial, are the following:
1. A pretrial investigation is provided, at which the accused is entitled to be present with counsel to crossexamine available witnesses against him and to present evidence in hi s own behalf.
2. A prohibition against referring any oharge for trial 'Which does not state an offense or is not shown to be supported by suffi cient evidence.
3. A mandatory provision for a competent, legally trained counsel at the trial for both the prosecution and the defense.
4. A prohiQition against compelling self-incrimination.
5. Provision for equal process to accused, as well as the prosecution, for obtaining witnesses and depositions.
6.' A provision allowing only the accused to use depositions in a capital case.
7. A provision giving. an accused enlisted man the privilege of having enlisted men as members of the court trYing his case.
8. A provision whereby all voting on challenges, findings, and sentences is by secret ballot of the members of the court.
9. A provision requiring the law officer to instruct the court ooncerning the elements of the offense, presumption of innocence, and the burden of proof. These instructions are all to be matters of record and to be made either in open court or in writing.
10. A provision for an automatic review of the trial record for errors of law and of fact by a Board of Review witb the right of the accused to be represented by legally competent counsel.
11. A prohibition against ~eceiving pleas of guilty in capitaJ. cases
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12. A provision for the review of the record for errors of law by the Court of l~litary Appeals. This review is automatic in cases where the sentence is death or involves a general or flag rank officer. A review may be requested by the accused in certain cases.
To assist in understanding and evaluating the impact of the Uniform Code of Military Justice, a section by section analysis thereof is set out in Annex A. This sectional ana.lysis will be of assistance when considering specific articles of the Code. The more important changes made by the Uniform Code of Military Justice are noted in the sectional analysis. In addition, cross-reference to propos~d changes (see Proposed Amendments to the Uniform Code of Military Justice, post) are noted where appropriate.
Amendments to the Uniform Code of' Military Justice
Sections 11 and 12 of Article 2 were amended in 1956 so that civilians in Guam would not be subject to the Uniform Code.
The Codification of the Uniform Code of Military Justice
On 10 August 1956, Congress passed an act which revised, codified, and re-enacted Title 10, United States Code. Sections 801 through 940 thereof comprise the Uniform Code of Military Justice. ·Cross-reference from an art:lcle in the Uniform Code of Military Justice to the proper section in Title 10, United States Code may be accomplished by adding 800 to the Uniform Code of ~tllitary Justice article. For example: Article 63, Uniform Code of ~tllitary Justice, is 10 U.S.C. 863.
The Congressional intent in the codification was 'merely to restate existing law without substantive change. In restating the law, however, many changes in language were made. Therefore, the proper section of' Title 10, United States Code, should always be consulted when the exact language of an article· of the Uniform Code of Military Justice is desired.
Proposed Amendments to the Uniform Code of Military Justice
Two bills were introduced in the 86th Congress to amend the Uniform Code of Military Justice. These bills are usually referred to as the Omnibus Bill (H.R. 3387) and as the American Legion Bill (H.R. 3455).
The Omnibus Bill is sponsored by the Department of Defense and flows directly f'romthe work of' a group Imow as the Code Committee. The Code Committee consists of The Judge Advocates General of the Armed Forces, the General Counsel of the Treasury Department on behalf of the Coast Guard, and the three jUdges of the United States Court of Milit~ry Appeals. The Code Committee is reqUired to meet annually; one of t ts duties being to :;reqolIlU1end amendments to the Uniform Code of' Milttary J\lsti ce • With a few m:i,nor exceptions,
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the proposed amendments to the Uniform Code of ~tllitary Justice, contained in the Omnibus Bill, have been endorsed by the Code Committee every year since its first meeting. A copy of the letter of transmittal from the Department of Defense to the Speaker of the House is set out in Annex B. The inclosures to this letter contain the statutory language of the proposed amendments and a sectional analysis of each proposed change.
The American Legion Bill is, of course, sponsored by the American Legion. Some of the proposed changes in this bill are quite similar to those in the Omnibus Bill. Others, however, propose drastic changes not contemplated by the Code Committee. A copy of the letter from the Department of Defense to the Chairman of the House of Representatives Committee on Armed Services expressing opposition to the American Legion Bill is set out in Annex C.
A comparative table of the present articles ot the Uniform Code of Military Justice, the proposed Omnibus amendments, and the proposed American Legion amendments is set out in Annex D.
An analysis of the present system of nonjudicial punislunent under the Uniform Code of Military Justice is contained in Annex E.
An analysis of the present sun:una.ry court-martial system under the Uniform Code of lfdlitary Justice is contained in Annex F.
An analysis of the present special court-martial system unq,er the Uniform Code of Military Justice is contained in Annex G.
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--
ANNEX A
SECT~ON BY SECTION ANALYSIS OF THE ·UNIFORM dODE OF MILITARY JUSTICE
Article 1. Definitions.
This article contains the definitions of certain words and phrases used in the UQiform Code of Military Justice.
!Jhe Omnibus Bill would add a dafinition of 1:h e words "convening authority." The American Legion Bill would amend section lO and define "law officer" in such a. manner as to require a law officer on the special court-martial.J
Article 2. Persons subject to the Code.
This article contains a. list, generally, of all persons in all categories who are SUbject to court ..mar·l:iial jurisdiction under the UCMJ. Certain specific situations are, however, covered in Articles 3 and 4. Here, for the first time I members of the Coast Guard are made subject to a system of military justice as members of ml armed force in both war and peace. Form.erly, Coast Guard persormel when sel;'Ving with the Navy were subject to the Articles for Government of th e Navy, and when not serving with the Navy such personnel were subject to the Disciplinary Laws of the Coast Guard for minor offenses and to trial in Federal courts for more serious offenses.
Military j~sdiction over persons serving a sentence by a courtmartial was somewhat restricted. Under the former Army provision, any person serving a court-marti.a! sentence was subject to contillliing mili tary jurisdiction whether in the hands of the military or civilian authorities. Under the Uniform Code of Military Justice, jurisdiction over persons serving a sen'~ence imposed by court-martiaJ. is limited to those :Persons in the custody of the armed forces. See in thi. s connection Article 58, which authorizes the placing ot persons convicted by court-martial in the custody of' civil authorities to serve their sentence regardless of the nature of the offense or the length of the sentence. Although this effected a change in the lm-1, the practiclU result is substantially the same under the Uniform CoCl,e ot: Military Justice as unde~ the former Articles of Wa~ because AR 633-5 restricts the categories of persons who may be placed in the custody of c1vil authorities to complete their sentence by court-martial.
Section 11 of Article 2 purports to malee "all :persons serving with, employed by, or accompanying the armed forces" ~thout the continentlU United States and without certain territories subject to the UCl-1J and trilU by courts-martial. 'rhe United States Supreme Court has held, however, that dependents accompanying our armed forces overseas during time of peace are no-& subject to trial by court-martilU on a capital. charge. Thus, subsection 11 is, with respect to such dependents, an ineffeQtive attempt 'Qy Congress to coufer jur:l.scU.ction for trial by court-marti~ o~ a cap~tf4 chaxge. :aecause p~ the complex!ty of the problems invQlvep., one ~annot ~t:l.c:tpa*e wit1'l qe,rtainty wllether
Article 2(11) is effective to confer court-martial jurisdiction over civilian dependents overseas in time of peace for non-capital offenses.
ArUcle J. ~.s~n to try certain personnel.
Section (a) represents an attempt by Congress to provide courtmartial jurisdiction over certain discharged members even after their discharge, ~his provision has been held unconstitutional by the United States Supreme Court in the case of ~ v. ~ed States.
Section (b) provides for continuing court-martial jurisdiction over pe;rosons who fraudulently obtain their discharge from the service. It conforms to prior Army practice.
Section (c) is designed to assure that a deserter who enlists and is discharged from a second term of service is still amenable to trial by court-martial for the desertion in his first term of service. This section was prompted by a Federal case, the effect of which was to bar such prosecution.
Article 4. Dismissed officer's right to trial by court-martial.
This article provides that any officer dismissed by order of the President, by applying for trial by court-martial stating under oath that he has been wrongfully dismissed, must be tried by a general court-martial convened by the President as soon as practicable. If the President does not convene such a general court-martial, or if such court-martial is convened but does not adjudge dismissal or death (as approved by appellate authorities), the Secretary shall substitute an administrative discharge for the dismissal. This effects a change from the prior statute applicable to the Army and the Air Force. Under the :prior statute, the President's order of dismissal 'Was considered void if a general court-martial was not convened upon application, or if the court was convened but did not award dismissal or death as p1,lllisbment. This change was mad.e to avoid the rather substantial doubt of the constitutionality of the former provision.
Article 5, Territorial apPlicability of the Code.
This article simply provides that the Uniform Code of 1-111itary Justice is applicable in all places without limitation.
Article 6. Judge advoca.tes and legal officers.
Sections (a) and (b) correspond gener~y with prior Army practice. Section (a), however, differs somewhat from the language of the prior Army provision in order to mah:e clear that The Judge Advocate General does not actUally issue orders as~igning judge advocates but that appropriate personnel divisions (i.e., The Adjutapt General) will issue such orders in accordance with the recommendations of The Judge Advocate Gener$l. Section (a) also plac~s all j1.lQ.ge advoc;ates under the control of The Judge Advocate Gene+,a1..
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/Jhe American Legion Bill in amending section (a) would require that all JUdge advocates, except when serving on a board of re ... view, would be rated for efficiency by The Judge Advocate General.J
Section (b) not only authorizes direct commwlication within military justice channels but also enhances t 11e position of Staff Judge Advocates by requiring direct communication between such officers and thier com" manding officers"
Section (c) is in accord with prior Army practice and is designed to secure review of a case by an impartial Staff Judge Advocate"
Article 7. Apprehensio?"
This article should be read in conjunction with Articles 8 through14, Which pro~~de for the apprehension and restraint of a. person subject to the Code.
Sections (a) and (b) are new. Section (a) defines apprehension, and section (b) sets forth the conditions under which one may apprehend.
Section (c) provides, simply" that certain persons have authority to quell all quarrels, frays, a nd disorders among persons subject to the Code and to apprehend them.
Article 8. Apprehension of deserter!:!._
This article provides that certain civil authorities, may apprehend deserters and return them to military control. It is an expansion of the prior Army provision to cover deserters from all of the armed forces.
Article 9. ]mposition Of restraint.
'rMa article, generally spealdng, effects little change from the prior Army proVision. Hmrever, section (a) clarifies the differences of interpretation ot the terms "arrest It and "confinement II under prior practices of the Army and the Navy. Section (c) effected a change for the Army to the extent that civilisns are now assimilated to officers rather than to enlisted persons.
This article, in addition to defining the terms "arrest" and "confinement, II sets out, in variouS sections, the conditions whi ch must be met before persons may be placed in either status of restraint.
Article 10. Restraint of persons charged with offenses. • A .'. '. .
, This article provides the basis for, and degree of, restraint of persons subject to the COde. It SUbstantially confonns to the.prior Army provision. The provision prov;4ding for notification of the aC'" cused is new.
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Article 11. Reports andreceiying of prisoners.
Section (a) provides that provost marsha.ls (and their counterparts in other services) must receive and l~eep any person subject to the Code when an officer presents the provost marshaJ. with proper commitment papers.
Section (b) provides for a report to the commanding officer of the prisoner within 24 hours after commitment.
There is no substantial change in this article from prior Army provisions although some of the language was changed to conform 'With Navy terminology.
Article 12. Confinement with enemy prison~rs prohi.?~.
This article makes no substantial change from the prior Army provision. The language has been changed somewhat, hmlever, to avoid the possible interpretation of Article of War 16, which v10uld prohibit the confinement of members of t21e Army within the same bUilding with prisoners of 'WaX', The presept article is intended to permit confinement of members of the armed forces with enemy prisoners within the same confinement facility but requires segregation within the confinement facility.
LThe Omnibus Bill would amend this' article so as to clearly allow the confinement of members of the armed forces in United States confinement facilities with members .of the armed forces of friendly nationsJ .
Article 13. Punishplent. pro~bited before trial.
This article conforms s1.tbstantially to the prior Army provision. The language has been altered from its predecessor, Article of War 16, principally to clarify the relation of this article to the effective date of sentences. Article of liar 16 had been interpreted to prohibit the enforcement of any sentence until after final approval even though the accused was in confinement after the sentence was adjudged. Article 13, therefore, while prohibiting punishment of prisoners before tria.:). generaJ..ly,does now allow the forfeiture of a prisoner's pay between the date the sentence is adjudged and the date the sentence is finally approved in certain circumstances.
The latter claUSe of Article 13 makes it clear that a person being held for trial may be subjected to minor punishment for infractions of discipline during pretrial confinement.
Article 14. Delivery of offenderS to c1vil authorities. , ( ;
Section (a) provides that the Secretary of a Department may deliver a member accused of an oftense against civil authOrities over to the civil authorities for trial. This sect~qn cOnform~ to pr!or Navy practice anet -represe;t1:fs a marl~ed cbange from th~ prior Ar1Iry provision.
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Under the prior Army provision (Article of vlar 7!~), a commanding officer was required to deliver a member of his command to the civil authorities upon request, except during time of war. The Navy practice rather than the Army practice was adopted in the Uniform Code of Military Justice because Article of War 74 was enacted at a time wl1en the Army did not have authority to try its personnel for ~ivil offenses in time of peace.
/fhe American Legion Bill will amend section (a) so as to prohibit the trial by court-martial of members of the armed forces for any civil type offense except in time of war if the civil authorities having jurisdiction made a request for delivery prior to arraignment of the accuse4~
Section (b) provides that delivery of a member of t..'1e armed forces to civil authorities pursuant to section (a) will interrupt the execution of any court-martial sentence and that the civil authorities must, on request, retl,lrn the member to mi;L;i..tary control. Section (b) did not effect a change for the Army.
Article 15. Commapding officer~s.nonjudic~al punishment.
Article 15 is the statutory basis for all nonjudicial punishment_ This article was drastically rewritten as it passed through the Congress. The House cut do'Wll the punisbments authorized by the Defense Department's draft, and the Senate further cut down the House authorizations •. Article 15 as enacted reflects the Senate draft, the result of which is, in many cases, lessening of tl1e ptUlishments authorized under the prior Army provision, namely, Article of War 104.
ffhe Omnibus Bill would amend section (a) to allow a general co~c-martial authority to impose a forfeiture of one-half of an officer's pay a month for a period of two months. It would also allow a cOllllJ;landing officer in the grade of' major or above to impose upon enlisted personnel a forfeiture of' onehalf of one month's pay and confinement for seven consecutive days~
Section (b) recognizes, and allow's for, the differences in the prior practice of the Army and Navy concerning nonjudicial punishment. The Army, under Article of War 104, allaved an election between nonjudicial punishment and trial by court-martial. Tbe Navy, under the Articles f'or the Government of the Navy, allowed no election on the theory that a commanding officer's punishment relates entirely to discipline and not to a crime. Furthermore, in many cases in the Navy, if an election were allowed, it would result in granting a subordinate offi.cer to pass on the judgment of his superior. Section (b), therefore, grants to the Secretary of each Department the right to place limitiiltions on the kind and amount of punishment authorized, the persons who may exercise authority, and the aJ1lplicability of ArtiCle 15 to persons who demand trial by court-martial. The practical :result herEil is that the Army and the Navy are allowed to follow their di;f'ferel}t prior practices.
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Section (c) permits "officers in chargell to impose punishment forminor offenses as authorized by regulations issued by the Secretaries ofthe Departments. This section was so worded because of the differencesin the status and authority of "officers in charge" in the variousservices. For example, in the Navy an 1I 0 fficer in charge" is alwaysa commissioned officer. vJhereas in the Coast Guard an 1I0fficer incharge II is construe<l to include noncommissioned officers as well ascommissioned officers.
Section (d) provides for the appeal by a person punished under theprovisions of Article 15. This section incorporates and strengthens theprior Army provision.
Section (e) conforms to the prio:!." Army provision and provides thatthe imposition of punishment ~der Article 15 is p.ot a bar to trial bycourt-martial for a serious offense but is a bar to trial f or a minoroffense.
Article 16. Courts-martial classified., ~-.
This article c~arifies the types of courts-martial and their composition. There is no change from the prior Army provisions except that thelaw member is redesignateo. ti.1e 1a\., officer, and the latter is no longer amember of the court.
LThe Omnibus Bill would amend section 2 of Article 16 to providefor a single officer special court-martial consisting of a lawofficer. Both the accused and convening authority would have toconsent to the use of such a one officer special court-martial.The law officer who vIDuld sit as a single officer special courtmartial would have to be certified as qualified for such duty byThe Judge Advocate General.
The American Legion Bill would anlend Article 16 to provide thata special court ..martial would have a law officer in addition tothe members presently required. This would be consistent withthe American Legion amendment to section 10 of Article l~
Article 17. Jurisdiction of courts-martial in general.I
Section (a) provides that each armed force has court-martial jurisdiction over all persons subject to the Code, thus providing for reciprocal jurisdiction among the a:I.~ed forces. The exercise of jurisdictionby one armed force over personnel of another armed force, however, mustbe in accordance with regulations prescribed by the President.
Section (b) provides, where reciprocal jUJ;'isdiction has been exercised, that the appellate re'new required by the Code shall be carriedout by the armed force of which the accused is a member.
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The provisions of this article are quite new. Under the former Articles of ~var, the Army was able to exercise jurisdiction over Marine Corps personnel and certain Naval personnel in some special situations. The other services, however, had no jurisdiction over Army personnel.
By Executive Order, the President delegated to the Secretary of Defense the authority to empower co~nders of joint commands or task forces to convene general courts-martial for the trial of any member of the armed forces. The Secretary of Defense has in fact, in a few cases, empowered certain joint commanders to exercise reciprocal jurisdiction.
Article 18. Jurisdict~on ,?J[ general courts-martial.
This article provides that general courts-martial have jurisdiction to try any person subject to the Code for any offense and adjudge any legal punishment unOar such r~gu1ations that the President may prescribe. It also provides that general courts-martial have jurisdiction to try any person who by the law of 'War is subject to trial by a military tribunal and adjudge any punishment not forbidden by the law of war.
Article 19. Jurisdiction of special courts-martial.
This article provides for the jurisdiction of special courtsmartial and sets the limitations on various punishments which may be imposed. This article is detived from Article of War 13 and effected no change for the A..""'IDy.
LThe American Legion Bill would amend Article 19 eo that special courts-martial would no longer be empowered to impose a bad conduct discharge. This accords with present AJ:mY policy as promulgated in AR 22-145 Which regulation as a practical matter has precluded special courts-martial within the Army from adjudging a bad conduct discharge for sometime.J
Article 20. Jurisdiction of s~a~J courts-martial.
This article provides for the jurisdiction of summary courtsmartial and sets forth the limits of punishment which may be imposed.
The article also provides for the right to refuse trial by summary court-martial except in those cases where the accused has been permitted to refuse punisl~ent under Article 15.
The absolute right to refuse trial by summary court-martial referred to in the preceding subparagraph reprelilents a change from the prior Army provision providing for S'UUIIllB.ry courts-martial. See principal change No.8 to the Articles of War as made by the Elston Act, supra, page 7.
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Article 21. Jurisdiction of courts-martial not exclusive.
This article was inserted to insure that the enactment of the Uniform Code of Military Justice would not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses who, either by statute or "by the law of war, may be tried by military commission, provost courts, or other military tribunals.
Article 22. 'Who may convene general courts-J;lla.rtial. ""-_.. .; OJ j.,
Section (a) lists the persons who may convene general courtsmartial as defined by Article 16. This section was derived from Article of War 8 which was altered only to the extent of including terminology applicable to Air Force and Navy commanders who occupy positions on a par with Army commanders.
Section (b) is also derived from Article of Ivar 8 and provides that the accuser in any case may not convene a court-martial f OT "I:.he trial of that case. An accuser is defined by section 11 of Article 1 ..
[The Omnibus Bill would amend section (b) to provide that if the convening authority (except tbe President) is an accuser, the court must be convened by competent authority not subordinate in command or grade to the accuser;]
Article 23. 'Who mar convene specialcourts-ma~~ial.
This article is similar to Article 22 eXc8pt that it perce..:l.ns to the special courts-martial.
[The Omnibus Bill 'Would amend section (b) of Article 23 in the same fashion that it would amend section (b) of Article 22;]
Article 24. Who may convene summary courts-martia,l.
This article is also similar to Article 22 except that it pertains to summary courts-martial.
fjhe American Legion Bill 'Would amend section (b) of Article 24 to prohibit an officer from acting as a summary court when such officer is the only commissioned officer present with a command or detachment;]
Article 25. 'Who may serve on courts-martial.
Sections (a) , (b), and (c) make personnel of any armed force competent to sit as members of courts-martial without regard to whether they are members of the same armed force as the convening authority or the accused. ThiS, of course, effects a change from the former Army provision (ArtiQle of IV'a,r 4) to the effect that only Army personnel could sit on trials by oourts-martiaJr of Army personnel.
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Article of Far 4 did, however, as an exception to the foregoing statement, provide that Marine Corps personnel could sit on the courtsmartial of the trial of Army members when such Marine Corps personnel v~re detached for service with tile Army by order of the President. Thus, to a limited extent, Article of Hal' 4 was a forerunner of P..rticle 25. These sections, however, must be read in conjunction with Article 17.
["The Omnibus Bill would amend section (a) to provide that an officer to be eligible for appointment as a single officer special court~martial must have the same qualifications as a law officer and must be certified as qualified for duty as a single officer special court-martial by The Judge Advocate General. This proposed amendment must be read. in conjunction with the proposed amendment in the Cmnibus Bill to section 2 of Article l6.!.7
Section (c), in addition, limits the c~etency of enlisted persons to sit as members of courts-martial to cases where they are not members of the same unit as the accused. This proviso of section (c) was derived from Article of Ha;r:o 16 and effected no change for the Arrrt:f.
Subsection (d)(l) provides that no person shall be tried by a court-martial, any member of which is jun10r to him in rank or grade. 'Ibis provision also was derived from Article of 1-]ar 16 and effected no change in SUbstance for the Arrrry.
Subsection (d)(2) provides some general guide lines for convening authorities in appointing members of courts-martial. No real change of substance was effected for the Army. The last sentence of this subsection prOVides for the statutory disqualification of members of courts-martial and represents some change for the Army. For example, a person who has acted as investigating officer or as eounsel in the same case is, under the Uhiform Code of ~lilitary Justice, disqualified for membership; Whereas, under the Manual forCourts ..Martial, United States, 1951, these two categorie~ of persons would. only have been subject to challenge for cause.
LThe American Legion Bill would amend subsection (d)(2) to clearly prOVide that an accuser, a witness tor the prosecution, or one who has acted as investigating officer or counsel in the same case would be ineligible to serve as a m~mber of a court-martial.!.7
LThe American Legion Bill would amend A+ticle 25 by adding section (e) thereto prOViding that a summary court~martial must have the same qualifications as the law officer of a general court-martial..:.,!
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Article 26. Law officer of a gen;eral court-martial. ,
section (a) provides for the qualifications and disqualifications of law office~s.
Although this entire article was derived from Article of War 8, the real change is reflected in section (b), which provides that the law officer is not a me.'1lbel" of the court, nor may he consult with members of the court except in the presence of accused other than on th~ form of the findings.
/Jhe l\uI.erican Legion Bill would amend section (b) and prohibit the law officer from assisting the court in placing the findings in proper form~ _
LThe American Legion Bill would further amend Article 26 by adding section (c) thereto providing that the law officer would preside over all proceedings of general and special courtsmartial except When, the court was clo~ed for deliberation or votingJ
Article, 21. AP1?ointIJ!ent of trial counsel and defense counsel.
Section (a) provides generally for 'the appointment of trial counsel and defense counsel and sets forth some specific disqualifications.
LThe .American Legion Bill 't-Tould amend section (a) and require the detail of a defense counsel before a st.1ll1171ary court-martial upon request of the accusedJ
Section (b) sets forth the specific qualifications for those persons appointed either as trial counselor defense counsel. This section effected a moderate change for the Al'"nly in that under the Uniform Code of Military Justice counsel for general courts-martial must in all cases be lawyersj under the Articles of War, non-lawyerS could b~
appointed in certain cases. The reqUirement for certification of trial and defense counsel of general courts-martial Bet out in subsection (b)(2) is new.
Section (c) provides for the qualifications of counsel before special courts-martial and is derived from, and is substantiaJ.ly the s~ne as, Article of War 11.
Article 28. A~ointment.$ reporters and interpreters.
This article provides authority for the appointment of reporters and interpreters pursuant to regulations issued by the Secretary of the Department. This article is substantiallY' the same as Article of '.]ar 115, the prior Army provision from 'Which it was derived. The power to appoint reporters a.nd interpreters, however, was shifted from the president of the co\lrt und,el:' Article of vTar 115 J to the convening authority under Article 28.
],.0
Artiole 29. Absent and additional members.
Section (a) limits the reason for excusing membe~s of courts-martial after arrai gnment and is new.
Sections (b) and (c) specify the procedure for replacing absent members of general and special courts-martial.
LThe American Legion Bill would amend section (c) by requiring the procedure presently required when a new member is placed on a special court-martial to·be conducted before the law officer thereof and the members. This change is consistent with the concepts otherwise proposed in the American Legion Bill to provide a law officer on special courts-martial.J'
Article 30. Charges and specifications.
This article describes the procedure to be followed in the preferring of charges.
Section (a) is substantially the same as Article of War 46, from which it was derived.
Section (b) is new and provides for the immediate disposition of charges; and for informing the accused, as soon as practicable, when charges are preferred. See Article 98, which makes it an of:'ense to unnecessarily delay the disposition of a case. See also A:r"ticIe 10, which provides that a person placed in rest~aint be promptly informed of the specific wrong of which he is accused.
Article 31. Compulsory self-incrimination prohibited.
This article was derived from Article of War 24 and prohibits generally any compulsory self-incrimination.
Section (a) provides that no person subject to the Code shall compel any other person to incriminate himself and, thereby, extends the privilege against self-incrimination to all persons under all circumstances. Under the predecessor provision, Article of War 24, only persons who were witnesses were specifically granted this privilege.
Section (b) provides that no person subject to the Code shall interrogate or request any statement of an accused or a person suspected of an offense without informing him of his rights. This advice must include a statement of the nature of the accusation, that no statement need be made, and that if any statement is made, it may be 'Used as evidence against him. This section broadens the comparable provision in Article of War 24 to protect not only persons who are acc'Used of an offense, but also those who are suspected of one.
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Section (c) provides that no person sub.iect to the Code shall compel any person to make a statement or produce evidence before ally military tribunal if the same is not materiaJ. and may tend to degrade him. This section is similar to Article of War 24 in tha.t the privilege against self-degradation is granted to w.Ltnesses before a. military tribunal and also to persons who make depositions for use before a military tribunal. It is made clear, however, that this privilege cannot be invoked where the evidence is materiaJ. to the issue.
Section (d) provides that no statement obtained in violation of Article 31 or through the use of coercion, unlawful influence, or unlaw... ful inducement may be received in evidence against such person in a. triaJ. by court.martial. This section effected a change from the comparable provision in Article of War 24 in that under section (d) statements or evidence obtained in violation of sections (a), (b), and (c) are admissible only against the person fr01l1 whom they were obtained. This conforms with the theory that the privilege against self-incrimination and selfdegradation :1,8 a personal one.
~icle 32. fnvestisetion.
This article provides generally for a pretriaJ. investigation in all generaJ. court-martial cases. Various section s provide for the SUbject matter of' the investigation, the pl"Ocedure, and the right to counsel. This article was der!ved from Article of War 46.
Section (a) effects no change in substance from ArV.cle of 'Wlj,r 46.
The last clause of section (b) p:roviding that a copy of the statements be given the accused is new. Otherw.Lse, this section conforms to the comparable provision of Article of War 46.. .
Section (c) is new and is designed to eliminate duel investigations. Thus, where there has been a previous investigation, an Article 32 investigation is not required unless demanded by the accused.
Section (d) provides that, though the requirements of Article 32 a:re binding on aJ.l persons administering this Code, failure to follOW the provisions of Article 32 shall not constitute jurisdictional error. This section was added by Congress to p:revent Article 32 from being construed as jurisdictional in habeas corpus proceedings. It should be observed, however, that an officer who has the responsibility to order a pretrial investigation and who intentionally fails to have ~uch an investigation conducted" and such failure substantially prejudices the rights of an accused would be guilty of an offense under Article 98.
Article 33. Forwardine; of char&es.
This article provides for a report in writing if charges and the Article 32 investigation are not forwarded to the officer exercising general court-martial author!ty within eight days after an accused is ordered, into arrest or confinement for triaJ. by general court-martial. This article is derived :f');om I\rtic:t.e of Wal:' 46 and is intended to insure
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the expeditious processing of charges and specifications in general.court-martial. trials. Other than the requirement that the report bein writing, no change was made from the comparable provision inArticle of War 46.
Article 34. Ad~ice of staff judge. advocate and reference for trial.
This article is the statutory requirement that a convening authority must obtain pretrial advice from his Staff Judge Advocate ingeneral co"U,rt"!'martial cases.
Section (a) is derived from Article of War 47, and no substantialchange was effected. It does now make it clear that the finding, thatthe charge alleges an offense and is warranted by the evidence, is tobe made by the convening authority and not the Staff Judge Advocate.This clarifies this ambiguity in Article of War 47.
Section (b) allows formal corrections in the charges and specifications as well as changes to mal~e the charges and specificationsconform to the evidence contained in the investigating officer'sreport. This provision w.s derived from the Manual for Courts-~ia.l,
United States, 1949. . I- ,~
Article 35. Service of charges.;;.",;.;;,....,.....;..;.,;;.....;.,.......;.=..;;;.-
This article provides for service Of a copy of the charges on theaccused and also provides that in time of peace no person shall be triedover his objection by general court-martial within five Clays subsequentto service of charges or by special court-martial within a period ofthree days subsequent to the service of charges. This article wasderived from Article of War 46. '.['he only principal change in SUbstancetherefrom is the insertion of a three-day time limit on trials by specialcourt-martial. Article of Hal' 46 only contained the. five-day timelimit concerning general courts-martial.
Article 36. President may prescribe rules.
This article provides the present statutory basis for the Presidentto prescribe rules of procedure including modes of proof for all themilitary tribunals. This article is derived from Article of War 38 andwas broadened to apply to all military tribunals of all of the services.Section (b) was added by the House Committee to insure the uniform!tyof such rules in all the services ~
fjhe American Legion Bill would revise Article 36 completely.It would require that the rules of procedure in couTts-martialbe prescribed by the United States Court of Military Appealsand that the rules of evidenoe applicable in the United StatesDistrict Court for the District of Columbia be applicable tocourts-martiaJ. (with nrl.nor exceptions otherwise made in theamendment ):7
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Article 37. Unlawfully influencing action of court.
This article prohibits convening authorities and commanding officers from unlawfully influencing the law officer, counsel, and members of courts-~tial. It also proscribes unlawfully influencing any convening or reviewing authority with ~spect to their judicial acts. This article incorporates the provisions of Article of War 88. In addition, however, it prohibits the unlawful influencing of' the law officer or counsel.
This article, as was its predecessor, is not intended to preclude the reviewing author!ty from u;aldng fair comments on errors· of the court in an opinion which is made in the course of' a reviewl or from returning a record for rev"'lsion, or trom talting appropriate action when a member of the court has so misbehaved so a.s to aba+ldon his judicial responsibility or duties. Violations of this artiGle, however, consti ... tute an offense under Article 98.
lfhe Omnibus Bill wo~d amend Article 37 to provide clearly that no commanding officer or any officer on the staff of any cOl1lDlEUlding officer should unlau:fUUy influence law officers, counsel, and members of courtsJ
/Jhe American ~gion Bill would supplement Article 37· by adding section 1509 to title 18, United States Code, providing that whoever censures, reprimands, aboli~hes or endeavors to cohere,
improperly influence, directly or indiI'ectly, any court ...martial or other military tribunal shall be fined not more than $5,000.00 or imprisoned for not more than f;Lve years or both:7
Article 38. I]uties of trilU counsel aqd defense counsel.
This article provides generally for the duties of trial and defense counsels. Sections (a) and (b) were derived from comparable provisions in Articles of War 11 and 17.
[fhe American Legion Bill would amend section (a) to provide that the trial counsel would prepare the record of trial of special and general courts-martial under the direction of the law officer:l
Section (0) is new and is designed to encourage defense counsels to submit briefs in appropriate cases.
SectioIB (d) and (e) are derived from Article of War 116. However, these two sections impose stricter requirements governing the circumstances under Which assistant counsel ma.y act independently of the t~ia~ qounsel or defense counsel in order to maintain the quantity of counsel and to protect the acc~sed.
Article 39. Sessions. I •
This article provides that only members of generaJ. and special courts-martial shall de~~berate and vot~ on ~h~ findings and sentence. By its terms" ho'to1eveJ'~ th~ laW officer is allowed to assist the court
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in placing the findings in proper form. It aJ.ao provides for the recording of all proceedings. It expands the provision of Article of War 30 and provides for the presence of all parties and the law officer in general courts-martiaJ. except when the D1embers of the court retire to vote or deliberate or when the law officer assists the court with the findings. It further prohibits the court from conaulting either with trial counsel, defense counsel, or the law officer in the absence of the others.
ffhe American Legion Bill would amend Article 39 to prohibit the law officer of a general court-martial from assisting the court in placing its findings in proper form. This proposed amendment should be read 1nconjunction with the proposed amendment of the American Legion Bill to Article 26J
Article 40. Continuances.
This article provides simply that a court-martial may gr~t a con.. tinuance for reasonable cause and folloWS the comparable former Army and Navy provisions.
!Jbe American Legion Bill woulci a.lIlend Artiele 40 to clearly provide that in general. and speciaJ,. courts-martial it is the law officer who may grant continuancesJ
Article 41. ChaJ.lenges.
This article provides for challenges for cause and peremptory challenges.
Section (a) provides for challenges for cause and is SUbstantially the same as Article of War 18, from which it was derived.
[The American Legion Bill would amend section (a) to provide that the law officer would determine the val1d1ty of: challenges for cause rather than the court as is now provided by section (a);]
Section (b) authorizes one peremptory challenge by the trial. eounsel and one peremptory challenge for each accused. This effected a change from a comparable provision in Article of War 18 in that formerly only one peremptory chaJ.1enge was allOloJed to the defense regardJ.ess of the number of defend8l,lts. Under prior Navy law, no peremptory challenges were aJ.lowed.
/Jhe omnibus Bill would anlend section (b) to provide that a single officer special court-martial would only be subject to challenge for cause and could not be peremptorily cba11en~d.J
Article 42. Oaths • . ,
This article requires that all officials and clerical assistants of general and special courts-martial be sworn. The oaths are not described in the Code as it was felt by the Congress that the language of the oaths was suita.ble matter to be covered by regulations. The Manual for CourtsMartialz United Ste-tea, 195:L, provide$ f'0l1 these va.r:i,ous oa.ths substantially in the same form as' u~eabythe ArmY tm~r :p~10r me.nu~s.
15
Article 43. Statute of limitations.
This article provides for a statute of limitations for all of the various offenses punishable under the Code.
Generally speaking, this article provides a statute of limitations of three years for the more serious offenses, a statute of limitations of two years for less serious offenses, and no statute of limitations for the offenses of desertion or AWOL in time of 'War, aiding the enemy, mu-'ciny, &1d murder.
In general, Article 43 is comparable to the former Army provisions except that (1) aiding the enemy 'Was added to the list of offenses which may be tried and punished at any time; (2) section (c) of Article 43 added a statutory time limitation on nonjudicial punishmentj and (3) section (b) of Article 43, adapted from Article of War 39, changed the time when the period of limitations would stop nll1lling from the time of arraignment to the time sworn charges a..11.d specifications are received by an officer exercising summary court-martial jurisdiction over the command.
Section (d) provides for certain circumstances under which the statute of limitations will not run.
Section (e) provides for a temporary suspension of the statute of limitations for any offense, the trial of which would be detrimental to the prosecution of a war or inimical to the national security.
Section (f) incorporates a similar provision in 18 U.S.C. 3287 which otherwise might not be applicable to court-martial cases. This section generally provides for a suspension of the running of the statute of limitations in procurement matters generally during the of vTar and for three years after the termination of hostilities.
Article 41~. Former jeopardy.
Section (a) provides that no person shall, ,dthout his consent, be tried for a second time for the same offenses and preserves for the members of the armed forces comparable protections afforded in the Fifth Amendment to the Constitution. A similar provision has been in the Articles of War since 1806.
Section (b) sets forth the condition which must be met before a trial by court-martial becomes a trial.
Section (c) provides that any trial which is terminated after the introduction of evidence by the convening authority or the prosecution for failure of evidence or witnesses without any fault of the accused shall be a trial in the sense of this article.
Article 45. !1..eas of the accused.
Section (a) provides for entering a plea of not guilty for the accused in the event he makes any irregular pleading or in any manner improvidently pleads guilty, or if he fails or refuses to plead at all. This section follows the comparable provision in its predecessor, Article of War 21.
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Section (b) is new and provides that the accused may not plead guilty where the death penalty may be adjudged. This rule, while not·a. provision of law under the former Articles of' Hex, was followed by the Army as a II1atter of policy. This same rule "ras also followed by the Navy as to certain capital offenses.
Article 46. opportunity to obtain witnesses and other evidence.
This article provides equal opportunity for the prosecution and the defense to obtain witnesses and other evidence. It was derived principally from Article of Hex 22. The Congress purposely left the mechanical details of the issuance of process to regulations.
Article 47'; Refusal to appear or testify.
This article provides the authority, and the penalty for the violation of' such authority, to compel persons not subject to the Code to testify in court-martial cases when duly subpoenaed. This article was derived principally from Article of' vlar 23 (although the Navy had a similar provision). A Violation of this article is punishable only in a United States district court or in a court of original cr1ndnal jurisdiction in any of the Territorial possessions of the United States.
Article 48. Contempts.
This article was derived from Article of War 32 and perpetrated the authority of' courts-~tial an<;l other military tribunals to swmnarily punish for contempt any person who uses any-menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder.
Article 49. Depositions.
This article provides f'or the taking and use of depositions in trials by courts-martial. No substantial change was effected from the comparable prior Army provision.
Article 50. Admissibility of' r~cords of courts of' inquiry.
This article specifies the conditions under which the records of a court of inquiry may be used in a subsequent court-martial case. This article is derived from Article of 'It!ar 27 and is also similar to prior Navy practice.
Article 51. Voting and rulings.
Section (a) prescribes the manner in which members of a courtmartial shall vote.
Section (b) provides authority for the law officer Of the general court-martial and the president of a special court-martial to make final rulings upon all interlocutory q.uestions other than challenge for cause, a motion for a finding of' not guilty, or a question of' the accused's sanity. .
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~The Omnibus Bill would amend section (b) to allow the law officer to rule finally on a motion for a finding of not guilty. It would further provide that the law officer could ch8J.lge any of his rulings made during the trial except where a ~otion for a finding of not guilty was granted~7
["The American Legion Bill would also amend section (b) and to provide that the law officer's ruling on a motion for a finding of not guilty would be final.J.·· .
Section (c) prescribes that the law officer of a gener~l courtmartial and the president of a specj.al court-martial must instruct the court as to the elements of the offenses, presumption of innocence, reasonable doubt, reasonable doubt as to the degree of guilt, and the burden of proof before the court closes to vote on the findings. This section was intended to set out the minimum requirements as to the scope of the instructions.
jJhe American Legion Bill would amend section (c) to provide that the law officer rather than the president of a special courtmartial would instruct the court on the elements of the offense and other required instructions. This change is consistent with the concept of haVing a law officer on a special court-martial as otherwise provided by proposed amendments in the American Legion Bill.J
The provisions ·ot this article ·are, in general, derived from Article of War 31.
LThe Omnibus Bill would amend Article 51 by adding section (d), providing that sections (a), (b) l!Zld (e) would not apply to a single officer special court-martial and that the single officer special court-martial would determine all questions of law and fact and adjudge the sentence~7
Article 52. Number of votes required.
This article prescribes the number of votes required in various circumstE)nces in trials by courts-martial and is derived from ~ticle
of War 43.
SubSection (b}(3) clf,lrifies the comparable provision in Article of War 13 as to the number of votes required for a sentence which does not extend to death or imprisonment in excess of 10 years.
Section (c) clarifies the comparable provision in Article of Har 43 for the method of determining issues to be decided by a majority vote when the vote is tied.
LThe American Legion Bill would delete the language in section (c) related to a tie vote on a motion for a finding of not guilty. This amendment is acquired because of the amendment proposed by the American Legiqn Bill to section (b) Of Article 51, which would aU-ow the law officer to rule finally 9n a motion for a finding of not guilty;; .
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kticle 53. Court to announce action.j
This article is larg-ely ne'\" and provides that every court-martialmust announce its findings and sentence to the parties a.s soon as determined. Article of War 29 requir~d that an acquittal "be announcedbut left the announcement of a sentence of findings of guilt;y to thediscretion of the court. Corlg.ress felt, however, that the accused andhis counsel should be informed of the outcome of the trial as soon asthe results are determined.
Article 54. Record of trial.q. I'
Sect:l,.on (a) provides for the maintenance and authentication ofrecords of trial by general courts-martial. This section differs froma comparable provision in Article of War 33 in that now the law officerand the president authenticate a record of trial by general courtmartial, whereas under Article of \<Tar 33 the trial counsel and thepresident authenticated such record.
!fhe Omnibus Bill would ronend section (a) so that a s~unmarizedrecord of trial could be made for all general and special courtsmartial, not including a bad conduct discharge or a greater sentence that could othej.~vdse be adjudged by a special court-martialJ
!fhe American Legion Bill would amend section (a) and requirethat all general and special courts-martial records of trialbe authenticaolied by the law officer and the senior member presentJ
Section (b) proVides for the maintenance and authentication ofrecords of trial by special and summary court-martial. The authentication of these records is left to reSLuations prescribed by thepresident. fhis section is derived from Article of War 34.
@ection (b) as conteE1plated by the Omnibus Bill will allowan accused to have a verbatim record of trial by generalcourt-martial made at his o'Wn expense where the same is notrequired by law.J
Section (c) is new O-l'1d provides that a copy of the record oftrial in each general and special court-martial case be given tothe accused as soon as aut.henticated. Under Article of Har 111 acopy of t;1e general court-martJ.al record was given to the accusedif he demanded it. Under t.he prior Navy practice t.he accused wasautomatically given a copy of the record of each general court ..martial. This article, of course, goes further tl~ either t0eprior Army or Navy practice.
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Article 55. pruel and unusual ;puni.shmen~s prohibited.
This article prohibits cruel and unusual punishments and, generally spe&{ing, re-enacted existing provisions of law. See comment under the Articles of ~'Tar of 1874, supra, wherein the punishments of flogging, branding, marking, and tattooing were first prohibited in the Army.
Article 56. Maximum limits.
This article authorizes the President to establish the maximum limits of punishment for any offense except one for which a mandatory punishment is prescribed. There was no change in substance from the prior comparable Army provision.
Article 57. Effective date of sentences.
This article is new. Section (a) prohibits the forfeiture of pay or allowances coming due before the date of approval by the convening authority. Formerly, in the Army, pay and allovlances vlhieh became due prior to the date of approval of the sentence by the convening authority could be forfeited~ Under thil? section, however, the forfeiture of pay and allowances becoming due after the date of approval by the convening authority, but before the date Of final approval, is permitted.
Section (b) provides that a sentence to confinement begins to run on the date adjudged.
Section (c) prOVides that all other sentences shall become effective on the date ordered executed.
Article 58. Execution of confinement.
Section (a) authorizes any sentence of confinement adjudged by court-martial or other military tribunal to be carried into execution by confinement in any place of confinement under the control of any of the ~ed forces. In addition, it authorizes confinement in any penal or correctional institution under the control of the United States or which the United States may be allowed to use. This latter provision was derived principally from prior Naval law.
Section (b) was derived principally from Article of VJar 37 and provides that the omission of words "hard labor" in any sentence adjudging confinement shall not be construed as depriving the authority executing such sentence of the power to require hard labor as a part of the punishment.
Article 29. Error_of lavT; lesser included offense.
Section (a) was adapted from Article of Har 37, and a comparable provision of Naval Courts and Boards, and provides that a finding or
20
sentence shall not be held incorrect because of an error of law unless the error materially prejudices the substantial rights of the accused.
Section (b) was derived from Articles of 't'lar 47 and 49 and the Manual for Courts-Martial, U. S. f.rr!!Y, 1949". It provides revie1n.ng authorities with the power to approve or affirm lesser included offenses. See Article 79 for a definition of a lesser included offense.
Article 60. ~tial a.ction on the record.
This article prescribes who may take initial action on records ot trial of courts-martial. It was derived mainly from Article of Har 47.
Article 61. Same--General court-martial records.
This article provides that the convening authority must in every general court-martial case obtain the written opinion of his Staff Judge Advocate thereon prior to taking bis action. This article was drawn principally from a comparable provision in Article of 'VTar 47.
Article 62. Reconsiderat~on and revlPion.
This article provides the conditions where a convening authority may return cases to the court for reconsideration and review.
No provision similar to section (a) was in either the Articles of Har or the Articles for the Government of the Navy. Under the prior practice in all of the services1 however, the convening authority possessed such power.
Section (b) incorporates similar provisions found in ft~ticle of War 40 and prohibits returning a record for reconsideration of a finding of not guilty, a ruling which amounts to a finding of not guilty, or increasing the severity of the sentence (except where a mandatory sentence is involved).
Article 63. Rehearings.
Section (a) provodes authority for a convening authority to order a rehearing where he disapproves the findings and sentence, except where there is a lack of sufficient evidence in the record to support the findings. The Army has had a similar provision in the Articles of 'VTar since 1920.
Section (b) sets forth certain restrictions on all rehearings. Mainly, (1) members at the rehearing must not have been members 'ltlhich first heard the case, (2) the accused may not be tried for any offense of which he was foUnd not guilty at the first trial, (3) no sentence in excess of or more severe than the original sentence shall be imposed at the rehearing unless based upon findings of guilty not considered at the first trial or unless a mandatory sentence is involved.
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Article 64. Approval by the 9~r.!ing authority.
This article authorizes the convening authority to approve only such findings of guilty and the sentence or such part or amount of the sentence as he finds correct in law and fact and determines should be approved. It conforms substantially to the prior practice in all of the services. This article should be read in conjunction with Articles 29 and 79. It is clear also that a convening authority may disapprove a finding or a sentence for any reason or for no reason at all.
Article 62' Disposi~ion of records after review b~ the convening authority,
This article prOVides generally for the disposition of records of trial after review by the convening authority.
Section (a) incorporates prior Army practice under Article of War 35, and provides that after review general court-martial cases shall be sent to The Judge Advocate General.
Section (b) prOVides that records of trial by special courts-martial, where a bad-conduct discharge was adjudged and approved by the convening authority, must be forwarded to the officer exercising general courtmartial jurisdiction over the command or directly to The Judge Advocate General. This provision was adapted from Article of Vlar 36 except for the alternative of sending the record directly to The Judge Advocate General. This alternative was permitted in order to prOVide for situations where no judge advocate is assigned to the staff of the officer exercising general court-martial jurisdiction or where di rect transmittal to TIle Judge Advocate General 1-Tould be more expeditious. A record of trial by special court-martial fO~varded to the officer exercising general court-martial jurisdiction must, if the sentence approved by such officer includes a bad-conduct discharge, then be forwarded to TIle Judge Advocate General. Any record of trial by special court-martial, where the sentence includes bad-conduct discharge, is ultimately forwarded to The Judge Advocate General for review by a board of review.
Section (c) is derived from Article of \Tar 36 and permits the revie,v of special courts-martial not involVing a bad-conduct discharge and all summary courts-martial to be as prescribed by regulations, subject to the requirement that all such records be reviewed by an officer of The Judge Advocate General r s Corps.
jJf.he Omnibus Bill would make several amendments to the various sections of Article 65 which would have the result of no longer requiring general court-martial cases where the sentence did not include a bad-conduct discharge or was no greater than could othervnse be adjudged by a special court-martial to be forvTarded for appellate review~
LThe American Legion Bil~ wo~d amend section (b) of Article 65 so as to no longer req~ire any s;pec;l.~ ~ourtf"martial to receive
22
any review other than what is now required of summary courtsmartial. This amendment is consistent with other amendments in the American Legion Bill which would prohibit a special courtmartial from adjuding a bad conduct discharge;!
Article 66. Review by the board of review.
Section (a) provides for the composition and qualifications of memebers of boards of review. This section adopts the prior Army practice of review by a formerly constituted board. The required qualifications of the members are neio}'. The proviso that members of the board of review may be either officers or ciVilians was adopted principally in order that the Coast Guard, which. is under the jurisdiction of the Treasury Department during time of peace, could utilize civilians on their boards of review.
LThe American Legion Bill would amend section (a) to provide that boards of review would be constituted by the Secretary of Defense (except for the Coast Guard). Board of review members serve until relieved by the Secretary of Defense and would be excluded from the not more than one thousand officers detailed to the .~ general staff and also not subject to the present limitations that an officer may not serve at The Pentagon for more than four years. 1fJ.embers of the boards of review would be rated for efficiency by the secretary constituting the board, which in the case of the Army would be the Secretary of the Army.J
Section (b) provides for automatic reView, whether o~ not the sentence is suspended, for certain types of cases which are specified. Types of cases when automatic review is required are substantially the same as those in a comparable provision in Article of Har 50 •
./!fue Cmnibus Bill would amend section (b) so that review by a board of review would not be required in guilty plea cases unless the approved sentence extended to death, affected a general officer, or extended to the dismissal of a commissioned officer or cadet~7
Section (c) provides that the board shall act only with respect to the findings and sentence approved by the convening authority. This provision insures that the findings or sentence may not be increased on appellate review. This section also provides that the board shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, which it determines correct in law and fact and determines, on the basis of the entire record, should be approved. It is also prOVided that the board may weigh the eVidence, judge the credibility of witnesses, and determine controverted questions of fact. This latter provision made its first appearance in the law as a result of the Elston Act of 1948. See principal change 21 thereunder.
23
Section (d) grants specific authority to the board of review to order rehearings. Inferentially, this authority is subject to the limitations of Article 63b. This provision vlas derived from Article of Har 52 and effected no change for the Army.
Section (e) provides that where appellate review is complete at the board of review level, The Judge Advocate General will instruct the convening authority to take action in the case in accordance 'with the board's decision. The last sentence of this section is the statutory basis for a convening authority to dismiss charges where a rehearing has been ordered by the board of review but the convening authority finds that to hold a rehearing would be impracticable.
fihe Omnibus Bill would amend section (e) to give The Judge Advocate General authority to dismiss the charges vlhenever a board of review orders a rehearing and he finds a rehearing impracticable..!.?
Section (f) proVides statutory authority for The Judge Advocates General to prescribe uniform rules of procedure for proceedings before boards of review.
Article 67. Review by the Court of Mil!tary Appeals.
This article established the United States Court of Miltiary Appeals which consists of three civilian judges. Thus, the most revolutionary change '-1hich has ever been incorporated into military justice ,res made. Under all prior law applicable to each of the services, appellate review 1iaS conducted solely within the military Department.
Section (a) makes provision for establishing the United States Court of Military Appeals, who may serve as judges, and provides for their compensation. The section also prOVides for the term of office and makes provision for removal and for substitution in case of disability.
Section (b) provides for the automatic review of certain cases and the review of other cases on petition of the accused.
Section (c) prOVides the time limit (30 days) in which an accused must petition for review by the Court of ~tllitary Appeals after the decision of a board of review is rendered.
Section (d) sets forth the issues which may be considered by the Court in various cases and is similar to a cOlnparable provision for boards of revielr unCl~r .Article 66(c). !his section also prOVides that the Court of Military Appeals may take action only with respect to matters of law. Thus, the Court has no authority to weigh eVidence, judge credibility of witnesses, or determine controversial questions of fact.
24
L'rrae American Legion Bill would amend Article 67 so as to give the Court of Military Appeals the same authority as boards of review now have under Article 66(c) with respect to the findings and sentence, namely to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact~7
Section (e) is the statutory authority for the Court of Military Appeals to order rehearings. It provides the same authority for the Court as is provided for boards of review in Article 66(b).
Section (f) has generally the same purpose as Article 66(e) with respect to boards of review.
[The Omnibus Bill would amend section (f) and give 'Ihe Judge Advocate General authority to dismiss the charges whenever the Court of ~lilitary Appeals has ordered a rehearing and he finds a rehearing impracticable~
Section (g) provides that the members of the Court of Military Appeals and the Judge Advocates General (which includes the General Counsel of the Treasury Department) shall meet annually to survey the operation of the Code and repo~ to the Congress and the Secretaries. These persons are generally referred to as the Code Committee.
Article 68. Branch offices.
This article provides for the establishment of branch offices of The Judge Advocate General with distant commands, and the authority to establish boards of revie,., in such branch offices. It f~rther provides that the Assistant Judge Advocate General in charge of such a branch office, and the boards of revie"r therein, are empowered vri th the same functions as The Judge Advocate General and boards of revie"T in the Office of The Judge "~vocate General.
Article 69. Review in the office of The Judge Advocate General.
This article provides for appellate review in the Office of The Judge Advocate General of every general court-martial case in vThich there has been a finding of guilty and a sentence (thus excluding acquittals) where appellate review is not othenlise provided for in Article 66. This article incorporates a comparable provision in Article of War 50.
LThe Omnibus Bill would amend Article 69 and give The Judge Advocate 'General the power to twce corrective action on cases reViewed in his office under this article to the same extent that a board of review may take corrective action on cases reViewed by i t ~7
25
!\rticle 70. Appellate Counsel.
This article is entitely new and is included in the Code in order tllat the accused may be represented on appellate review by a qualified la~r,yer. It provides generally for the appointment of appellate counsel both for the Government and the accused. In addition, it specifies the duties of appellate counsel. It also contains a proviso, in section (d), that the accused may in any event be represented on appellate review by civilian counsel, if provided by the accused.
Article 71. Execut~lon of sentence; s1!spension of sentence.
This article provides the conditions under which various sentences of courts-martial may be adjudged. It is also theauthority for the suspension of courts-martial sentences. Section (a) pertains to sentences extending to death or involving general officers; seotion (b) pertains to sentences of dismissal of an officer or cadet; section (c) pertains to any sentence which includes, unsuspended, a dishonorable discharge or bad conduct discharge or confinement for one year or more; and section (d) pertains to all other court-martial sentences.
The varioUS sections of this article generally follow tile prior Army provisions except that the convening authority under the present Code is now given power to suspend.
[j:he Omnibus Bill would amend section (a) and make the death penalty include total forfeitures by implication~
f£'n.e Omnibus Bill 1'1ould also amend section (d) and allo,. execution of each portion of a sentence, other than i;hat portion of the sentence extending to dismissal of a commissioned officer or a cadet, without secretarial action~
LThe Omnibus Bill ,muld also amend section (b) consistent with the proposed amendment to section (b) so that all court-martial sentences and portions of sentences (excluding death, general officer cases, and dismissal cases) could be ordered executed by the convening authority unless suspended~
Article 12. ~ion of sUspe.!lsion.
This article is new and provides for the procedure which must be had before a sentence of a special court-III8i'tial which incl1,1des a bad conduct discharge, or any general court-martial sentence, may be vacated. This article has recently assumed greater importance in view of several decisions by the Court of l\1ilitary Appeals to the effect that the Ittecbnical suspension ll so long used by the Army may not be vaca.ted Without -a. hearing of the;! type .proVided for by this article.
26
Article 73. Petition for a ne"T trial.
'lhis article provides that an accused may, any time 'l'Titllin one year after approval by the convening authority of a serious courtmartial sentence, apply for e. new trial on the grounds of newly discovered eVidence or fraud on the court. It also provides who shall act on this petition under certain circumstances. This article is substantially similar to Article of War 53.
LThe Omnibus Bill would amend Article 73 to provide for a twoyear period for application of a new trial. The proposed amendment 'uould also allolT e. neyT trial to be ordered on a part of the findings only and would also allow 'lhe Judge Advocate General to talce corrective action upon an application for a new trial by modifYing or vacating the findings and sentence in whole or in part~
Article 74. Remission and suspension.
Under this article the Secretary of a Department may review the sentence of any court-martial. It gives the Secretary clemency and parole powers "Thich gives him ultimate control of sentence uniformity.
Article 72,. Restoration.
This article is new and provides for the restoration of all rights, privileges, and property affected by an executed portion of a court-martial sentence which has been set aside or disapproved. This article is also applicable to new trials and rehearings where the findings or sentence at the second trial are less than the findings or sentence at the first triaJ..
Article 76. Finality of court-martial judf!P1ents.
This article prOVides for the finality of courts-martial judgments after such review as otherwise prOVided by the Code has been completed.
f£'ne American Legion Bill would amend Article 76 and provide that the finality of courts-martial proceedings would also be subject to review by a separation review board~
Articles 77 - 134.
Articles 77-134 are the punitive articles of the Code which set out and define the different offenses over 'tV'hich the Uniform Code confers jurisdiction. The committee which drafted the Uniform Code observed during their studies of the Articles of War and the Articles for the Government of the Navy that, although each defined most of' the so-called military offenses, neither defined aU of such offenses.
27
Moreover, there were some offenses prescribed by each peculiar to the particular service. In addition, each of these former systems of military justice defined some offenses not defined by the other. In general, the civil type crimes were not defined by either the Articles of Har or the Articles for the Government of the Navy. In the case of the krmy, however, the Manual for Courts-Martial, U. S, Army~
~, did spell out or define the majority of the civil offenses. ~e same was true in so far as the Navy was concerned. In this field too, however, there was also some variance between the two systems in defining offenses.
The committee which drafted the Code, therefore, examined each offense common to both of the services and tried as closely as possible to use the definition for each particular offense that was common to both services; and to adapt whatever ideas were felt worthwhile from some of the more modern state codes. In addition" there were some definitions needed in the ~itive articles which had theretofore not been present. For example, the Uniform Code defines principals in Article 77, makes provision for lesser included offenses in Article 79, and defines an accessory after the fact in Article 78. In addition, the offense of solicitation is specifically spelt out in Article 82.
~e Omnibus Bill would amend Article 95 to eliminate the present distinction between escape tram custody and escape from cOnfinement...!.?
~e American Legion Bill would amend Article 98 by inserting a specific provision that a failure to deliver offenders to civil authorities, as prOVided for in Article 14 as amended by the American Legion Bill, would be an Offense:..?
LTbe American Legion Bill would amend Article 118 to specifically prOVide that no person may be tried by court-martial for murder committed in the United States in time of peace. See the proposed American Legion amendment to Article 14;]
["The American Legion Bill would amend Article 120 to prOVide that no person may be tried by court-martial for rape committed in the United States in time of peace:..!
Article IJ5. Courts of inquirl'
This article is a combination of the former .Army and Navy proVisions respecting courts of inquiry.
28
Section Ca) adopts tormer Navy practice and grants a broader authority to convene courts of inquiry than 'Was formerly the practice in the .Army.
The provision in section (0) for a counsel to assist the court in matters of law, presentation of eVidence, and keeping of the record is ne1".
Section (c), "lhich provides that any person 'Whose conduct is subject to inquiry shall be designated a party, was inserted to allow anyone who was involved in a court of inquiry to intervene in order to protect their rights and reputation.
Sections (d) and (e) providing tor challenges and oaths conform to both the prior Army and Navy practice.
Section (f), by prOViding that witnesses before courts of inquiry 'Will be sUJJJmoned and may testify as provided for courts-martial, has the effect of requiring such witnesses to be sworn. '.!his conforms to the prior Army practice.
Sections (g) and (h), prOViding respectively for JOO.king findings without opinion or recommendations and for keeping and authenticating the record, conform to both the prior Army and Navy practices.
Article 116. Authority to administer oaths and to act as notary.
This article is the authority for certain persons to administer oaths and to exercise generally powers of a notary public •
./.The American Legion Bill 'Would amend Article 136 to prOVide that the la", officer of a special court-martial (proposed in other American Legion amendments) 'Would ha.ve the authority to administer oaths and act as a notary.J
Article 137. Articles to be explained.
'!his article was derived from Article of '''ar 110 and provides that certain articles of the Code be carefully explained to every enlisted person at the time of his entrance on active duty or within six days thereafter. It also provides for subsequent explanation after the completion of six months active duty and for each re-enlistment. It further provides that the text of the Code, and any regulations prescribed by the President thereunder, shall be made available to any person on active duty uPQn his request for his personal observation. 'ntis article was derived from Article of Far liO which required that certain articles be read. '!his change trom "read" to "exp1ai.11" was made because it was telt that a careful explanation would be of more value than a mere reading.
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Article 138. .£2!.!!Elaints of wrongs.
This article provides a procedure whereby any member of the armed forces who believes himself 'Wl'onged by his commanding officer may make complaint to the officer exercising general court-martial jurisdiction7 which officer must examine the cOllij)laint and take such measures as the circumstances may justify. This article is adapted from Article of Har21.
Article 1;32. Redress of ilh1uries to property_
This article is a redraft of Article of Har 105, with changes, to permit the Secretary of the Department to prescribe the procedures for redress of injuries to property by members of the armed forces. '!he Secretary of the Army has implemented this article by the promulgation of AruIy Regulation . ~5-Bo.
Article 140. Deleeation b;r the President.
This article provides that the President may delegate any authority vested in him under this CQde and may provide for the subdelegation of any authority.
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~"HE SECRETARY OF DEFENSE
VASIIINGTON
11 December 1958
Dear Mr. Speaker:
There is forvTarded herewith a draft of legislation liTo amend title 10, United States Code, as relates to the Uniform Code of Military Justicell
, together with a sectional analysis thereof.
This proposal is a part of the Department of Defense Legislative Program for 1959, and the Bureau of the Budget has advised that there is no object:i.on to its transmittal to Congress for consideration. The Department of the Air Force has been designated .as the representative of the Department ot' Defense for this legislation., It is recommended that this proposal be enacted by Congress.
PurJ2ose_of the Legislation
The purpose of this proposed legislation is to improve the administration of milit~ justice in the armed forces. This proposal is based on recommendations by the Court of Military Appeals, the Judge Advocates General of the Army, Navy and Air Force, and the General Counsel of the Department of the Treasury, made at previous annual meetings as required by section 867(g) of title 10, United States Cod,e. In essence, this proposal is designed to eliminate some of the procedural -difficulties and delays which have arisen under the Uniform Code of Mi-lit.ary Justice since May 31, 1951, and to provide for more prompt and more efficient adm:i.n~st.ration ot m;i.litary justice, bot,h from the standpoint of the individual and the Government.
The principal features of the proposed legislation are as follows:
1. Single-officer courts. The proposed legislation, which is based upon Rule 23 of the Federal Rules of Criminal Procedure 1 would pel"IlJ.i t an accused to request and, if the convening authority consents thereto, be tried before a single qualified officer, instead of a multiple-member special court-martial. The adoption of such a procedure will result in a reduction of both time and manpower normally expended in trials by special courts-mart:tal. The rights of the accused in such cases are protected by the requirement that the officer acting as a special courtmartial have the basic qualifications Of a law officer under article 26(a) and that he be certified as qualified for that duty by the Judge Advocate General.
2. Records of trial. At tile present time, the use of a summarized record of'trial is permitted in trials by SPecial courts-martial when the
accused is acquitted of all charges and specifications or when the sentence does not extend to a bad-conduct discharge. On the other hand, all records of trial by general courts-martial are complete verbatim accounts of the proceedings thereof', even though the sentence is one which, if adjudged by a special court-martial, could be summarized. '!he proposed bill would correct this sit~ation by providing for a complete verbatim record in only those cases in which sentence adjudged includes a badconduct discharge or is more than that which could be adjudged by a special court-martial. All other records of trial would contain such matter as may be required by regulations prescr:Lbed by the President.
3. Rev:l.ew of recoFds of trial. The present law requires all general court-martial cases to be fOI"l-larded to the JuQ.ge Advocate General even though the sentence of the court is such that, if adjudged bye. special court-martial, ti1e record of the special court-martial would not have been so forwarded. TIle proposed bill corrects tllis S;i.tl.lat:i,on. ;rt p~ovides that general court-martial cases in which the sentence as approved does not include a bad-conduct discharge or does not exceed a sentence that could have been adjudged by a special court-martial sl:1all be transmitted and disposed of in the same manner as similar special court-raarti~ cases.
The present law requires that all sentences extending to a ]?tuoitiye discharge or confinement for one year or more be reviewed by a board of review. The proposed legislation prOVides that cases nmT required to be reViewed by a board of reView only because the sentence includes a punitive d;1.scharge or confinement for one year or more vTill be examined in the office of the Judge Advocate General in accordance with article 69, rather than by a board of revie"", if the accused :pleaded guilty and if he stated 1n writing that he does not desire review by a board of review. The enactment of ~1.is provision wOUld materially lessen the number of cases Y1hich need to be reviewed by boards of review and will thereby diminish the over-all time required to process court-martial cases. As this procedure upon revievr would be employed only in thQse· cases where the accused has pleaded guilty, it is believed that his substantial rights will not be prejud.iced thereby.
The present law requires the Judge Advocate General to refer article 69 Cases to a boa,rd of revie,., for corrective action when he finds all or part of the findings or sentence incorrect in law or fact. In a great many cases, the irregularities concerned involve nu;ttters well settled in the lavr, and in those cases the board of review's action amounts to no more than the application of thosewell~settledprinciples. This situation results in an unnecessary burden on the bo~ds of review and unduly increases the time required to process court-martial cases. To eliminate this unnecessary reference to a board of review, the proposed legislation authorizes the Judge Advocate General to correct the irregularity or injustice, vesting in him the same povrers and autbority with respect to those cases that aboard of review has. It 'Will be noted that the Judge Advocate GeneraJ.;,re~insauthorized to refer tmy
2
article 69 case to a board or review in his discret:i.on, and it is required that any finding or sentence incorrect in la,., or in fact be corrected either by a board of review or by the JUdge Advocate General.
4. Po~r6 of the JudGe Mvoc;ate General. 'Ihe proposed legislation autho:dzes the Judge Advocate General to dismiss the Gharges when the Court of Mili'tary Appeals or the board of review orders a rehearing which the Judge .Advocate General finds impracticable. It is believed that the Judge Advocate Genel"al is, in many cases, in the Q~st pos1tioil to dismiss the charges himself or to determine whether or not a rehearing is impracticable. Further, the administrative necessity or fOT''1arding the record to the convening authority would, in manY cases, be eliminated.
5. Execution of~~ntence_~. Currently, about 407 days elapse between the date an accused is tried by court-martial and the date his sentence is ordered executed after review by the 'United States Court of
. Military Appeals. As a result, many prisoners complete con:f'inement before their cases have been completely revie'tved. Further, since an unsentenceq. prisoner is not subject to the same treatment asa sentenced prisoner, the administration of confinement faeil:!. ties is unduly complicated, In some instances, delays in completion of the required review have led to complex administrative problems and loss of morale. Consequently, the proposed legislation p~ovides that a convenins autho~ity may order executed all portions of a sentence except that portion involving dismissal, dishono~able or bad-conduct discharge, or affecting a general or flag officer, tl1US eliminating the differences between sentenced and unsentenced prisoners. No sentence extending to death may be executed until approved by the President, although the proposed legislation will remove an anomalous result under the present code by providing that an accused sentenced to death forfeits all pay and allowances, and that the forfeiture may be made effective on the date tile sentence is approved by the convening authority.
6. Nevr Trial. To better protect the rights of' an accused, the proposed legislation extends the tim.e vTit..1.in ,.,hiGh an accused may petition for a new trial to two years from the date the convening authority approves the sentence. Further, the bOa.l:'d of review, the United States Court of Military Appeals, and the Judge Advocate General would be permitted to grant more comprehensive relief than is now possible.
7. Y9tinss and rulings. The proposed bill prOVides that a law officer shall rule 'With finality upon a motion for a finding of not guilty. It is anomalous to allOW the lay members of a court-martial to overrule the law officer on a question which :l.s purely an issue of law.
8. Punitive articles. The present code does not provide specific statutory authority··-tol:'the prosecution of bad-check offenses. The proposed legislationa.dds an additiopal puPitive article which contains provisions similar to the bad-chec~ statutes Of the District of Columbia
3
and the State of Missouri, including a provlslon that a failure to pay the holder of a bad check the amount due within five days shall be prima facie evidence of an intent to defraud or deceive. One of the tiifficulties arising under existing law is the necessity to prosecute bad-check offenses under one of three separate articles (121, 133 or 134), none of whic~ may be considered as a bad-check statute~ Because of technical difficulties that arise as a result of the unfortunate pleading of the wrong article, an obviously guilty person sonetimes escapes punishment. There are many difficulties inherent in obtaining a conviction of an accused for a bad-check offense vnthout proof of specicfic intent. Because of this, the proposed legislation is desirable to provide specific statutory authority for the prosecution of bad-check offenses.
9. Nonjudicial punishment. Good military discipline requires that a commanding offic~~'given greater authority in imposing nonjudicial punishment. Consequently, the proposed legislation provides that a commanding officer in a grade of major or lieutenant commander or above may confine an enlisted member of his command for a period of not more than seven days, or impose a forfeiture of one-half of one month's pay. Under article 15, officers may be punished for minor offenses, such as traffic violations, by imposition of forfeitures, and they are thereafter not handicapped professionally by a trial by court-martial. However, in order to achieve an efrective monetary punishment for enlisted members in similar cases, it is necessary to resort to a trial by court-martial, resulting in a permanent black mark on the enlisted member's record in the form of a conviction by court-martial. The change contemplated by the proposed legislation would permit prompt and effective disposition of such minor offenses. In addition, a commanding officer exercising general court-martial jurisdiction may impose on an officer or warrant officer of his command forfeiture of one-half of his pay for two months, instead of one month as now provided in the code. The one month limitation has proved unsatisfactory to commanders in the field and is not cured by the fact that an officer may be tried by a special court-martial. An officer's present and future value within his command is seriously and permanently impaired by the publicity attendant to tiial by court-martial. vllien such an event occurs, prompt transfer of the officer after trial is imperative, regardless of the outcome. Such a procedure is costly in time, mon.ey and manpower. It is believed to be essential that commanding officers retain their present power to try officers by special courtmartial as exceptional circumstances warrant. However, it is considered desirable to increase the punitive powers of article i5 so that an adequate punishment can be imposed upon an officer for a relatively minor offense.
10. Miscellan~. To facilitate administration of confinemenil;; facilities under the United Nations or other allied commands, the proposed legislation authorizes the confinement, in United States confinement facilities, of members of the armed forces of the United States with the members of the armed forces of friendly foreign nations.
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In addition, the proposed legislation makes other changes in the present code of a technical nature, designed generally to improve the administration of military justice within the framework of the existing code.
Cost and Budget Data
The enactment of this proposal will cause no increase in the budgetary requirements for the Department of Defense but will result in economies in the utili~ation of manpower.
Sincerely yours,
/s/
Donald A. Quarles Deputy Secretary of Defense
Inclosures
Honorable Sam Rayburn
Speaker of the House of Representatives
AN IDENTICAL LETTER HAS BEEN PREPARED FOR TBE PRESIDENT OF THE SENATE.
5
A BILL
To amend title 10, United States Code, as relates to the Uniform Code of Military Justice
1 Be it enacted by the Senate and House of Repre
2 sentatives of th~ Un~ted States of America in Congress
3 assembled, That title 10, United States Code, is amended
4 as follows:
5 (1) Section 801 is amended by adding the
6 following new clause at the end thereof:
7 11(13) 'Convening authority' includes, in addition
8 to the person who convened the court, a
9 commissioned officer commanding for the time
10 being, a successor in command, or ~y officer
11 exercising general court-martial juris~
12 diction. "
13 (2) Section 812 is amended to read as follows:
14 II § 812. Art. 12. Confinement with enemy
15 prisoners prohibited
16 "No member of the armed forces of the
17 United States may be placed in confinement
18 in immediate association with enemy prisoners
19 or other foreign nationals not members of
20 the armed forces of the United States, except
21 that a member of the armed fOl·ces of the
22 United States may be confined in United
1 States confinement facilities with
2 members of the armed forces of friendly
3 foreign nations."
4 (3) Section 815 is amended
5 (A) by striking out in subsection (a)(l)(C)
6 the words "one month's pay" and inserting
7 the words "his pay per month for a period
8 of not more than two months" in place thereof;
9 (B) by striking out at the end of subsection
10 (a)(2)(E) the word "or";
11 (C) by striking out the period at the end of
12 subsection (a)(2)(F) and inserting a semicolon
13 in place thereof; and
14 (D) by adding the fallowing new clauses at the
15 end of subsection (a)(2):
16 "(G) if imposed by an officer in the
17 grade of major or lieutenant commander
18 or above, forfeiture of not more thap
19 one-half of one month's payj or
20 (H) if imposed by an officer in the
2l grade of major or lieutenant commander or
22 above, confinement for not more than seven
23 consecutive days."
24 (4) Section 816 is amended by striking out the
25 word "j and" in clause (2) and inserting the
26 words "or only of a law off;Lqer who is certified
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to be qualified for duty as a single
officer special court-martial by the Judge
Advocate General of the armed force of which
he is a member if, before the court is convened,
the accused, knowing the identity of the law
officer, and upon adivce of counsel, requests
in writing a court composed only Of a law
officer and the convening authority has
consented thereto; and ll in place ther'$of.
(5) Sections 822(b) and 823(b) are each
amended to read as follotTs:
lI(b) If any person described in sub
section (a), except the President of the
United States, is an accuser, the court
must be convened by a competent authority
not subordinate in command or grade to the
accuser, and may in any case be convened
by a superior competent authority.1I
(6) Section 825(a) is amended by adding the
following new sentence at the end thereof:
IIHowever, to be eligible for appointment
as a single-officer special court-martial,
the officer must have the qualifications
specified for a latT otficer in section 826(a)
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10
15
20
25
1 of this title (article 26(a» and must be
2 certified to be qualified for duty as a
3 single-officer special court-martial by
4 the Judge Advocate General of the armed
force of which he is a member."
6 (7) Section 837 is amended by striking out in
7 the first sentence thereof the words "nor any
8 other commanding officer ll and inserting the words
9 "or any other commanding officer, or any officer
serving on the staffs thereof" in place thereof.
11 (8) Section 84l(b) is amended by inserting
12 after the words "law officer" the vlords "and
13 an officer appointed as a single-officer special
14 court-martial" •
(9) Section 851 is amended-
16 (A) by str:Lld.ng out in the second sentence
17 of subsection (b) the \vords "a motion for
18 a finding of not guilty, or";
19 (B) by inserting in the third sentence of
subsection (b) after the word "trial" the
2l words "except a ruling on a motion for a
22 finding of not guilty that was granted11 ;
23 and
24 (C) b;}T adding the following new subsection:
ned) Subsections (a)" (b)" and (c) of
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this section do not apply to a
single-officer special court
martial. An officer who is appointed
as a single-officer special court
martial shall determine all questions
of law and fact arising during the
trial and" if the accused is con
Victed" adjudge and appropriate
sentence."
(10) Section 854 is amended to read as follows:
t1§ 854. Art. 54. Record of trial
"(a) Each court-martial shall make a
separate record of the proceedings of the
trial of each case brought before it. A
record of the proceedings of a trial in
which the sentence adjudged includes a
bad-conduct discharge or is more than that
't'1'hich could be adjudged by a special court
martial shall contain a complete verbatim
account of the proceedings and testimony
before the court" and shall be authenti
cated in such m~er as the President
may, by regulation" prescribe.
All other records of trial shall contain
5
1 such matter and be authenticated in
2 such manner as the President may,
3 by regulation, prescribe.
4 11 (1,) A. copy of the record of the
5 proceedings of each general and special
6 court-martial shall be given to the accused
7 as soon as authenticated. If a verbatim
8 record of trial by general court-martial is
9 not required by subsection (a), the accused
10 may buy such a record under such regulations
11 as the President may prescribe.
12 (11) Section 857 is amended by adding the
13 following new sentence at the end of sub
14 section (a):
15 "A sentence to dea.th includes forfeiture
16 of all pay and allowances and dishonorable
11 discharge. The forfeiture may apply to
18 all pay and allowances becoming due qn or
19 after the date on Which the sentence is approved
20 by the convening authority."
21 (12) Section 865 is amended-
22 (A) by amending subsection (a) to read
23 as fo1101vs:
24 ll(a) 1'lhen the convening authorit;r has
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taken final action in a general
court-martial case and the sentence
approved by him includes a bad
conduct discharge or is more than that
vhich could have been adjudged by a
special court-martial., he shall send
the entire record, including his action
thereon and. the opinion of the
staff judge advocate or legal officer,
to the appropriate Judge Advocate
General. II,;
(B) by striking out in subsection (b) the
i'Tords lito be revievled by a board of reViei.,1I
wherever they ~ppear therein; and
(C) by amending subsection (c) to reaa'as
folloVls:
lI(e) All other records of trial by
court-mE:.rtial shall be re-viei·red by-
(1) a judge advocate of the .A:r:rrry
or Air Force;
(2) an Officer of the Navy or
l~ine Corps on active duty who
is a member of the bar of a Federal
court or of the highest court of a
State; Qr
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(3) in the Coast Guard, or the
Department of the Treasury, a
law specialist or member of the
bar of a Federal court or of the
highest court of a State. 1I
(13) Section 866 is amended-
(A) by amending subsection (b) to read
as follows:
neb) The Judge Advocate General shall
refer to a board of review each record
of trial by court-martial in which t...~e
approved sentence-
(1) extends to death;
(2) affects a general or flag
officer;
(3) extends to the dismissal of a
commissioned officer or a cadet
or midshipman; or
(4) includes a dishonorable or bad
conduct discharge, or confinement
for one year or more, unless the
accused pleaded guilty to each
offense of which he "t'las found
guiJ.ty and has stated in writing
after the convening authority
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acted in his case, that he
does not desire review by a
board of revi~w. II j and
(B) by amending subsection (e) -to read as
follows:
"(e) The Judge Advocate General may
dismiss the charges whenever the board
of review has ordered a rehearing and
he finds a rehearing impracticable.
otherwise, the Judge Advocate General
shall, unless there is to be ~~ther
action by the President, the Secretary
concerned, or the Court of Military
Appeals, instruct the convening
authority to take action in accordaJ.lce
with the decision of the board of
review. If the board of review has
ordered a rehearing and tile convening
authority finds a rehearing impracti
cable, he may disntiss the charges."
(14) Section 867 is amended 'by inser-ting the
follo\n~ new sentence after the first
sentence of subsection (f):
"The Judge Advocate General may dismiss
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1 the charges whenever the Court of
2 Military Appeals has ordered a rehe~ing
3 and he finds a rehearing impra.cticable. 1I
4 (15) Section 869 is amended to read as follows:
II§ 869. Art 69. Review in the ottice of the
6 Judge Advocate General
7 "Every record of trial by court-martial
8 forwarded to the Judge Advocate General
9 under section 865 of this title (article 65),
the appellate review of which is not other
11 wise provided for by section 865 or 866 of
12 this title (article 65 or 66), shall be
13 examined in the offiCe of the Judge Advocate
ll~ General. If any part of the findings or
sentence is found unsupported in law, the
16 Judge Advocate General shall either refer
17 the record to a board of review for review
18 under section 866 of this title (article 66)
19 or talte such action in the case as a board
of review may take under section 866(c) and (d)
2l of this title (article 66(c) and (d». If
22 the record is reViewed by a board Of review,
23 there may be no further review by the Court
24 of Military Appeals, except under section
867(b)(2) of' this title (&rticle 67(b)(2»."
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(17) Section 873 is amended~-
(A) by striking out in the first sentence
after the word "wi.thin" the words lIone
year" and inserting words "two years"
in place thereof; and
(B) by striking out the last sentence and
inserting the following in place thereof:
"The board of review or the Court of
Military Appeals, as the case m.ay be,
shall determine whether a new trial,
in whole or in part, should be granted
or shall t~{e appropriate action under
section 866 or 867 of this title
(article 66 or 61), respectively.
OthenTise, the Judge Advocate General
may grant a neioT trial in ioThole or in
part or may vacate or modify the
findings and sentence in whole or in
part. II
(18) Section 895 is amended by striking out the
words "custody or confinement" and inserting the
words "physical restraintla"rfully imposed" in
place thereof.
(19) SUbchapter X of chapter 41 is amended-
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payment of which is refused by the drawee
because of insufficient funds ot the maker or
drawer in the drawee's possession or control,
is prima facie evidence of his intent to de
fraud or deceive and of his knowledge of
insuffic:tent funds in, or credit with, that
bank or other depositoryt unless the maker or
drawer paJ-"S the holder the amount due within
five days after receiving notice, orally o~ in
writing" that the checlc, draft, or order was
not paid on presentment. In this section the
"'ord 'credit t means an arrangement or under
standing, express or implied, with the bank
or other depository for the payment of,that
check, draft, Or order."; and
(B) by inserting the following new
item in the anaJ.ysis:
11923a. 123a. Making, dra"ring, or
uttering check, draft.
or order "71thout
sufficient funds. ll
SEC. 2. This Act becomes effective on the first
day of the tenth month follovring the month in which it is
enacted.
14
SEC1'IONAL ANALYSIS
of a bill
To amend title 10, United states Code, as relates to the Uniform Code of Vdlitary Justice.
Section 1(1) amends article 1 by defining the term IIconvening authorityll.
Section 1(?J. amends article 12 to provide that a member of an armed force of the United States may be confined in United States confinement facilities with members of the armed forces of friendly foreign nations.
Section 1(3) amen~article 15 to authorize a commanding officer exercising general court-martial jurisdiction to impose upon an officer of his command forfeiture of one-half of his pay per month for a period of two months. It also authorizes a commanding Officer in a grade of major or lieutenant cODjDlS.pder or above to inryose upon an enlisted man of his cODjDlS.nd for·fei ture of pot more than one-half of one month I spay or confinement for not more than sevep consecutive days.
Section 1(4) amends article 16 to prOVide that a special courtmartial shall consist of only a law officer if the accused, before the court is convened, so requests in writing and the convening authority consents thereto. However, before he makes such a request, the accused is entitled to know the identity of the la't{ officer and to have the advice of counsel.
§ection 1(2) amends articles 22(0) and 23(b) to prOVide that, except for the president, a convening authority not subordinate in command or grade to tlle accuser shall be Ilcompetent authority" within the meaning thereof, and that a court may, in any case, be convened by superior competent authority when considered deSirable by him.
Section 1(6) amends article 25(a) to provide that the officer acting as a special court-martial must have the qualifications specified for a law officer in article 26(a) and, in addition, must be certified to be qualified for duty as a single-officer special court-martial by the Judge Advocate General.
Section 1(7) extends the provisions of art~cle 37 to include staff officers serving convening authorities and commanding officers.
Section 1(8) amends article 4l(b) to prOVide that a single-officer special court-martial may be challenged only for cause.
Section 1(9) amends artiCle 5l to prOVide that the law otficer ehall rul,e vl'ith finality on a motion for a finding of not guilty~ If such a
motion is granted, however, he may not later change that ruling. It also provides that an officer acting as a special court-martial shall determine all questions of' la"., and fact arising during the trial and, if the accused is convicted, adjudge an appropr5ate sentence.
§.ecti9,n 1(1Q.L amends article 54 by requiring each court-martial to mwce a separate record of the proceedings of the trial in each case brought before it. In each case where the sentence adjudged includes a bad-conduct discharge or is more than that which coUld be adjudged by a special court-martial, a verbatim account of the proceedings and testimony must be prepared and authenticated in accordance with regulations prescribed by the PreSident. It a.J.so prOVides that if a verbatim account is not reqUired, the accused may buy such a record.
~.ion l(U) amends article 57(a) to prOVide that an accused sentenced to death forfeits all pay and allowances apd that the forfeiture may apply to all pay and allowances becoming due on or after the date the sentence is approved by the convening authori"ty.
~ction 1(12) amends article 65 to require the convening authority, when he has taken final action, to send to the appropriate Judge Advoca"te General each record of trial in which the sentence, as approved by him, inCludes a bad-conduct discharge or is more than that which could have been adjudged by a special court-mal'tial. It also deletes language implying that all records of trial by special court-martial forwarded to the Judge Advocate General under that section must be reviewed by a board of review. It also prOVides for the review and disposition Of all records of trial not otherwise prOVided for in article 65(a) and (b) •
Section (l;j) amends al'ticle 66 to provide that a record of trial, which wouid otherwise be reviewed by a board of reView because the sentence includes a dishonorable or bad.. conduct discharge or confinement tor one year or more, need not be reviewed by a board of review i.f the accused pleaded guilty to each offense of which he was found guilty and if he stated in v~iting after the convening authority acted in his case that he does not desire review· by a board of review. It also authorizes the Judge Advocate Genera]. to dismiss the Charges ".,henever he finds that a rehearing ordered by a board of review is impracticable.
?ection l(l~ amends article 67(f) to authorize the Judge Advocate General to dismiss the charges vlhenever he finds that a rehearing ordered by the Court of Military Appeals in imDracticable.
Section 1(15) amends article 69 to provide that every record forwarded to the Judge Advoca.te General und~r article 651 the appellate review for ,.,hich is not otherwise :provided by article 65 or 66, shall be
examined in the office of the Judge Advocate General. He may refer such a record to a board of revie'-T or he may take such action in the case as a board of revie'T may under article 66(c) and (d). If the record is reviewed by a board of review, there will be no further review by the Court of Military Appeals except under article 67(b)(2). '!he effect of this amendment is to require examination in the office of the Judge Advocate General of those records of trial in which the sentence includes a dishonorable or bad-conduct discharge or confinement for one year or more '\-Thich need not be reviewed by a board of review because the accused pleaded guilty.
Sectj~9~1(16) amends article 71 to provide that all portions of sentences of a court-martial may be ordered executed by the convening authority when approved by him, e~ccept tllat portion of the sentence involving death, dismissal, or dishonorable or bad-conduct diseharge or affecting a general or flag officer. It describes those authorities which must approve a sentence before it may be executed. The parenthetical phrase "other than a general or flag o:fficer ll is omitted as surplusage in view of the express provision of article 7l(a).
Section, 1~17) amends article 73 to extend the time within which the accused may petition for a new trial to two years from the date the convening authority approves the sentence, and to provide that the Court of Military Appeals and the board of review may, in addition to determining whether a new trial in whole or in part Shquld be granted, twce appropriate action under article 66 or article 67, respectively. Further, the JUdge Advocate General is authorized to grant a new trial in whole or in part, or to vacate or modify the finding~, and the sen~ tence in whole or in part.
Section 1(18) amends article 95 to remove all distinction be~leen confinement and custody.
Sect~on 1(19) inserts an additional punitive article similar to the bad-check statutes of the District of Columbia (title 2~, D. C. Code, sec. 1410) and the State of ~lissouri (Revised Statutes of Missouri 561.460, 561.470, 561.480).
Section 2 provides that these amendments become effective on the first day of the tenth month folloWing the month in which enacted.
3
14'1NElC C.
DEPARTMENT OF THE AIR FORCE
vlashlngton
Office of the Secretar,y April 14, 1959
Dear }~. Chairman:
I refer to your request for the views of the Department of Defense on H.R. 3455, S6th Congress, a bill liTo amend title 10, United States Code, in order to improve the administration 9f justice and discipline in the armed forces, and for other purposes. II The Secrett;l.ry of Defem~e has delegated to the Department of the Air Force the responsibility for expressing the views of the Department. of Defense thereon.
H.R. 3455 proposes certain amendments to the Uniform Code of 1111itary Justice (10 U.S.C. SOl et seq.) apparently designed to accomplish two basic objectives, i.e., (1) to insure that every court-martial, regardless of type, has a qualified law ofticer thereon and that an accused has the right to services of counsel; and (2) the creation of an atnlosphere completely free from@;)i possibility ot command control.
'1'0 achieve the above objectives, the bill would require the appointment of a qualified law o!ficer to all special courts-martial and divest such courts of authority to adjudge punitive discharge~; require offieers appointed as summary courts-martial to be qUalified for deta!l as law officers and establish an accuaedts right to militar.y counsel before such courts; abolish the "president of the court ll concept and vest his present functions in the law officer; empower the law officer to 'rule finally on all interlocutory questions except insanity; remove the Judge Advocates General from the oommand of their respective Chiefs of Staff ~nd place them under the direct control of the General Counsel of the Department of Defense; exc~pt for members of boards of review place all judge advocate officers under the direct command control of their respective Judge Advocates General; provide for separate promotion lists, judge advocate-composed promotion boards, and distinctive insignia for all judge advocate officers; provide that all effectiveness reports on jUdge advocate officers, except for those serving on boards of review, be renderen b,y the Judge Advocates General; remove boards of review from the offices of the Judge Advocates Gen~ral and place them under the Secretar,y of Defense with a proviso that the members thereof be rated for effectiveness b;,J" the Secretary; provide that the armed forces be divested of jurisdiction to try offenses proscribed by the Uniform Code of Military Justice, articles 1IS-1,32, in time of peace, if civilian authorities request delivetY of the accused for trial therefor; complete2y diVest the armed forces of jurisdiction to try murder and ra~ offenses; committed in tim~ of peace in the United States, by courts...ma.rtia,l; vest all pr~edural courts""lIl8rtial rule"'DJaking powers in the United State~ Court of N!l,1tary Appeals; and empower t~e United States Court ot ~alitary Appeals to determine coptroverteq que~tions of fact.
The Department of Defense is generally opposed to H.R. 3455.
The principle that law officers be appointed to all courts-martial and that accused persons before all courts-martial be afforded the right of counsel is highly impractical. During fiscal year 1955, a grand total of about 159,646 trials by special and summary courts-martial were held by the services, and it would be ma.nifestly impossible, under current or reusonably expocted manning in the foreseeable future, to provide personnel, qualifiod as law officers, in the nUmbors which would be reqUired. Spocifieo.lly, the Navy could not assign a qualified law officer to OV0ry ship; <.1.ocordingly, commanders of offenders whoso misconduot warrants more than non-judicial punishment would be faced with the impossiblo alternativQ of greatly dolaying tho proceedings or of completely foregoing appropriuto disciplinarJ action. Tho provision allowing an accused the right of representation by counsel before a summary courtmartial can be reasonably expected to result in routine requests for such oounsel by each accusod facing trial by tha.t tribuno.l. In fairness to the Government, therefore, u tr~l counsel would have to be appointed in such cases, thus inoreasing the alreaqy ~ntolero.ble manpower burden. ObViously, if tho term "counsel" is interprotud to noan judge advocate (lawyer) personnel (and the Court of Military Appeals has so interpreted it), the manpower burden would be stillfurthor magnified. Attecpted complianco with those prOVisions, utilizing presently available law officer and judge advoca.to manpower resources, would be oostly, totally unsatisfaotory, and cause gr0at delaYs in trials with r0sultantly adverse effects upon oornle.
No objection is interpos0d to extonding the pOW0rs of the law officer and releguting the presidont of tho court-nurt~al to the position of "senior nenbertt if theso provisions of the bill are linitod to general courts~~ti4l only. HowGvor, further lioiting the already soverely circunscribed powers of tho president of a. court and divesting the ranking nenber of that honorary dosignation would not substantially enhance the position of tho law officer. Those provisions aroopposed insofa.r as they apply to trials by special courts~lartial duo to the basic objection, stated above, to including a luw officer on that court.
The provisions of tho bill which w0uld p~ohibit sontences to punitive (bad conduct) discharges Qy special courts-~rtial~ und allied oinor provisions relating to the foro und disposition of that court's record of trbl, represGnt on unwarra.nted curtuilnent of the court...nurtiul's disciplinary powers. Congressioml heurings:m tho Uniforn Code of Military Justice, article 19 (10 U.S.C. 819), have hitherto established the absolute necessity for the punltiv8 dischurgo authority of special courts-ourtiul, aspecially in the ca.se of the Navy, and that urgent necessity still exists. Further, the effect of a punitive discharge adjudged by special courtsnartial upon ve'teruns' bonefits DfJ.y bo substnntia.lly less than in the case of a general court-marti~lrs sentoncG to the SUQ8 punitive discharge; thus, under tho presont syston, cortnin cases warranting a sentence to a punitive discharge, bu,t not the side effects of grunter deprivation ot veterans t
benefits, may be disposod of noru econooicn11y, und ooro beneficially to the a.ccusod, by referral to special courts-narti:ll for trt.ll. ElL"1ina.tion of this dual and real benofit, accordingly, is resisted. Although the )~r~ does not peroit lllposltion of ba.d conduct discharges by special courts-nartin1 (throU$h non-authorization of oourt reporters and verbutin rocords of trial), it is not opposed to the continued existenco of thr.t authority in the Uniforo Code of Military Justice ims.quch as the othor services have a definite need for such a.uthority.
The provisions of the bill designed to roorganize, realign, and reassign tho Judgo Adv0cutes Gunernl, thoir respective departnents, and the systeo of ra.ting and assigning subordinate judge advocate officers, apparently arc based upon the assuoption that "cOr:JI:land control" exists over courts-nartbl proceedings. This c.ssuoption is without founcution in fact; according~, such provisions of the bill as are keyed to it and calculated to olioinate so-called "conrnnd cantrell' arc unnecessary and inappropriate. It is noted that these provisions would allow tho Secretary concerned to prescribe the duties of the JU(~go Ac:vocn,te Genornl of that armed. forco; yet, the JUdge Advocatos Geno:ral wO'ijlc. be under the direct control of c.nd responsible to thoJ Ge:noral C'YQ.nsol 'Jf the Departnent of Defonse. Those provisions, of course, are inconsistont and unworkable since it is nxiomtic tha.t one cannot servo two nnsters. The provisions of the bill which would require tho Jucgo Advocates General to rate suborc.inate judgo advocato ·)f:ricers for efficiency appears to bo prenised upon tho assuoption that judge advocate officers in tho fiolc. perforn nilitary justice functions only. This c.ss't1f.1ption is unfouncod s!nce field jUdge adv0cc.te officers perforn nLi~y and varied functions for their coonan1ors which urc not directly related to 8ilit~ry
justicemtters. Such being the casu, the Judge Advoc:.l.tes Genorul could not p::lssibly b.:: awaro of all the functions perfornec1 ane: coul·i not, in fairness to 0.11 concernerl, properly discharge these rating requirenents if they aru iDposec~ upon then. Generally, the apparent desire to reorganize the structure of the Juc.go A(~v'Jcate GonoraJ. dcpartnents ignores the inportant fact tha.t the respective Ju:.1ge Advocates General perform a creat runy c1utios not connected with ilUitary justice. Further, denying the Judge Advocates General the right to appoint board of review m.emoors would undul:l restrict their as~ignnent authority, control of personnel, and seriously iopuir, if not prohibit, their ability t8 perforn their stututory duty, i.~., the aililini~trntion of nilitar; justice within tho respective arced forces.
The draft bill provides that tho rules of procedure .~y be prescribed by the Court of Military Appools; that the rules of procedure shall apply tho principlos of law nne rules of evidonce applicable to the trial of crioinal Cases in tho Unitod States District Court for the District ofCo1unbia; a.nd that, with certain exceptions, all questions of evidence shull be decided in accorc1n.pce with the rules applied in the trial ofcrioino.l cases in tho Unitecl States District Courts. Substantive principles of military la.w have evolved over Po poriod of years fron rdlitary
3.
custoD, experience, and tho goneral principles applied by Federal courts everywhere. Adoption of thoso rules nnd concepts applicable only to the District of Colunbia would Doan abanc1:Jnnont of tL~8-testO(: thoorios in favor of concepts designod to fit the neo·,ls of one srmll enclave. A single example is the insanity test adopted in the District in United States v. ~~, 214 F. 2d 862 (App. D. C., 1954), which has been rejected by the United States Court of Military Appeals and by the appellate benches of alrlost every state in the Nation. It would. seen far better to leave tho drafters of rules of procedure unfettered by predeter~inod
concepts of a single jurisdiction anc to insist only that thoy be GUidod insofar as practicable by those principles applicable to Federal prosecutions generally. The previsions relating to civilian rulos of evidence do not always fit the nilitary situation. For exanple, the Federal law relating to searches and seizures is ill-adapted to the invGstigation of crine in overseas areas whore there are no United States courts or conaissioners fron whon warrants my be obtaine:l. CO:lsidor also the effect upon the services of the rule excluding confessions becauso of unduly dolayed arraignocnt (I1l11ory v. Unitod States, 354 U. S. 499 (1957); McNabb v. United States, 318 U.S. 332 (1943)). Congress has recognized this need for certain deviations fron the Federal rul0s, o.nd it nllowed therefor by provicing that tho President could apply the principles or law and rules of evidence used in the United States district courts only "So far as he considers practicable." Further, this would constituto an unwarranted and unauthorized invasion of tho constitutional authority of the President as CC~JDunder-in-Chief of the arned f0rces. Under the present systen, the United States Court of I~litary Appe~ls is in a position to express its opinion to the Prosident with respect to his regulation-naking authority and, further, the Court of Military Appeals ultimtely judicially detorninos whethor they are legally consistent with the Uniforn Code of lulitary Justice. The provisions of the bill Which would nuthori~e tho Unitod Statos Court of Military Appeals to judBe the credibility of witnosses and cotarnine controvorted questions of fact would grant tho court powers not usually oxercised by Dest appellate courts, including the United States Supreue Court. Previous hearings on sinilar lecislative proposals havo rosulted in rejoction of this idea, and there is no indication that the Court itself cosires this authority.
The inflexible requireneIlt in the bill for the surrenc.er of nilitary personnel in the United States for trial by civil courts in all cases in which requests therefor are mde, night well result in niscarriages of justice. There lJay be cases in which servicenen should not be relollsed to civilian authorities for good and sufficient reasons. Further, experience has shown that there ure cases in which nili~ary jurisdiction is certain and a particular civilian courtls j~ris~iction questionable9 In addition, the bill ienoros fiscal aspects, inclwlinc pay, line-or-duty status, c.1eath eratuitic:Js, etc., of servicerwn who Day ;)e beld for long periods of tiJo by civilidn authoritiGs. This would present nany problens concerning troop utili~ation, particular~T in the case of servicemen
who nay have been plncc~ uncer bond by a civil court or agency. In defense of the present system, which c0ntonplatos close cocperntiJn between nilitary and civil authorities, present working arraneenents are deened satisfactory in the view of the military, inasnuch as there has been an absence of complaints to the contrar; by civilian authorities. The provisions of the bill which would deny nilitary courts jurisdiction to try servicemen for rape or murder committed in time of peace in the United States are likewise opposed.
In summation, H.R. 3455 would not facilitate the administration of the armed forces military justice programs, nor would it, in any material respect, add to the safegLU.rds presently available to accused persons under the Uniform Code of Military Justice. On the contrary, its enactment would result in greater delays in the disposition of disciplinary matters, further derogation of conuna.nders 1 disciplinary powers, and, it is believed, would result in a system of justice which would be unwieldly in time of peace and unworkable in time of war or national emergency.
Since the enactment of this legislation would call for an increase in the number of law officers assigned to the various military departments, there would be an increase in budgetary requirements. However, it is not possible at this time to estimate the increase in cost with accuracy.
On 11 December 1958, this Department, on behalf of the Department of Defense, submitted a legislative proposal and draft bill to the Congress, providing omnibus amendments to the Uniform Code of Hilitary Justice. You will recall, of course, that you introduced the Department of Defense bill and that the resulting bill, H. R. 3387, has been referred to your Committee. H. R. 3387 is the product of several years of study by the Department of :cafense, by the Treasury Department on behalf of the Coast Guard, and by the Court of £u1ita~J Appeals. It provides for more prompt and more efficient administration of justice, both from the standpoint of the individual and the Government and, therefore, this Department urges its enactment.
This report has been coordinated within the D3partment of Defense in accordance with proced~res prescribed by the Secretary of Defense.
The Bureau of the Budget has advised that there is no objection to the submission of this report.
Sincerely yours,
/s/ James H. Douglas
Honorable Carl Vinson Chairman, Committee on Armed
Services House of Representativ~s
5.
ANNEX D.
Aoomparative table of the proposed
amendments to tne Uniform Code of
rftlitary Justice oontained in the
Omnibus Bill and the American Legion
Bill with the present articles of the
Code.
CO
MPA
RA
TIV
ETA
BLE
OF
PRES
ENT
AR
TIC
LE
SO
FU
CM
J,O
MN
IBU
SA
MEN
DM
ENTS
,A
ND
AM
ERIC
AN
LEG
ION
AM
END
MEN
TS
Uni
form
.C
ode
of
Mil
itary
Just
ice
B8o
l.A
rtic
le1
.D
efi
nit
ion
s.In
this
ch
ap
ter:
**
**
(lO
)"L
awO
ffic
er"
mea
nsan
off
icia
lo
fa
gen
era
lco
urt
-mar
tiaJ
.d
eta
iled
inac
cord
ance
wit
hse
cti
on
826
of
this
titl
e(a
rtic
le26
).
8806
.A
rt.
6.
Judg
eA
dvoc
ates
and
Le
ga
lO
ffi
~.
{a}
The
assi
gn
men
tfo
rd
uty
of
all
jud
ge
adv
oca
tes
of
the
Arm
yan
dA
irF
orc
ean
dla
wsp
ecia
lill
tso
fth
eN
avy
and
Co
ast
Gua
rdsh
all
bem
ade
upon
the
recC
lllD
Den
datio
no
fth
eJu
dge
Adv
ocat
eG
ener
alo
fth
ear
med
forc
eo
fw
hich
they
are
mem
bers
.T
he
Jud
ge
Adv
ocat
eG
ener
alo
rse
nio
rm
embe
rso
fh
issta
ffsh
all
mak
efr
e
qu
ent
insp
ecti
on
sin
the
field
insu
per
vis
ion
of
the
ad
min
istr
ati
on
of
mil
itary
just
ice.
(b)
Con
veni
ngau
tho
riti
es
shall
at
all
tim
esC
CIII
IIlU
Dic
ate
dir
ectl
yw
ith
their
.sta
ffju
dg
ead
vo
cate
so
rle
gal.
off
icers
inm
att
ers
rela
ti
ng
1;0
the,
ac1
min
istr
atio
no
fm
ilit
ary
just
ice;
and
the
sta
ffju
dg
ead
vo
cate
or
leg
al
off
icer
of
8D7
caD
III8
lldis
en
titl
ed
toco
mm
unic
ate
dir
ectl
yw
ith
the
sta
ffju
dg
ead
vo
cate
or
leg
al.
off
icer
of
asu
peri
or
or
sub
ord
inat
eC
OIID
8Dd,
or
wit
hth
eJu
dg
eA
dvoc
ate
Gen
eral
.(c
)N
op
erso
n'W
hoh
asacte
das
mem
ber,
law
o:f
't1
cer,
tria
lco
un
sel,
ass
ista
nt
tria
lcO
UQ
sei,
defe
nse
co
un
sel,
ass
ista
nt
def
ense
cOU
Q
sel,
or
inv
esti
pti
ng
off
icer
inan
yca
sem
ayla
ter
act
asa
sta
ffju
dg
ead
vo
cate
or
leg
al
o:f'
t1ce
rto
8D7
rev
iew
J.n
gau
tho
rity
upon
the
sam
eca
se.
omni
bus
Am
endm
ents
Add
:(1
3)
"Con
veni
ngA
uth
ori
ty"
mea
nsth
ep
erso
nw
hoco
nven
edth
eco
urt
,a
cOD
llllis
sion
edo
ffic
er
com
m
andi
ngfo
rth
eti
me
bei
ng
,a
succ
esso
rin
com
m
and,
or
any
off
icer
ex
erc
isin
gg
ener
alco
urt
m
art
ial
juri
sdic
tio
n. NO
CHA
NG
E
Am
eric
anL
egio
nA
men
dmen
ts
(10)
''Law
Off
icer-
mea
nsan
off
icia
lo
fa
gen
eral
or
specia
lco
urt
-mart
ial
deta
iled
inac
cord
ance
wit
hse
cti
on
826
of
this
titl
e.
(art
icle
26
).
8806
•.A
rt.
6.
Jud
ge
Adv
ocat
esan
dL
egal
Of
ficers
.(a
)T
heas
sig
nm
ent
for
du
tyo
fa
llju
dg
ead
vo
cate
so
fth
eA
rmy
and
Air
Fo
rce
and
law
specia
list
so
fth
eN
avy
and
Co
ast
Gu
ard
shall
be
mad
eup
onth
ere
com
men
dati
ono
fth
eJu
dge
Adv
ocat
eG
ener
alo
fth
ear
med
forc
eo
fw
hich
they
are
mem
bers
.Ju
dge
ad
vo
cate
so
fth
eAr
m.y
and
Air
Fo
rce
and
law
specia
list
so
fth
eN
avy
and
Co
ast
Gu
ard
,ex
cep
tw
hen
serv
ing
on
ab
oar
do
fre
vie
w.
shall
be
rate
dfo
rfi
tness
.eff
icie
ncy
.an
dp
erfo
rman
ceo
fd
uty
on
lyb
yth
eJU
dge
Adv
ocat
eG
ener
alo
fth
ear
med
forc
eo
fw
hich
they
are
mem
bers
.**
**
/
Ba1
2.A
rt.
12
.C
onf:
J.ne
men
tw
ith
Enem
yPriso~ers
18
12
.A
rt.
12
.C
on:f
'1ne
men
tw
ith
Enem
yP
riso
ners
NOCH
ANGE
Pro
hib
11
;ed
.N
om
embe
ro
fth
ear
med
forc
es
may
Pro
hib
ited
.N
om
embe
ro
fth
ear
med
forc
es
of
the
be
p1.a
ced
inco
nf1
nem
ent
inim
med
iate
ass
ocia
-U
nit
edsta
tes
may
be
pla
ced
inco
nf:J
.nem
ent
inim
-ti
on
wit
hen
emy
pri
son
ers
or
oth
er
fore
ign
med
iate
ass
ocia
tio
nw
ith
enem
yp
riso
ners
or
oth
er
I18.
tion
aJ.s
no
tm
embe
rso
fth
ear
med
forc
es.
fore
ign
nat
ion
al.s
no
tm
embe
rso
fth
ean
ned
forc
es
of
the
Un
ited
Sta
tes,
exce
pt
am
embe
ro
fth
ear
med
forc
es
of
the
Un!
ted
Sta
tes
may
be
con
fin
edin
Un
ited
Sta
tes
con
fin
emen
tfa
cil
itie
sw
ith
mem
bers
of
the
arm
edfo
rces
of
frie
nd
lyfo
reig
nn
ati
on
s.
1I1:
U4.
Art
.1
4.
Deli
very
of
Off
end
ers
toC
ivil
NOCH
ANGE
Btl
14.
Art
.1
4.
Del
iver
yo
fO
ffen
der
sto
Au
tho
riti
es.
la}
Und
ersu
chre
gu
lati
on
sas
the
Civ
ilA
uth
ori
ties.
(a)
Am
embe
ro
fth
eS
ecre
tary
con
cern
edm
ayp
resc
rib
e,
am
embe
ro
far
med
forc
es
accu
sed
of
ano
ffen
seag
ain
stth
ear
med
·fo
rces
accu
sed
of
ano
ffen
seag
ain
stth
ela
ws
of
the
Un
ited
Sta
tes
or
of
aS
tate
civ
ilau
tho
rity
may
be
deli
vere
d,
upon
req
uest
,o
ro
f,a
Terr
ito
ryo
ro
fth
eD
istr
ict
of
toth
eciv
ilau
tho
rity
for.
tria
l.C
olum
bia
sh
all
,ex
cep
tin
tim
eo
fw
ar.
be
(b)
'Whe
nd
eli
very
un
der
this
art
icle
ism
ade
deli
vere
d,
upon
pro
per
req
uest
.to
the
civ
ilto
any
civ
ilau
tho
rity
of
ap
erso
nu
nd
erg
oin
gau
tho
rity
for
tria
l.N
o~rsonsha1l~-
sen
ten
ceo
fa
co
urt
-mart
ial,
the
deli
very
,if
cep
tin
tim
eo
fw
ar,
be
trie
dfo
ran
yo
f-fo
llo
wed
by
co
nv
icti
on
ina
civ
iltr
ibu
nal.
,in
-fe
nse
com
mit
ted
wit
hin
the
Un
ited
Sta
tes
terr
up
tsth
eex
ecu
tio
no
fth
ese
nte
nce
of
the
pu
nis
hab
leby
.se
cti
on
s9
18
-93
2(A
rtic
les
co
urt
-mart
ial,
and
the
off
en
der
aft
er
hav
ing
ll8
-1E
),in
clu
siv
e.if
.p
rio
rto
arr
aig
n-
answ
ered
toth
eciv
ilau
tho
riti
es
for
his
off
en
sem
ent
bef
ore
aco
urt
-mart
ial.
the
civ
ilsh
all
,up
onth
ere
qu
est
of
com
pet
ent
mil
itary
au
tho
rity
hav
ing
juri
sdic
tio
nto
try
him
for
au
tho
rity
,b
ere
turn
ed
tom
ilit
ary
cust
od
yfo
ra
sub
stan
tiall
ysi
mil
ar
off
en
seu
nd
erth
eth
ecan
ple
tio
no
fh
isse
nte
nce.
law
so
fth
eU
nit
edS
tate
so
ro
fa
Sta
teo
ro
fa
Terr
ito
ryo
ro
fth
eD
istr
ict
of
Col
um-
bia
req
uest
sd
eli
ver
yo
fth
at
per
son
for
tria
l.**
*IR
SJ.:)
.A
rt.
15
.C
oDID
andi
np;
Off
icer'
sN
on
jud
icia
lgl
j15.
Art
.1
5.
Com
man
ding
Off
icer'
sN
on
jud
icia
lNO
CHAN
GEP
uDis
bmen
t.(a
)U
nder
such
reg
ula
tio
ns
as
the
Pu
nis
hm
ent.
(a)
Und
ersu
chre
gu
lati
on
sas
the
Pi'
esta
ent"
may
pre
scri
be,
any
com
man
ding
off
icer
Pre
sid
en
tm
ayp
resc
rib
e,
any
com
man
ding
off
icer
may
,in
add
!tio
nto
or
inli
eu
of
adm
on
itio
no
rm
ay,
inad
dit
ion
too
rin
lieu
of
adm
on
itio
nre
pri
man
d,
impo
seon
eo
fth
efo
llo
win
gd
isci-
or
rep
rim
and
,im
pose
one
of
the
foll
ow
ing
dis
ci-
pll
Il8
.ry
pu
nis
hm
ents
for
min
or
off
en
ses
wit
ho
ut
pli
nary
pu
nis
hm
ents
for
min
or
off
en
ses
wit
ho
ut
the
inte
rven
tio
no
fa
co
urt
-mart
ial-
-th
ein
terv
en
tio
no
fa
co
urt
-m&
rtia
l--
(1)
upon
off
icers
of
his
com
man
d--
(1)
upon
offic~rs
of
his
com
man
d--
(A)*
**
(A)*
**
Z--
e
mart
ial.
)v
enin
gau
thQ
rity
-has
con
sen
ted
there
to;
and
(3)
IIU
JIII
II8r
yco
urt
s-m
art
ial,
cons
isto
lDg
of'
one
com
mis
sio
ned
'of'
f'1
cer.
(c)if
impo
sed
by
ano
ffic
er
ex
erc
isin
g(C
)if
impo
sed
by
ano
ffic
er
ex
erc
isin
gNO
CHAN
GEg
ener
alco
urt
-mart
ial
juri
sdic
tio
n,
for-
gen
eral
co
urt
-mart
ial
juri
sdic
tio
n,
f'o
r-fe
itu
reo
fn
ot
mor
eth
an
on
e-b
alf
of
one
feit
ure
of
no
tm
ore
than
OD
eba
J.:f'
of
h:l.s
mon
th•s
pay
;an
dp
ayp
er
mon
thfo
ra
peri
od
of'
no
tm
are
-(2
)up
ono
ther
mil
itary
per
son
nel
of
his
com
-th
antw
om
on
ths;
and
d--
****
(2)
upon
oth
er
mil
itary
per
son
nel
of'
h:l.s
(E)
if'
impo
sed
up
on
ap
erso
natt
ach
ed
too
rco
mm
and-
-****
emba
rked
ina
vess
el,
con
fin
emen
tfo
rn
ot
(E)if
impo
sed
upon
ap
erso
natt
ach
ed
tom
ore
than
sev
enco
nse
cuti
ve
day
s;o
ro
rem
bark
edin
av
ess
el,
conf
'inem
ent
f'o
r(F
)if
imp
ose
dup
ona
per
son
att
ach
ed
too
rn
ot
mor
eth
an
sev
enco
nse
cuti
ve
day
s;em
bark
edin
av
ess
el,
con
fin
emen
ton
bre
ad(F
)if
impo
sed
upon
ap
erso
natt
ach
ed
toan
dw
ater
or
dim
inis
hed
rati
on
sfo
rn
ot
mor
eo
rem
bark
edin
av
ess
el,
con
fin
emen
to
nth
an
thre
eco
nse
cuti
ve
day
s.b
read
and
wat
ero
rd
imin
ish
edra
tio
ns
for
no
tm
ore
than
thre
eco
nse
cuti
ve
daY
lS;
(G)
if'
impo
sed
by
ano
:rf'
icer
ina
grad
eab
ove
cap
tain
or
lieu
ten
an
t,fo
rfeit
ure
of'
no
tm
ore
than
on
e-b
alf'
of'
one
mon
this
pa;y
;I
or (H
)if
impo
sed
by
ano
ffic
er
ina
gra
de
abov
ecap
tain
or
lieu
ten
an
t,co
n:1'
1nem
ent
for
no
tm
ore
than
sev
enco
nse
cuti
ve
day
s.
ftti1
6.A
rt.
16
.C
ou
rts-
Mar
tial
Cla
ssif
ied
.T
he[l
R)l
b.A
rt.
lb.
Co
urt
s-M
arti
alC
lass
ifie
d.
The
thre
e88
16.
Art
.1
6.
Co
urt
s-M
arti
alC
lass
ifie
d.
thre
ek
ind
so
fco
urt
s-m
art
ial
inea
cho
fth
ear
med
kin
ds
of
co
urt
s-m
art
ial
ine
ach
of'
the
axm
edf'
orc
esT
heth
ree
kin
ds
of
co
urt
s-m
art
ial
inea
chfo
rces
are
--are
--of
'th
ear
med
forc
esare
--(1
)g
ener
alco
urt
s-m
art
ial,
co
nsi
stin
go
fa
(1)
gen
eral
co
urt
s-iu
art
ial,
,co
nsi
stin
go
fa
I(1
)g
ener
alco
urt
s-m
art
ial,
co
nsi
st-
law
off
icer
and
no
tle
ssth
an
fiv
em
embe
rs;
law
off
icer
and
no
tle
ssth
an
fiv
eJD
eIII
\lers
;I
ing
of
ala
wo
ffic
er
and
no
tle
ssth
anfi
ve
(2)
specia
lco
urt
s-m
art
ial,
co
nsi
stin
go
fn
ot
(2)
specia
lco
urt
s-m
arti
al.
co
nsi
stin
gof
'1
mem
bers
;le
ssth
anth
ree
mem
bers
;an
dn
ot
less
tha
nth
ree
JDel
llber
so
ro
nly
of'
ala
wo
f'-
i(2
)sp
ecia
lco
urt
s-m
art
ial,
co
nsi
st-
(3)
Sl.lJ
llllll
U'Y
co
urt
s-m
art
ial,
co
nsi
stin
go
ffi
cer
who
iscert
ifie
dto
be
qrn.
.ttfi
ed
for
du
tyI
ing
of
ala
wo
ffic
er
and
no
tle
ssth
anth
reon
eco
llll
llis
sion
edo
f'f'
1ce
r.as
asi
ng
le-o
f'f'
1ce
rsp
ecia
lco
urt
-mar
tial
.b
yth
e,
mem
bers
;an
dJu
age
Adv
ocat
eG
ener
alo
fth
ear
med
f'o
rce
of'
whi
chI
(3)
sum
mar
yco
urt
s-m
art
ial,
co
nsi
st-
he
isa
mem
ber
if',
bef
ore
the
co
urt
isco
nv
ened
,Ii
ng
of
one
com
mis
sion
edo
ffic
er.
the
accu
sed
,kn
owin
gth
eid
en
tity
of'
the
law
off
icer,
I(N
ote
.S
ee
Am
eric
anL
egio
nIll
IIen
dmen
tto
and
upon
adv
ice
of
co
un
sel,
req
uest
sin
vri
t!n
ga
sec:
825
(Art
.25
),in
tra,
con
cern
ing
co
urt
Com
pose
do
nly
of
ala
wo
f'f'
1ce
ran
d'th
eco
n-
leg
al
qu
ali
ficati
on
so
fa
sl.lJl
lllllU
'Yco
urt
-
ma
n
il.9.
Art
.~9.
Juri
sdic
tio
no
fS
pec
ial
Co
urt
s-NO
CHAN
QE\1
lfl19
.A
rt.
'9.
Ju
rlo
dic
ti=
of
Sp
ecia
lC
ou
rt.-
ial~
SU
bje
ctto
secti
on
8~7
of
this
tit~e
Mart
ial.
Su
bje
ctto
secti
on
817
of
this
tit~e
(art
icle
~7),
specia
lcourts~ial
have
jur-
(art
icle
17
),sp
ecia
lco
urt
s-m
arti
tl.1
have
sdic
t10
nto
try
per
son
ssu
bje
ct
toth
isch
apte
rIj
uri
sdic
tio
nto
try
per
son
ssu
bje
ct
toth
isch
ap-
for
any
no
nca
pi"
tal
off
ense
mad
ep
un
ish
able
by
Iter
for
an;r
no
nca
pit
alo
ffen
seD
ia.de
pu
nis
hab
leth
isch
ap
ter
and
,u
nd
ersu
chre
gu
lati
on
sas
the
jby
this
chap
ter
and
,u
nd
ersu
chre
gu
lati
on
sas
Pre
sid
en
tm
ayp
resc
rib
e,
for
cap
ital
off
en
ses.
\th
eP
resi
den
tm
ayp
resc
rib
e,
for
cap
ital
of-
Sp
ecia
lcourts~1al
may
,u
nd
ersu
chl1
m1t
a-
ifen
ses.
Sp
ecia
lco
urt
s-m
art
ial
may
,u
nd
ersu
chti
on
aas
the
Pre
sid
en
tm
ayp
resc
rib
e,
adju
dg
e!1
l1m
1tat
ions
as
the
Pre
sid
en
tm
ayp
resc
rib
e,
any
pu
nis
hm
ent
no
tfo
rbid
den
by
this
chap
ter
adju
dg
ean
y·p
un
ish
men
tn
ot
forb
idd
enb
yth
isex
cep
td
eath
,d
ish
on
ora
ble
dis
char
ge,
dis
mis
sal,
chap
ter
exce
pt
dea
th,di~charge,
dis
mis
sal,
conf
'inem
ent
for
mor
eth
ansi
xm
on
ths,
har
d::L
a.bo
rco
nfi
nem
ent
for
mor
eth
ansi
xm
on
ths,
har
dla
bo
rw
ith
ou
tco
nf'in
emen
tfo
rm
ore
tha
nth
ree
mo
nth
s,~
tho
ut
con
fin
emen
tfo
rm
ore
tha
nth
ree
mo
nth
s,fo
rfeit
ure
of
pay
exce
edin
gtw
o-t
hir
ds
pay
per
f'o
rfeit
ure
of
pay
exce
edin
gtw
o-t
hir
ds
pay
per
mo
nth
,o
rfo
rfeit
ure
of
pay
for
mor
etb
aQ.
six
lIlo
nth,
or
forf
eit
ure
of
pay
for
mor
eth
ansix
mo
nth
s.A
bad
-co
nd
uct
dis
char
ge
may
no
tb
ead
-n
on
ths.
jud
ged
un
less
aco
mp
lete
reco
rdo
fth
ep
roce
ed-
No
te.
Wor
d"d
ish
on
ora
ble
"an
dla
st
sen
ten
cein
pan
dte
stim
on
yb
efo
reth
eco
urt
has
bee
nm
ade.
dele
ted
.)
16
22
.A
rt.
22
.W
hom
ayco
nven
egene~
co
urt
s-ltJ22~
Art
.2
2.
Who
may
conv
ene
gen
eral
co
urt
s-NO
CHAN
GEm
art
ial.
****
.****
(b)If
any
such
com
man
ding
off
icer
isan
ac-
b)
If8
QY
per
son
des
crib
edin
sub
sect
ion
(a)
cu
ser,
the
co
urt
·s~
be
conv
ened
by
sup
erio
rth
eco
nveI
11Im
au
tho
rity
).ex
cep
tth
eP
resi
-ca
np
eten
tau
tho
rity
,an
dm
ayin
any
case
be
den
to
fth
eU
nit
edS
tate
s,is
anaccu
ser,
the
conv
ened
by
such
au
tho
rity
ifco
nsi
der
edco
urt
mus
tb
eco
nven
edb
ya
com
pet
ent
au
th-
desirab~e
by
him
.o
rity
no
tsu
bo
rdin
ate
incO
Illll8
lldo
rg
rad
eto
the
accu
ser,
and
may
inan
yca
seb
eco
n-
ven
edb
ya
sup
eri
or
com
pet
ent
au
tho
rity
.
1182
3.A
rt.
23
.W
hom
ayco
nven
esp
ecia
lco
urt
s-10
23.
Art
.2
3.
Who
may
conv
ene
specia
lco
urt
s-NO
CHAN
GE
mart
ial.
**
**
mart
ial.
'**
**
(b)
If
any
such
off
icer
isan
accu
ser,
the
co
urt
(b)If
8Q
Yp
erso
nd
escr
ibed
insu
bse
ctio
n(a
)sb
all.
be
conv
ened
by
sup
eri
or
caa,
pet
ent
au
tho
rity
,(t
he
conv
eni.
Iut
au
tho
rity
).ex
cep
tth
eP
resi
den
tan
dm
ayin
any
case
be
conv
ened
by
such
au
tho
rity
of
the
Un
ited
Sta
tes,
isan
accu
ser,
the
cou
rtif
con
sid
ered
adv
isab
leb
yh
im.
mus
tb
eco
nven
edb
ya
can
pet
ent
au
tho
rity
no
tsu
bo
rdin
ate
incO
llllB
Dd
or
grad
eto
the
accu
ser,
and
may
inan
yca
seb
eco
nven
edb
ya
sup
eri
or
com
pet
ent
au
tho
rity
.
i18 Ma
rt
1824
-.A
rt.
24-.
Who
may
conv
ene
sUlll
llllU
"yco
urt
s-NO
CHAN
GE1
82
4.
Art
.2
4.
Who
may
conv
ene
SU
IJIl
IIa
ry
iaJ..
**
**
co
urt
s-m
art
ial.
**
**
(b)
1Il
en
on
lyo
ne
cam
aiss
ion
edo
ffic
er
is(b
)W
hen
on
lyon
ecO
llll
l1ss
ione
do
ffic
er
is~sent
wit
ha
cOlll
lll8.
l1d
or
\let
achm
ent
he
shal
l.p
rese
nt
wi.t
ha
cClll
lll8!
ldo
rd
etac
hm
ent,
sum
-th
eS
UII
IIJI
ary
co
urt
-mart
ial
of
that
com
man
dm
ary
co
urt
s-m
art
ial
shal
l.b
eco
nven
edb
yo
rd
etac
lmen
tan
dsh
all.
hea
ran
dd
eter
min
ea
llsu
peri
or
com
pet
ent
au
tho
rity
.S
UII
Imar
yco
urt
s-s~
co
urt
-mart
ial
case
sb
rou
gh
tb
efo
reh
im.
mart
ial
may
,ho
wev
er,
be
conv
ened
inan
yca
se.
SU
IaD
ILry
co
urt
s-m
art
ial
11III.
1',ho
wev
er,
beconvene~
inb
ysu
peri
or
ccm
pet
ent
au
tho
rity
whe
nco
nsi
der
ed8.
nyca
seb
ysu
peri
or
ccm
pet
ent
au
tho
rity
whe
nd
esi
rab
leb
yh
im.
cOD
sid
ered
desi
rab
leb
yh
im.
lIt)
25.
Art
.2
5.
Who.,
serv
eon
co
urt
s-18
025.
Art
.12.
Who
may
serv
eo
nco
urt
s-80
25.
Art
.2
5.
Who
may
serv
eon
co
urt
s-m
art
ial.
mart
ial.
(a)
An
ycO
llll
l1ss
ione
do
ffic
er
onacti
ve
mart
ial.
(aA
ny
com
mis
sion
edo
ffic
er
on
(a)
Any
cOll
lll1
ssio
ned
off
icer
onacti
ve
du
tyd
uty
isel1
glb
leto
serv
eo
na
llco
urt
s-m
art
ial
acti
ve
du
tyis
el1g
1.bl
eto
serv
eon
all
isel
1g1.
ble
tose
rve
ong
ener
alan
dsp
ecia
l,fo
rth
etr
ial
of
any
per
son
who
may
law
t'ulJ
.yb
eb
rou
gh
tco
urt
s-m
art
ial
for
the
tria
lo
fan
yp
er-
co
urt
s-m
art
ial
for
the
tria
lo
fan
yp
erso
nw
ho
bef
ore
such
co
urt
sfo
rtr
ial.
son
who
may
law
t'ulJ
.yb
eb
rou
gh
tb
efo
resu
chm
ayla
wt'u
lJ.y
be
bro
ug
ht
bef
ore
such
co
urt
sfo
r(d
)*
**
*.
co
urt
sfo
rtr
ial.
How
ever
,to
be
el1
glb
letr
ial•
(2)
Whe
nco
nv
enin
ga
co
urt
-mart
ial,
.th
eco
nv
en-
for
app
oin
tmen
tas
asi
ng
le-o
ffic
er
(d)
**
**
ing
au
tho
rity
shall
deta
ilas
mem
bers
there
of
such
specia
lco
urt
-mart
ial,
the
off
icer
IIIIlS
1;(2
)W
hen
con
ven
ing
aco
urt
-mart
ial,
the
con
-II
IeII
lber
so
fth
ear
med
forc
esas,
inh
iso
pin
ion
,are
have
the
qu
ali
ficati
on
ssp
ecif
ied
for
aile
nin
gau
tho
rity
shal
l.d
eta
ilas
mem
bers
best
qu
ali
fied
**
*.N
om
embe
ro
fan
arm
edfo
rce
law
off
icer
inse
cti
on
B2
6(a
)o
fth
isti
tle
there
of
such
mem
bers
of
the
arm
edfo
rces
as,
ise1
1g
lble
tose
rve
as
am
embe
ro
fa
gen
eral
or
(art
icle
26
{a»
and
!DU
stb
ecert
ifie
dto
be
inh
iso
pin
ion
,are
best
qu
ali
fied
**
*.N
osp
ecia
lco
urt
-mart
ial
whe
nh
eis
the
e.cc
user
or
aq
uali
fied
for
du
tyas
asi
ng
leo
ffic
er
mem
ber
of
anan
ned
forc
eis
eli
gl.
ble
to.s
erv
ew
itn
ess
for
the
pro
secu
tio
no
rh
asacte
das
inv
est
i-sp
ecia
lco
urt
-mart
ial
by
the
Judg
eA
dvoc
ate
as
am
embe
ro
fa
co
urt
-mart
ial
whe
nh
eis
the
gati
ng
off
icer
or
as
coU
Dse
lin
the
B8IIl
ecase
.G
ener
alo
fth
ear
med
forc
eo
fw
hich
he
isa
accu
ser
or
aw
itn
ess
for
the
pro
secu
tio
no
rm
embe
r.h
asacte
das
inv
est
igati
ng
off
icer
or
as
---
cou
nse
lin
the
sam
eca
se.
(e)
The
au
tho
rity
con
ven
ing
as'-
ry
co
urt
-m
art
ial
shal
l.d
eta
ilas
SU
llllll!l
.ry
co
urt
-mart
ial
acO
llll
l1ss
ione
do
ffic
er
qu
ali
fied
tob
ed
e-
tail
ed
as
the
law
off
icer
of
a;n
era
J.co
urt
-m
art
ial
asp
rov
ided
inse
cti
on
26
of
this
tUle
(art
icle
26
).
1826
.A
rt.
26
.L
awo
ffic
er
of
ag
ener
alco
urt
-NO
CHAN
GE1
82
6.
Art
.2
6.
Law
off
icer
of
ag
ener
alco
urt
-m
arti
al..
(a)
Th
eau
tho
rity
con
ven
ing
ag
ener
alm
art
ial.
(a)
The
au
tho
rity
con
ven
ing
ag
ener
alco
urt
1ll
rt1
aJ.
shall
deta
ilas
law
off
icer
Iorspec1
aJ.
oo
urt
....
,..i
Bl
ob
all
deta
ilas
laY
there
ot
aC
OII
Dis
sion
edo
ffic
er
who
isa
mem
ber
off
icer
there
of
acO
llll
l1ss
ione
do
ffic
er
who
iso
f1:
beb
ar
of
aF
eder
alco
urt
or
of
the
hig
hest
.am
embe
ro
fth
eb
ar
of
aF
eder
alco
urt
or
of
co
urt
'of
aS
tate
and
wh
ois
cert
ifie
dto
be
the
hig
hest
cou
rt,o
fa
Sta
tean
dw
hois
cert
i-qu
alJ.
:t1e
dfo
rsu
chd
uty
by.t
he
Jud
ge
Adv
ocat
e::
:tie
d*
**.
0'
mar
t
Gel
lera
lo
fth
ean
Ded
forc
eo
fw
b1ch
he
is1J
,
MII
1Ier
.N
op
erso
nis
·ell
glb
J.e
toact
asla
wo
fft.
cer
ina
case
if
he
is'\;
heac
cuse
ro
ra
Wi1
iDes
sfo
rth
ep
rose
cuti
on
or
ha
sacte
das
inv
est
igati
ng
of'
f'1
cer
or
ascouns~l
inth
es_
case
.(b
)'!'
bela
wo
f'f'
1ce
rm
ayn
ot
con
sult
Wit
hth
e_
ben
of
the
co
urt
,o
ther
thaD
onth
efo
rmo
tth
ef'
1Il
din
gs
as
pro
vid
edin
secti
on
839
oft
h1
sti
tle
(art
icle
39),
exce
pt
inth
ep
rese
nce
of
the
accu
sed
,·tr
ial
cou
nse
l,an
dd
efen
secO
UD
Se1,
no
r..
.yh
ev
ote
wit
hth
em
embe
rso
fth
eco
urt
.
1821
.A
rt.
27.
Deta
ilo
ftr
ial
cou
nse
lan
dd
eteD
seC
OU
DSe
l..(a
)F
or
each
gen
eral
and
spacia
lco
urt
-mart
ial
the
au
tho
rity
con
ven
in
gth
eco
urt
sbal1
deta
iltr
ial
cou
nse
lan
dde
f'eD
seco
un
sel,
and
such
ass
ista
nts
ash
eco
ns1
der
sa.
PP
1'op
riat
e.
iIW!9.
Art
.2
9.
Ab
sen
tan
dad
dit
ion
al
mem
bers
.****
..
(c)
Wbe
neve
ra
specia
lco
urt
-mart
ial
isre
d
uce
dbe
lOY
thre
em
embe
rs,
the
tria
lm
ayn
ot
pro
ceed
UD
1es
8th
eco
nv
enin
gau
tho
rity
de
taU
sD
eWm
embe
rs8I
11'f
1cie
ntin
num
ber
to()
rovi
cJe
no
t1
8ss
thaD
thre
em
embe
rs.
Whe
nth
eD
eWm
embe
rsh
ave
bee
n8
1lO
m,
the
tria
lsb
al1
pro
ceed
as
if
no
evid
ence
had
pre
vio
usl
yb
een
intr
od
uced
,u
nle
ssa
ver
bat
imre
cord
of
thete8't~
of
pre
vio
usl
yeX
Blll
1ned
wit
nes
ses
0110
a8
'tip
1la
tio
nth
ere
of
1s
read
toth
eco
urt
inth
ep
rese
nce
of
the
accu
sed
and
cou
nse
l.
~~.
Art
.3
0.
nt
mty
pre
scri
be
rule
s.
NOCH
ANGE
NOCH
AN
GE
NOCH
AN
GE
(b)
The
law
off
icer
may
no
tco
nsu
ltw
ith
the
mem
bers
of
the
cou
rtex
cep
tin
the
pre
sen
ceo
fth
eac
cuse
d,
tria
lco
un
sel,
def
ense
cou
nse
l,an
dth
ere
po
rter,
ifan
y,n
or
may
he
vo
tew
ith
the
mem
bers
of
the
co
urt
.C
c)T
hela
wo
ffic
er
shall
pre
sid
eo
ver
all
pro
ce
edin
gs
of
gen
eral
and
specia
lco
urt
s-m
art
ial
exce
pt
whe
ncl
ose
dfo
rd
eli
bera
tio
no
rv
oti
ng
by
mem
bers
and
shall
co
ntr
ol
dir
ect
and
reg
u
late
the
con
du
cto
fa
llp
roce
edin
gs
befo
reth
e~.
1827
.A
rt.
27.
Deta
ilo
ftr
ial
cou
nse
lan
dd
e
fen
seco
un
sel.
(a)
Fo
rea
chg
ener
alan
dsp
ecia
lco
urt
-mart
ial
the
au
tho
rity
con
ven
ing
the
co
urt
shall
deta
iltr
ial
cou
nse
lan
dd
efen
seco
un
sel,
and
such
ass
ista
nts
ash
eco
nsi
der
sap
pro
pri
ate
.U
pon
req
uest
of
the
accu
sed
,th
eau
tho
rity
con
v
enin
ga
sl.ll
llllla
l'yco
urt
-mart
ial
shall
det
aiJ.
ad
efen
seco
un
sel.
1W29
.A
rt.
29.
Ab
sen
tan
dad
dit
ion
al
mem
bers
.
****
(c)
Whe
neve
ra
specia
lco
urt
-mart
ial
isre
du
ced
bel
ow
thre
em
embe
rs,
tlie
tria
lm
ayn
ot
pro
ceed
un
less
the
con
ven
ing
au
tho
rity
deta
ils
new
mem
bers
suff
icie
nt
innu
mbe
rto
pro
vid
en
ot
less
tha
nth
ree
mem
bers
.W
hen
the
new
mem
bers
hav
eb
een
swo
rn,
the
tria
lsh
all
pro
ceed
as
11'
no
evid
ence
had
prev
iOll
.sly
bee
nin
tro
du
ced
,,
un
less
av
erb
atim
reco
rdo
fth
etest1mo~
of
pre
vio
usl
yex
amin
edw
itn
esse
so
ra
stip
ula
tio
nth
ere
of
isre
ad
toth
eco
u.rt
inth
ep
rese
nce
of
the
law
of"
f'ic
er,
the
accu
sed
and
cou.
nsel
.
mil
itary
trib
un
als
may
be
pre
scri
bed
by
the
Pre
si
den
tb
yre
gu
lati
on
sW
hich
shall
,so
far
ash
eco
n
sid
ers
pra
cti
cab
le,
app
lyth
ep
rin
cip
les
of
law
and
the
rule
so
fev
iden
ceg
ener
alJ.
yre
cog
niz
edin
the
tria
lo
fcr
im1
Ilal
case
sin
the
Un
ited
Sta
tes
dis
tric
tco
urt
s,b
ut
whi
chm
ayn
ot
be
co
ntr
ary
too
rin
co
nsi
sten
tw
ith
this
ch
ap
ter.
(b)
A:U
rule
san
dre
gu
lati
on
sm
ade
un
der
this
art
icle
shall
be
un
ifo
rmin
sofa
ras
pra
cti
cab
lean
dsh
all
be
rep
ort
ed
toC
on
gre
ss.
case
sb
efo
reco
urt
s-m
art
ial
shall
app
lyth
ep
rin
cip
les
of
law
and
the
rule
so
fev
iden
ceap
p
licab
leto
the
tria
lo
fcr
imin
al.
case
sin
the
Un
ited
Sta
tes
Dis
tric
tC
ou
rtfo
rth
eD
istr
ict
of
Col
umbi
a,ex
cep
tas
such
pri
ncip
les
and
rule
sare
co
ntr
ary
too
rin
co
nsi
sten
tw
ith
this
chap
te
r.N
oru
leo
rre
gu
lati
on
ap
pli
cab
leto
co
urt
sm
art
ial
shall
defi
ne,
inte
rpre
t,o
rse
tfo
rth
the
elem
ents
of
any
off
ense
un
der
this
ch
ap
ter
exce
pt
ano
ffen
sen
ot
def
ineo
,in
this
ch
ap
ter
and
ari
sin
go
nly
inth
em
ilit
ary
.se
rvic
e,
inw
hich
case
the
Judg
eA
dvoc
ates
Gen
eral
may
join
tly
pre
scri
be
such
rule
.(b
)N
oru
leo
rre
gu
lati
on
app
lica
bJ.
eto
co
urt
sm
art
ial
iseff
ecti
ve
un
tUad
op
ted
by
form
alo
rder
of
the
co
urt
of
Mil
itary
Ap
pea
lsan
dap
-p
rov
edb
yth
eP
resi
den
t."
(c)
The
pro
ced
ure
,in
clu
din
gm
odes
of
pro
of,
inca
ses
bef
ore
co
urt
so
fin
qu
iry
,m
ilit
ary
colll
lll1s
si
on
s,an
do
ther
m1
l1ta
rytr
ibu
nals
exce
pt
co
urt
s-m
art
ial
may
be
pre
scri
bed
by
the
Pre
sid
en
tb
yre
gu
lati
on
sw
hich
shall
,in
sofa
ras
he
con
si
ders
pra
cti
cab
le,
app
lyth
ep
rin
cip
les
of
law
and
the
rule
so
fev
iden
ce.
gen
era
lly
reco
gn
ized
inth
etr
ial
of
crim
inal
case
sin
the
Un
ited
ISta
tes
dis
tric
tco
urt
s,b
ut
whi
chm
ayn
ot
be
co
ntr
ary
too
rin
co
nsi
sten
tw
ith
this
ch
ap
ter.
(d)
A:U
rule
san
dre
gu
lati
on
sap
pli
cab
leto
co
urt
s-m
art
ial,
co
urt
so
fin
qu
iry
,m
ilit
ary
com
-m
issi
on
s,an
do
ther
mil
itary
trib
un
als
shall
be
un
ifo
rmin
sofa
ras
pra
ctic
abJ.
ean
dsh
all
be
re-
po
rted
toth
eC
on
gre
ss.
-(e
)T
hep
rov
isio
ns
of
this
chap
ter
shall
be
con
st
rued
and
inte
rpre
ted
inac
cord
ance
wit
hth
eru
les
of
statu
tory
co
nst
ructi
on
ap
pli
ed
inth
eF
eder
alco
urt
s.E
xce
pt
whe
reco
ntr
ary
too
rin
co
nsi
sten
tw
ith
the
pro
vis
ion
so
fth
isch
ap
ter,
all
qu
esti
on
so
fev
iden
cein
co
urt
s-m
art
ial
shall
be
deci
de"d
inac
cord
ance
wit
hth
eru
les
ap
pli
ed
inth
etr
ial
of
cr1m
iIla
l.ca
ses
"in
the
Un
ited
Sta
tes
dis
tric
tco
urt
s.
7
1183
7.A
rt.
31.
Unl
aw!U
lJ.y
inn
uen
cin
gacti
on
of
cou
rt.
No
au
tho
rity
con
ven
ing
ag
ener
al.,
specia
l,o
rsU
llllll
8X"Y
co
urt
-mart
ial,
no
ran
yo
ther
cOlll
lll8D
ding
off
icer,
may
cen
sure
,re
pri
man
d,
or
adm
onis
hth
eco
urt
or·
any
mem
ber,
law
off
icer,
or
cou
nse
lth
ere
of,
w:Lt
hre
spect
toth
efi
nd
ing
so
rse
nte
nce
adju
dg
edb
yth
eco
urt
,o
rw
:Lth
resp
ect
toan
yo
ther
ex
erc
ise
of
its
or
his
fun
ctio
ns
inth
eco
nd
uct
of
the
pro
ceed
ing
.N
op
erso
nsu
bje
ct
to"t
his
chap
ter
may
atte
mp
tto
coer
ceo
r,b
yan
yu
nau
tho
rize
dm
ean
s,in
nu
en
ce
the
acti
on
of
aco
urt
1B
rt1
al
or
any
oth
er
m:I
.1it
ary
trib
un
al
or
any
mem
ber
there
ot,
inre
ach
ing
the
fin
din
gs
or
sen
ten
cein
any
case
,o
rth
e"'a
ctio
no
fan
yco
nv
enin
g,
app
rov
ing
,o
rre
v
iev
1D
sau
tho
rity
wit
hre
spect
toh
isju
dic
ial
acts
.
1183
8.A
rt.
•D
uti
eso
ttr
ial
cou
nse
lan
dd
efen
seco
un
sel.
aT
hetr
ial
cou
nse
lo
fa
gene
ral.
or
spec
ial.
co
urt
4l&
rtia
lsh
all
pro
secu
tein
the
nam
eo
fth
eU
nit
edS
tate
s,an
dsh
all
,u
nd
erth
ed
irecti
on
of
the
co
urt
,p
rep
are
the
reco
rdo
fth
ep
roce
edin
gs.
(b)
The
accu
sed
ha
sth
eri
gh
tto
be
rep
rese
nte
din
bis
def
ense
befo
rea
gen
eral
or
specia
lco
urt
m
art
ial
by
civ
ilia
nco
un
selif
pro
vid
edb
yh
im,
or
by
mil
1ta
.r)'
cou
nse
lo
fh
isow
nse
lecti
on
ifre
aso
n
ab
lyav
ail
ab
le,
or
by
the
def
ense
cou
nse
ld
eta
iled
un
der
secti
on
821
of
this
titl
e(a
rtic
le21
).S
ho
uld
the
accu
sed
have
cou
nse
lo
fb
isow
ns~lection,
the
def
ense
cou
nse
l,an
dass
ista
nt
def
ense
cou
nse
l,if
8D¥,
who
_re
deta
iled
,sh
all
,if
the
accu
sed
so'
desi
res,
act
as
his
ass
oq
tate
cou
nse
l;o
ther
wis
e~
sb
aU
be
excu
sed
by
the
pre
sid
en
to
fth
eco
urt
..(
c)
Inev
e!'7
co
urt
-mart
ial
pro
ceed
ing
,th
ed
efen
seco
un
sel
may
,in
the
even
to
fco
nv
icti
on
,fo
rwar
dfo
rat
tach
llle
nt
toth
ere
co
rdo
fp
roce
edin
gs
ab
rief
of
1183
7.!%
't.
37
.U
nlaW
'1"u
ll3"
inn
uen
cin
gacti
on
of
co
urt
.N
oau
tho
r1ty
con
ven
ing
ag
en
era
l,sp
ecia
l,o
rsU
IIIIII
IIrY
co
urt
-mart
ial,~
oth
er
caom
andi
ngo
ffic
er,
or
any
off
icer
serv
ing
on
the
sta
ffs
there
of,
may
cen
sure
,re
pri
man
d,
or
adm
onis
hth
eco
urt
or
any
mem
b
er,
law
off
icer,
or
cou
nse
lth
ere
of,
wit
h!
resp
ect
toth
efi
nd
ing
so
rse
nte
nce
adju
dg
edt
by
the
co
urt
,o
rw
ith
resp
ect
toan
yo
ther
Iex
erc
ise
of
its
or
his
fun
ctio
ns
inth
eco
n
du
cto
fth
ep
roce
edin
g.
No
per
son
sub
ject
.to
this
chap
ter
may
atte
mp
tto
coer
ceo
r,b
yan
yu
nau
tho
rize
dm
eans
,in
nu
en
ce
the
acti
on
of
aco
urt
-mart
ial
or
any
oth
er
m1
l1ta
rytr
ib
un
al.
or
any
lII!
mbe
rth
ere
of,
inre
a.ch
1.ng
the
fin
din
gs
or
sen
ten
cein
any
case
,o
rth
eac
tio
no
fan
yco
nv
enin
g,
app
rov
ing
,o
rr'
evie
w-
!1
ng
au
tho
rity
wit
hre
spect
toh
isju
dic
ial
!acts
.!
NOCH
AN
GE
Add
sto
Tit
le1
8,
Un
ited
Sta
tes
Cod
e:11
1509
.In
flu
enci
ng
mil
ltary
trib
un
al
or
mem
ber,
law
off
icer,
or
cou
nse
l.t
here
of.
Who
eVer
cen
sure
s,re
pri
m
ands
,ad
mon
ishe
so
ren
dea
vo
rsto
coer
ceo
rim
pro
per
lyin
flu
en
ce,
dir
ectl
yo
rin
dir
ectl
y,
any
ccu
rt
mart
ial,
co
urt
of
inq
uir
y,
m:l
.li
tary
CO
DII
II1s
sion
,o
ran
yo
ther
mil
ita
rytr
ibu
nal
or
bo
ard
or
rev
iew
in
gau
tho
rity
,o
ran
ym
embe
r,la
wo
ffic
er,
or
cou
nse
lth
ere
of
wit
hre
spect
toth
edu
ean
dp
rop
erp
er
form
ance
of
its
or
bis
off
icia
ld
uti
es
or
fun
ctio
ns
shall
be
fin
ed
no
tm
ore
than
$500
0o
rim
pri
son
edfo
rn
ot
mor
eth
anfi
ve
years
,o
rb
oth
.
1183
8.A
rt.
38.
Du
ties
of
tria
lco
un
sel
and
def
ense
cou
nse
l.(a
)T
he
tria
lco
un
se
lo
fa
gen
eral
or
specia
lco
urt
-mart
ial
sh
all
pro
secu
tein
the
nam
eo
fth
eU
nit
edS
tate
s,an
dsh
all
,u
nd
erth
ed
irecti
on
of
the
law
off
icer,
pre
par
eth
ere
co
rdo
fth
ep
roce
edin
gs.
(b)
The
accu
sed.
has
the
rig
ht
tob
ere
pre
se
nte
din
his
def
ense
bef
ore
aco
urt
-.
rt1
al
by
civ
illa
nco
un
sel
if'
pro
vid
edb
yh
im,
or
by
mil
ltary
cou
nse
lo
fb
isow
nse
lecti
on
if'
reas
on
ably
av
ail
ab
le,
01
"'b
yth
ed
efen
seco
un
sel
deta
iled
un
der
secti
on
821
of'th
isti
tle
(art
icle
21).
Sh
ou
ldtb
eac
cuse
dh
ave
cou
nse
lof
'h
isow
nse
le
cti
on
,th
ed
efen
seco
un
sel,
and
assis
ta
nt
def
ense
cou
nse
l,if
any
,w
how
ere
deta
iled
,sh
all
,if
the
accu
sed
sod
e
sir
es,
act
asb
isass
ocia
teco
un
sel;
8
such
matt
ers
ash
efe
els
sho
uld
be
con
sid
ered
Iin
beh
alf
of
the
aCC
'J.se
don
_re
vie
w,
inclu
din
gan
yo
bje
cti
on
toth
eco
nte
nts
of
the
reco
rd'o
Ih1c
hh
eco
nsi
der
sap
pro
pri
ate
.(d
)A
nass
ista
nt
tria
J.co
un
sel
of
ag
ener
alco
urt
-mart
ial
may
,u
nd
erth
ed
irecti
on
of
the
tria
lco
un
selo
r'W
hen
he
isq
uali
fied
tob
ea
titl
e(a
rtic
le2
7),
per
form
any
du
tyim
pose
db
yla
.w,
reg
ula
.tio
n,
or
the
cust
ano
fth
ese
rvic
eup
onth
etr
ial
cou
nse
lo
fth
eco
urt
.A
nassis
tan
ttr
ial
cou
nse
lo
fa
specia
lco
urt
-mart
ial
may
per
form
any
du
tyo
fth
etr
ial
cou
nse
l.(e
)A
nass
ista
nt
def
ense
cou
nse
lo
fa
gen
eral
or
specia
lco
urt
-mart
ial
may
,u
nd
erth
ed
irec
tio
no
fth
ed
efen
seco
un
selo
rw
hen
he
isq
uali
fied
tob
eth
ed
efen
seco
un
sel
as
re-
qu
ired
by
secti
on
827
of
this
titl
e(a
rtic
le27
),p
erfo
rman
yd
uty
impo
sed
by
law
,re
gu
la
tio
n,
or
the
cust
om
of
the
serv
ice
upon
cou
nse
lfo
rth
eac
cuse
d.
39.
Art
.39
.S
essi
on
s.W
hen
ag
ener
alo
rsp
ecia
lco
urt-
iiiB
rti8
1.d
eli
bera
tes
or
vo
tes,
on
lyth
em
embe
rso
fth
eco
urt
may
be
pre
sen
t.A
:f'te
ra
gen
eral
cou
rt-l
r.ar
tial
has
fin
all
yv
ote
don
the
fin
din
gs,
the
cou
rtm
ayre
qu
est
the
law
off
icer
and
the
rep
:)rt
er
toap
pea
rb
efo
reth
eco
urt
to..
pu
tth
efi
nd
ing
sin
pro
per
form
,an
dth
ose
pro
ceed
ing
ssh
all
be
onth
ere
cord
.A
llo
ther
pro
ceed
ing
s,in
clu
din
ga
ny
oth
er
co
nsu
lta
tio
no
fth
eco
urt
liit
hco
un
selo
rth
ela
wo
ffi
cer,
shall
be
mad
ea
part
of
the
reco
rdan
dsb
al1
be
inth
ep
rese
nce
of
the
accu
sed
,th
ed
efen
seco
un
sel,
the
tria
lco
un
sel,
and
ing
en
era
lco
urt
-mart
ial
case
s,th
ela
wo
ffic
er.
NOCH
AN
GE
oth
erw
ise
they
shall
be
excu
sed
by
the
law
off
icer
or
sl.llll
lJlB.
I"Yco
urt
-mart
ial.
(c)
Inev
ery
co
urt
-mart
ial
pro
ceed
ing
,th
ed
efen
seco
un
sel
may
,in
the
even
to
fco
nv
ic
tio
n,
forw
ard
for
atta
chm
ent
toth
ere
cord
of
pro
ceed
ing
sa
bri
ef
of
such
matt
ers
as
he
feels
sho
uld
be
con
sid
ered
inb
eh
alf
of
the
accu
sed
on
rev
iew
,in
clu
din
gan
yo
bje
c
tio
nto
the
con
ten
tso
fth
ere
co
rd'o
Ih1c
hh
eco
nsi
der
sap
pro
pri
ate
.i
(d)
An
ass
ista
nt
tria
lco
un
sel
of
ag
ener
alIc
ou
rt-m
art
ial
may
,Il
!lde
rth
ed
irecti
on
-of
the
tria
lco
un
selo
rw
.en
he
isq
uali
fied
tob
ea
tria
lco
un
sel
as
req
uir
ed
by
secti
on
827
of
this
titl
e(a
rtic
le2
7),
per
form
any
du
tyim
pose
db
yla
w,
reg
ula
tio
n,
or
the
cu
stan
of
the
serv
ice
upon
the
tria
lco
un
sel
of
the
co
urt
.A
nass
ista
nt
tria
lco
un
sel
of
asp
ecia
lco
urt
-mart
ial
'tlJfJ.
yp
erfo
rman
yd
uty
of
the
tria
lco
un
sel.
(e)
An
ass
ista
nt
def
ense
cou
nse
lo
fa
gen
eral
or
specia
lco
urt
-mart
ial
may
,u
nd
erth
ed
irec
tio
no
fth
ed
efen
seco
un
selo
r'W
hen
he
isq
uali
fied
tob
eth
ed
efen
seco
un
sel
as
re
qu
ired
by
secti
on
827
of
this
titl
e(a
rtic
le2
1),
per
form
any
du
tyim
pose
db
yla
w,
reg
u
lati
on
,o
rth
ecu
stom
of
the
serv
ice
upon
cou
nse
lfo
rth
eac
cuse
d.
1183
9.A
rt.
39.
Ses
sio
ns.
Whe
na
gen
eral
or
specia
lco
urt
-mart
ial
deli
bera
tes
or
vo
tes,
on
lyth
em
embe
rso
fth
eco
urt
may
be
pre
sen
t.A
llo
ther
pro
ceed
ing
s,in
clu
din
g~
con
sul
tati
on
of'
the
co
urt
wit
hco
un
selo
rth
eJ.
awo
ffic
er,
shall
be-m
ade
ap
art
of
the
reco
rdan
dsh
all
be
inth
ep
rese
nce
of
the
accu
sed
,th
ed
efen
seco
un
sel,
the
tria
lco
un
sel,
and
the
J.aw
off
icer.
r
H84
0.A
rt.
40.
Co
nti
nu
ance
s.A
co
urt
-mart
ial
may
,NO
CHA
NG
E18
40.
Art
.40
.C
on
tin
uan
ces.
Ala
wo
1'f
icer
for
reas
ou
able
cau
se,
gra
nt
aco
nti
nu
ance
toan
yo
rIf
fill!I
U'1
"yco
urt
-1:l
lart
ial
may
,fo
rre
aso
nab
lep
art
yfo
rsu
ch
tim
e,
and
as
of'
ten
,as
may
app
ear
cau
se,
gra
nt
aco
nti
nu
ance
to'a
ny
pa
rty
for
tob
eju
st.
such
tim
e,an
das
oft
en
,as
may
app
ear
tob
eju
st.
18
41
.A
rt.
41
.C
hal
len
ges
.(a
)M
embe
rso
fa
1184
l.A
rt.
4l.
Ch
alle
ng
es.*
**
*(b
)E
ach
I118
41.
Art
.4
1.
Cha
l.l.
enge
s.(a
)M
embe
rso
fa
gen
eral
.o
rsp
ecia
lco
urt
-mart
ial
and
the
law
accu
sed
and
the
tria
lco
un
sel
isen
titl
ed
gen
eral
or
specia
lco
urt
-mart
ial
and
the
law
o1
'fic
ero
fa
gen
eral
.co
urt
-1:l
lart
ial
may
be
toon
ep
erem
pto
rych
alle
ng
e,b
ut
the
law
off
icer
of
aco
urt
-mart
ial
may
be
chal
l.en
ged
chal
.len
ged
by
the
accu
sed
or
the
tria
lco
un
sel
off
icer
and
ano
ffic
er
app
oin
ted
asa
sin
gle
-b
yth
eac
cuse
do
rth
etr
ial
cou
nse
lfo
rca
use
for
cau
sest
ate
dto
the
co
urt
.T
heco
urt
shal
l.o
ffic
er
specia
lco
urt
-mart
ial
may
no
tb
est
ate
dto
the
co
urt
.T
he
law
off
icer
sh
all
dete
l'll
1ne
the
rele
van
cyan
dv
ali
dit
yo
fch
al.-
'ch
alle
ng
edex
cep
tfo
rca
use
.d
eter
min
eth
ere
lev
ancy
and
vali
dit
yo
fch
al-
len
ges
for
cau
se,
and
may
no
tre
ceiv
ea
ch
al-
len
ges
for
cau
se,
and
may
no
tre
ceiv
ea
ch
al-
len
ge
tom
ore
tha
non
ep
erso
nat
ati
me.
Ch
al-
len
ge
tom
ore
tha
non
ep
erso
nat
ati
me.
Ch
al-
len
ges
by
the
tria
lcO
Wls
elsh
all.
ord
inari
lyle
ng
esb
yth
etr
ial
cou
nse
lsh
all.
orc
lin
ari
lyb
ep
rese
nte
d'a
nd
dec
ided
befo~
tho
seb
yth
eb
ep
rese
nte
dan
dd
ecid
edb
efo
reth
ose
by
the
accu
sed
are
of'
f'er
ed.
.ac
cuse
dare
off
ere
d.
**
**
(b)
Eac
hac
cuse
dan
dth
etr
ial
cou
nse
lis
en
-t!
tl.e
d1
;0o
ne
per
emp
tory
chal
len
ge,
bu
tth
ela
wo
1'f
icer
may
no
tb
ech
alle
ng
edex
cep
tfo
rca
use,
18
51
.A
rt.
51
.V
oti
ng
and
ruli
ng
s.(a
)V
oti
ng
1185
l.A
rt.
51
.V
oti
ng
an
dru
lin
gs.
**
**
18
51
.A
rt.
51
.V
oti
ng
and
ruli
ng
s.b
ym
emb
ers
of
ag
ener
al.
or
specia
lco
urt
-(b
)T
hela
wo
ffic
er
of
ag
ener
alco
urt
-mart
ial
(a)
Vo
tin
gb
ym
embe
rso
fa
gene
ral.
or
specia
lm
art
ial
upon
qu
esti
on
so
fch
alle
ng
e,on
the
and
the
pre
sid
en
to
fa
specia
lco
urt
-mart
ial
co
urt
-mart
ial
on
the
fin
din
gs
and
onth
efi
nd
ing
s,an
don
the
sen
ten
cesh
all.
be
by
se-
shal
l.ru
leup
onin
terl
ocu
tory
qu
est
ion
s,o
ther
sen
ten
cesh
all.
be
by
secre
tw
ritt
en
ball
ot.
cre
tv
ri-t
ten
bBJ.
l.ot
.T
he
jun
ior
mem
ber
of
the
than
chal
l.en
ge,
ari
sin
gd
uri
ng
the
pro
ceed
-~e
jun
ior
mem
ber
of
the
cou
rtsh
all.
cou
nt
co
urt
shaU
.co
un
tth
ev
ote
s.T
he
cou
nt
shal
l.in
gs.
Any
such
ruli
ng
mad
eb
yth
ela
wo
ffic
er
["he
vo
tes.
The
cou
nt
shal
l.b
ech
eck
edb
yb
ech
eck
edb
yth
ep
resi
den
t,w
hosh
all.
fort
h-
of
ag
ener
alco
urt
-mart
ial
upon
an
yin
terl
ocu
-th
ese
nio
rm
embe
r,w
hosh
all.
fort
hw
ith
an
-w
ith
8DIIO
UJlc
eth
ere
sult
of
the
bal
l.o
tto
the
tory
qu
esti
on
oth
er
than
the
qu
esti
on
of
ac-
!Dou
nceth~
resu
lto
fth
eb
all
ot
inop
enm
embe
rso
fth
eco
urt
.cu
sed
'ss~ty
isfi
nal
eand
co
nst
itu
tes
the
cou
rt•
.,r
(b)
Th
el.a
wo
1'f
icer
of
ag
ener
al.
co
urt
-mart
ial
ruli
ng
of
the
co
urt
.H
owev
er,
the
law
o1
'fic
er(b
)T
hela
wo
ffic
er
of
ag
ener
alo
rsp
ecia
lan
dth
ep
resi
den
to
fa
specia
lco
urt
-mart
ial
may
chan
geh
isru
lin
gat
an
yti
me
du
rin
gth
eco
urt
-mart
ial
shal
l.ru
leup
onall
inte
rlo
cu
-sh
all
rul.
eup
onin
ter1
0cu
tory
qu
est
ion
s,o
ther
tria
lex
cep
ta
ruli
ng
ona
mo
tio
nfo
ra
fin
d-
tory
qu
esti
on
sari
sin
gd
uri
ng
the
pro
ceed
ing
s.tb
an
chal
l.en
ge,
ari
sin
gd
uri
ng
the
pro
ceed
ing
s.in
go
fn
ot
gu
ilty
whi
chw
asg
ran
ted
.U
nle
ssA
nysu
chru
lin
gm
ade
by
the
law
off
icer
upon
AD7
such
rulin
gm
ade
by
the
law
off
icer
of
ath
eru
lin
gis
fin
al,
ifa
ny
mem
ber
ob
jects
any
inte
r10
cu
tory
qu
esti
on
oth
er
than
the
gen
eral
.co
urt
-mart
ial
upon
ariy
inte
rlo
cu
tory
there
to,
the
cou
rtsh
all
be
cle
are
dan
dcl
ose
dq
ues
tio
no
fth
eac
cuse
d's
san
ity
isfi
nal
and
qu
esti
on
oth
er
tban
am
oti
on
for
afi
nd
ing
of
and
the
qu
esti
on
dec
ided
by
av
oic
ev
ote
asco
nst
itu
tes
the
ruli
ng
of
the
co
urt
.H
owev
er,
no
tgu
:ll.v,
or
the
qu
esti
on
of
accu
sed
'ssa
n-
pro
vid
edin
secti
on
852
of
this
tit1
e(a
.rti
cl;~
the
law
o1
'fic
erm
aych
an
ge
his
ruli
ng
at
any
ity
,~s
f'1n
al.
and
co
nst
itu
tes
the
ruli
ng
of
52
),b
egin
nin
gw
ith
the
jun
ior
inra
nk
.*
**
tim
ed
uri
ng
the
tria
lex
cep
ta
ruli
ng
ona
the
cou
rt.
How
ever
,th
ela
wo
1'f
icer
may
mo
tio
nfo
ra
fin
din
go
fn
ot
gu
ilty
that
was
Ie>
cban
ge
his
ruli
ng
at
any
tim
ed
uri
ng
the
tria
l.U
nle
ssth
eru
lin
gis
fin
al,
if
an
ym
embe
ro
b
jects
there
to,
the
co
urt
shal1
be
cle
are
dan
dclo
sed
and
the
qu
est
ion
dec
ided
by
av
oic
ev
ote
as
pro
vid
edin
secti
on
85
2o
fth
isti
tle
(art
icle
52
),b
egin
nin
gw
ith
the
jun
ior
inra
nk
.(c
)B
efo
rea
vo
teis
tak
en
on
the
fin
din
gs,
the
law
off
icer
of
ag
en
era
lco
urt
-mart
ial
and
the
pre
sid
en
to
fa
specia
lco
urt
-mart
ial
sh
all
,in
the
pre
sen
ceo
fth
eac
cuse
dan
dco
un
sel,
inst
ruct
the
coU
rtas
toth
eele
m
ents
of
the
off
en
sean
dch
arg
eth
eco
urt
--(1
)th
at
the
accu
sed
mu
stb
ep
resu
med
tob
ein
no
cen
tu
nti
lh
isg
uil
tis
est
ab
lish
ed
by
leg
al
and
com
pet
ent
evid
ence
bey
on
dre
aso
nab
led
ou
bt;
(2)
that
inth
eca
seb
ein
gco
nsi
dere
d,if
there
isa
reas
on
able
do
ub
tas
toth
eg
uil
to
fth
eae
cuse
d,
the
do
ub
tm
ust
be
reso
lved
infa
vo
ro
fth
eac
cuse
dan
dh
em
ust
be
acq
uit
ted
;(3
)th
at,
if
there
isa
reas
on
able
do
ub
tas
toth
ed
egre
eo
fg
uil
t,th
efi
nd
ing
mu
stb
ein
alo
wer
deg
ree
as
tow
hic
hth
ere
isno
reas
on
able
do
ub
t;an
d(I
j.)th
at
the
bu
rden
of
pro
of
toest
ab
lish
the
gu
ilt
of
the
accu
sed
bey
on
dre
aso
nab
led
ou
bt
isup
onth
eU
nit
edS
tate
s.
52
.A
rt.
2.
Num
ber
of
vo
tes
rere
d.
(a)
(1N
op
erso
nm
ayb
eco
nv
icte
do
fan
off
ense
for
wh
ich
the
dea
thp
en
alt
yis
mad
em
and
ato
ryb
yla
w,
exce
pt
by.
the
con
curr
ence
of
all
the
mem
bers
of
the
CQ
lrt-
mart
ial
pre
sen
tat
the
tim
eth
ev
ote
1s
tak
en
.(2
)N
op
erso
nm
ayb
eco
nv
icte
do
fa
ny
oth
er
off
en
se,
exce
pt
by
the
con
curr
ence
of
two
-th
ird
so
fth
em
embe
rsp
rese
nt
at
the
tim
eth
ev
ote
1s
tak
en
.(b
)(1
)N
op
erso
nm
ayb
ese
nte
nce
dto
suff
er
death
,ex
cep
tb
yth
eco
ncu
rren
ceo
fa
llth
e
(d)
Su
bse
ctio
ns
(a),
(b),
and
(c)
of
this
secti
on
don
ot
app
lyto
asi
ng
le
off
icer
specia
lco
urt
-mart
ial.
An
off
i-cer
who
isap
po
inte
das
asi
ng
le-o
ffic
er
specia
lco
urt
-mart
ial
sball
det
erm
ine
all
qu
est
ion
so
fla
wan
dfa
ct
ari
sin
gd
uri
ng
the
tria
lan
d,
ifth
eac
cuse
dis
co
nv
icte
d,
adju
dg
ean
ap
pro
pri
ate
sen
ten
ce.
NOCH
ANGE
gra
nte
d.
If
an
ym
embe
ro
bje
cts
toa
ruli
ng
of
the
law
off
icer
on
the
qu
est
ion
of
the
accu
sed
'ssa
nit
y,
the
cou
rt-
sh
all
be
cle
are
dan
dclo
sed
and
the
qu
est
ion
de
cid
ed
by
av
oic
ev
ote
as
pro
vid
edin
sec
tio
n8
52
of
this
titl
e(a
rtic
le5
2),
be
gin
nin
gw
ith
the
jun
ior
inra
nk
.(c
)B
efo
rea
vo
teis
tak
eno
nth
efi
nd
ing
s,th
ela
wo
ffic
er
of
ag
en
era
lo
rsp
ecia
lco
urt
-mart
ial
sh
all
,in
the
pre
sen
ceo
fth
eac
cuse
dan
dco
un
sel,
inst
ruct
the
co
urt
as
toth
eel
emen
tso
fth
eo
ffen
sean
dch
arg
eth
eco
urt
--*
**
*.
I5
2.
Art
.5
2.
Num
ber
of
vo
tes
req
uir
ed
.
****
(c)
All
oth
er
qu
esti
on
sto
be
dec
ided
by
the
mem
bers
of
ag
ener
alo
rsp
ecia
lco
urt
m
art
ial
shal1
bed
eter
min
edb
ya
majo
rity
vo
te.
Ati
ev
ote
ona
mo
tio
nre
lati
ng
toth
eq
uest
ion
of
the
accu
sed
'ssa
nit
yis
ad
eter
min
atio
nag
ain
stth
eac
cuse
d.
At1
ev
ote
on
any
oth
er
qu
est
ion
18
ad
eter
min
ati
on
infa
vo
ro
fth
eac
cuse
d.
II
mem
bers
of
the
co
urt
-mart
ial
pre
sen
tat
the
tim
eth
ev
ote
ista
ken
and
for
ano
ffen
sein
this
ch
ap
ter
ex
pre
ssly
mad
ep
un
ish
able
by
death
.(2
)N
op
erso
nm
ayb
ese
nte
nce
dto
life
im
pris
OIl
llle
nto
rto
con
fin
emen
tfo
rm
ore
tha
nte
ny
ears
,ex
cep
tb
yth
eco
ncu
rren
ceo
fth
ree
fou
rth
so
fth
em
embe
rsp
rese
nt
at
the
tim
eth
ev
ote
ista
ken
.(3
)A
llo
ther
sen
ten
ces
sh
all
be
det
erm
ined
by
the
con
curr
ence
of
two
-th
ird
so
fth
em
embe
rsp
rese
nt
at
the
tim
eth
ev
ote
ista
ken
.(c
)A
llo
ther
qu
est
ion
sto
be
dec
ided
by
the
mem
b
ers
ot
ag
en
era
lo
rsp
ecia
lco
urt
-mart
ial
shall
be
det
enn
ined
by
am
ajo
rity
vo
te.
Ati
ev
ote
on
ach
alle
ng
ed
isq
uali
fies
the
mem
ber
chal
len
ged
.A
tie
vo
teo
na
mo
tio
nfo
ra
fin
din
go
fn
ot
gu
ilty
or
on
am
oti
on
rela
tin
gto
the
qu
est
ion
of
the
accu
sed
ts
san
ity
isa
det
e:n
n1
nat
ion
ag
ain
stth
eac
cuse
d.
Ati
ev
ote
on
any
oth
er
qu
est
ion
isa
det.
el'll
l1na
tion
infa
vo
rQ
fth
eac
cuse
d.
1854
.A
rt.
54.
Rec
ord
of
tria
l.(a
)E
ach
gen
era
lco
urt
--.r
tial
shall
kee
pa
sep
ara
tere
co
rdo
fth
ep
roce
edin
gs
of
the
tria
lo
fea
chca
seb
rou
gh
tb
efo
reit
,an
dth
ere
co
rdsh
all
be
au
then
ticate
db
ytb
esi
gn
atu
res
of
the
pre
sid
en
tan
dth
ela
wo
ffic
er.
If
the
reco
rdca
nn
ot
be
au
then
ticate
db
yeit
her
the
pre
sid
en
to
rth
ela
wo
ffic
er,
by
reas
on
of
his
death
,d
isab
ilit
y,
or
abse
nce
,it
shall
be
sig
ned
by
am
embe
rin
lieu
of
him
.If
bo
thth
ep
resi
den
tan
dth
ela
wo
ffic
er
are
un
av
ail
ab
lefo
ran
yo
fth
ose
reaso
ns,
the
reco
rd~
be
au
then
ticate
db
yt"W
Om
embe
rs.
(b)
Eac
hsp
ecia
lan
ds\.
llllll
l8.l'Y
co
urt
-mart
ial
shall
kee
pa
sep
ara
tere
co
rdo
fth
ep
roce
edin
gs
inea
chcase
,an
dth
ere
co
rdsh
all
co
nta
inth
em
att
er
and
shall
.b
eau
then
ticate
din
the
man
ner
req
uir
ed
by
such
reg
ula
tio
ns
as
the
Pre
sid
en
tm
ayp
resc
rib
e.
•5
•A
rt.
5•
Rec
ord
of
tria
l.a
Eac
hco
urt
lI
Brt
ial
shall
mak
e.a
sep
ara
tere
co
rdo
fth
epr
o":
ceed
ing
so
f·t
he
tria
lo
fea
chca
seb
rou
gh
tb
e
fore
it.
Are
co
rdo
fth
ep
roce
edin
gs
of
atr
ial
inw
hic
hth
ese
nte
nce
.ad
jud
ged
inclu
des
ab
ad-c
on
du
ctd
isch
arg
eo
ris
mor
eth
an
that
wh
ich
coul
g,b
ead
jUd
ged
by
asp
ecia
lco
urt
-mart
ial
shall
co
nta
ina
can
pJ.
ete
ver
bat
imac
cou
nt
of
the
pro
ceed
ing
san
dte
stim
on
yb
efo
reth
eco
urt
,an
dsh
all
be
au
then
ticate
din
such
man
ner
as
may
be
req
uir
ed
by
reg
ula
tio
ns
whi
chth
eP
resi
den
tm
ayp
resc
rib
e.
All
oth
er
reco
rds
of
tria
lsh
all
con
ta
insu
chm
att
er
and
be
-au
then
tica
ted
insu
chm
anne
ras
may
be
req
uir
ed
by
reg
ula
tio
ns
wh
ich
the
Pre
sid
en
tm
ayp
resc
rib
e.
(b)
Aco
py
of
the
reco
rdo
fth
ep
roce
edin
gs
of
ach
gen
era
lan
dsp
ecia
lco
urt
-mart
ial
shall
be
g1
ven
toth
eac
cuse
das
soo
nas
au
then
ticate
d.
It
av
erb
atim
reco
rdo
ftr
ial
by
gen
era
lco
urt
-
54.
Art
.54
.R
eco
rdo
ftr
ial.
(a)
Eac
h.
gen
era
lan
dsp
ecia
lco
urt
-mart
ial
shall
kee
pa
sep
ara
tere
co
rdo
fth
ep
roce
edin
gs
.o
fth
etr
ial
of
each
case
bro
ug
ht
befo
reit
,an
dth
ere
co
rdsh
all
be
au
then
ticate
db
yth
esi
gli
atu
res
of
the
sen
ior
mem
ber
and
the
law
off
icer.
If
the
reco
rdcan
n
ot
be
au
then
ticate
db
yeit
her
the
sen
ior
mem
ber
or
the
law
off
icer,
by
reas
on
of
his
death
,d
isab
ilit
y,
or
abse
nce
,it
shall
be
sig
ned
by
am
embe
rin
lieu
of
him
.If
bo
thth
ese
nio
rm
embe
rp
rese
nt
at
the
tria
lan
dth
ela
wo
ffic
er
are
unav
a:1l
8.bl
efo
ran
yo
fth
ose
reaso
ns,
the
:r:e
cord
sh
all
be
au
then
ticate
db
yt1
iOm
embe
rs.
..(b
)E
ach
sum
mar
yco
urt
-mart
ial
shall
keep
ase
para
tere
co
rdo
fth
ep
roce
ed
ing
sin
each
case
·,an
dth
ere
co
rdsh
all
Jr
(c)
Aco
pyo
fth
ere
co
rdo
fth
ep
roce
edin
gs
of
each
gen
eral
.an
dsp
ecia
lco
urt
-mart
ial
shall
be
giv
ento
the
accu
sed
as
soon
as
it
isau
then
ti
cate
d.
10
05
.A
rt.
b5
.D
is"P
Osi
tion
of
reco
rds
aft
er
re
vie
wb
yth
eco
nv
enin
gau
tho
rity
.(a
)W
hen
the
con
ven
ing
au
tho
rity
has
tak
enfi
nal
acti
on
ina
gen
eral
.co
urt
-mart
ial
case
,h
esh
all
sen
dth
een
tire
reco
rd,
inclu
din
gh
isacti
on
ther
eon
and
the
op
inio
no
ro
pin
ion
so
fth
esta
ffju
dg
ead
v
oca
teo
rl.
egal
.o
ffic
er,
toth
eap
pro
pri
ate
Jud
ge
Adv
ocat
eG
ener
al..
.(b
)If
the
sen
ten
ceo
fa
specia
lco
urt
-mart
ial
as
app
rov
edb
yth
eco
nv
enin
gau
tho
rity
incl
ud
esa
bad
-co
nd
uct
dis
char
ge,
wh
eth
ero
rn
ot
susp
end
ed,
the
reco
rdsh
all.
be
sen
tto
the
off
icer
ex
erc
is
ing
gen
eral
.co
urt
-mart
ial
juri
sdic
tio
no
ver
the
cOlll
lllaD
dto~
rev
iew
edin
the
sam
em
anne
ras
are
co
rdo
ftr
ial
by
gen
eral
.co
urt
-mart
ial
or
dir
ect1
.yto
the
ap
pro
pri
ate
Jud
ge
Adv
ocat
eG
en
eral
.to
be
rev
iew
edb
ya
bo
ard
of
rev
iew
.If
the
sen
ten
ceas
app
rov
edb
yan
off
icer
ex
erc
isin
gg
ener
al.
co
urt
-mart
ial
juri
sdic
tio
nin
clu
des
ab
ad-c
on
du
ctd
isch
arg
e,w
het
her
or
no
tsu
spen
ded
,th
ere
co
rdsh
all.
be
sen
tto
the
app
rop
riat
eJu
dge
Adv
ocat
eG
ener
al.
tob
ere
vie
wed
by
ab
oar
do
fre
vie
w.
(c)
All
oth
er·
specia
lan
dsu
mm
ary
co
urt
-mart
ial
reco
rds
sha1
.lb
ere
vie
wed
by
aju
dg
ead
vo
cate
of
the
Arm
yo
rth
eA
irF
orc
e,a
1.aw
specia
list
of
the
Nav
yIo
ra
1.aw
specia
list
or
1.aw
yer
of
the
Co
ast
Gua
rdo
r·D
epar
tmen
to
fth
eT
reas
ury
Ian
dsh
all.
be
tran
smit
ted
and
dis
po
sed
of
asth
eS
ecre
tary
con
cern
edm
ayp
resc
rib
eb
yre
gu
lati
on
.
Bti6
6.A
rt.
66
.R
evie
wb
yb
oar
do
fre
vie
w.
(a)
E&
chJu
dge
Adv
ocat
eG
ener
al.
shall
co
nst
itu
tein
his
off
ice
one
.or
mor
eb
oard
so
fre
vie
wI
mart
ial
isn
ot
req
uir
ed
by
sub
sect
ion
(a),
the
accu
sed
may
bu
ysu
Ch
are
cord
un
der
reg
u
1.a
tio
ns
wh
ich
the
Pre
sid
en
tm
ayp
resc
rib
e.
**
**
Itlb
5.
Art
.b
5.
Dis
po
siti
on
of
reco
rds
af'
ter
rev
iew
by
the
con
ven
ing
au
tho
rity
.(a
)W
hen
the·
con
ven
ing
au
tho
rity
has
tak
enfi
nal
ac
tio
nin
ag
ener
al.
co
urt
-mart
ial
case
and
the
sen
ten
ceap
pro
ved
by
him
inclu
des
ab
ad
co
nd
uct
dis
char
ge
or
ism
ore
tha
nth
at
wh
ich
cou
ldh
ave
bee
nad
jud
ged
by
asp
ecia
lco
urt
m
art
ial,
he
shall
sen
dth
een
tire
reco
rd,
in
clu
din
gh
isacti
on
ther
eon
and
the
op
inio
no
ro
pin
ion
so
fth
esta
ffju
dg
ead
vo
cate
or
l.eg
al.
off
icer,
toth
eap
pro
pri
ate
Jud
ge
Adv
ocat
eG
ener
al•.
(b)
Ifth
ese
nte
nce
of
asp
ecia
lco
urt
-mart
ial
asap
pro
ved
by
the
con
ven
ing
au
tho
rity
inclu
des
ab
ad-c
on
du
ctd
isch
arg
e,w
het
her
or
no
tsu
sp
end
ed,
the
reco
rdsh
all.
be
sen
tto
the
off
'i
cer
ex
erc
isin
gg
ener
al.
co
urt
-mart
ial
juri
sdic
ti
on
ov
erth
eco
mm
and
tob
ere
vie
wed
inth
esa
me
man
ner
as
are
cord
of
tria
lb
yg
ener
al.
co
urt
-mart
ial
or
dir
ect1
.yto
the
ap
pro
pri
ate
IJud
ge
Adv
ocat
eG
ener
al..
If
the
sen
ten
ceas
app
rov
edb
yan
off
icer
ex
erc
isin
gg
ener
al.
co
urt
-mart
ial
juri
sdic
tio
nin
clu
des
ab
ad
con
du
ctd
isch
arg
e,w
het
her
or
no
tsu
spen
ded
,th
ere
co
rdsh
all
be
sen
tto
the
ap
pro
pri
ate
Judg
eA
dvoc
ate
Gen
eral
..(c
)A
llo
ther
reco
rds
of
tria
lb
yco
urt
m
art
ial
shap
.b
ere
vie
wed
by
aju
dg
ead
vo
cate
,o
r1.
awye
ro
fth
eA
rmy
or
Air
Fo
rce
or
a1.
awsp
ecia
list
or
1.aw
yer
of
the
Nav
y,C
oas
tG
uar
d,
or
Dep
artm
ent
of
the
Tre
asu
ry,
and
shal
l.b
etr
an
smit
ted
and
dis
po
sed
of
as
the
Secre
tary
con
cern
edm
ayp
resc
rib
eb
yre
gu
1
.ati
on
s.
8866
.A
rt.
66.
Rev
iew
by
bo
ard
of
rev
iew
.*
**
-l!'
(b)
The
Jud
ge
Adv
ocat
eG
ener
al.
shall
·re
fer
con
tain
the
matt
er
and
sha1
.lb
eau
then
ticate
din
the
man
ner
req
uir
ed
by
such
reg
u1
.ati
on
sas
the
Pre
sid
en
tm
ayp
resc
rib
e.
**
**
1Itl6
5.A
rt.
65
.D
isp
osi
tio
no
fre
cord
saft
er
rev
iew
by
the
con
ven
ing
au
tho
rity
.*
**
*(b
)A
llsp
ecia
lan
dsu
mm
ary
co
urt
-mart
ial
reco
rds
shall
be
rev
iew
edb
ya
jud
ge
adv
oca
teo
fth
eA
rmy
or
the
Air
Fo
rce,
a1.
awsp
ecia
list
of
the
Nav
y,o
ra
1.aw
specia
list
or
1.aw
yer
of
the
Co
ast
Gua
rdo
rD
epar
tmen
to
f-t
heT
reas
ury
,an
dsh
all
be
tran
smit
ted
and
dis
po
sed
of
as
the
Secre
tary
con
cern
edm
ayp
resc
rib
eb
yre
gu
1.a
tio
n.
.186
6.A
rt.
66.
Rev
iew
by
bo
ard
of
rev
iew
.(a
)T
heS
ecre
tary
of
Def
ense
shall
co
nst
itu
teon
eo~
mor
eb
oar
ds
of.
rev
iew
for
the
ann
ed/3
each
cail
pose
do
fn
ot
less
than
thre
eco
mm
issi
oned
off
icers
or
civ
ilia
ns,
each
of
who
mm
ust
be
am
em
ber
of
the
bar
of
aF
eder
alco
urt
or
of
the
hig
hest
co
urt
of
aS
tate
.(b
)T
heJu
dg
eA
dvoc
ate
Gen
eral
shall
refe
rto
ab
oard
01'
rev
iew
the
reco
rdin
ever
yca
seo
ftr
ial
by
co
urt
-mart
ial
inw
hich
"the
sen
ten
ce,
as
app
rov
ed,
aff
ects
ag
ener
alo
rfl
ag
off
'1ce
ro
rex
ten
ds
"to
death
,d
ism
1ss
alo
fa
com
mis
sion
edo
ff'1
cer,
cad
et,
or
mid
sh
ipD
an,
dis
ho
no
rab
leo
rb
ad-c
on
du
ctd
isch
arg
e,o
rco
nf'in
emep
,tfo
ron
ey
ear
or
mo
re.
(c)
Ina
case
refe
rred
toit
,th
eb
oar
do
fre
vie
wm
ayact
on
lyw
ith
resp
ect
toth
efi
nd
ing
and
sen
ten
ceas
app
rov
edb
yth
eco
nv
enin
gau
tho
rity
.It
may
aff'
1rm
on
lysu
chfi
nd
ing
so
fg
ull
ty,
and
the
sen
ten
ceo
rsu
chp8
.rt
or
amou
nto
fth
ese
nte
nce
,as
it
fin
ds
co
rrect
inla
wan
dfa
ct
and
det
erm
ines
,on
the·b
asi
so
fth
een
tire
reco
rd,
sho
uld
:be
ap
p
rov
ed.
Inco
nsi
der
ing
the
reco
rd,
itm
ayw
eigh
the
evid
ence
,ju
dg
eth
ecre
dib
ilit
yo
fw
itn
esse
s,an
dde
texm
ine
con
tro
ver
ted
qu
esti
on
so
ffa
ct,
reco
gn
izin
gth
at
the
tria
lco
urt
saw
and
hea
rdth
ew
itn
esse
s.(d
)If
the
bo
ard
of
rev
iew
sets
asi
de
the
fin
din
gs
and
sen
ten
ce,
itm
ay,
exce
pt
whe
reth
ese
ttin
gasi
de
isb
ased
onla
ck
of
suff
'1ci
ent
evid
ence
inth
ere
cord
tosu
pp
ort
the
fin
din
gs,
ord
er
are
h
eari
ng
.If
it
sets
asi
de
the
fin
din
gs
and
sen
ten
cean
dd
oes
no
to
rder
are
heari
ng
,it
shall
·ord
erth
e.t
the
char
ges
be
dis
mis
sed
.(e
)T
heJu
dge
Adv
ocat
eG
ener
alsh
all
,u
nle
ssth
ere
isto
be
furt
her
acti
on
by
the
Pre
sid
en
t,th
eS
ecre
tary
con
cern
ed,
or
the
Co
urt
ofMili~
tary
Ap
pea
ls,
·in
stru
ct
the
con
ven
ing
au
tho
rity
tota
ke
acti
on
inac
cord
ance
wit
hth
ed
ecis
ion
of
the
bo
ard
of
rev
iew
.If
the
bo
ard
of
rev
iew
has
ord
ered
are
heari
ng
bu
tth
eco
nv
enin
gau
th
ori
tyfi
nd
sarehe~ng
im,p
ract
icab
le,
he
may
dis
m1
ssth
ecb
arg
es.
(f')
The
Judg
eA
dvoc
ates
Gen
eral
shall
pre
scri
be
unif
ol"/
Jlru
les
of
pro
ced
ure
for
bo
ard
so
fre
vie
wan
dsh
all
mee
tp
eri
od
icall
yto
form
ula
tep
oli
cie
s
toa
bo
ard
of
rev
iew
each
reco
rdo
ftr
ial
by
co
urt
-mart
ial
inw
hich
the
app
rov
edse
nte
nce-
(1)
exte
nd
sto
dea
thj
(2)
aff
ects
ag
ener
alo
rfl
ag
otf
'1ce
rj(3
)ex
ten
ds
toth
edi
Sll
l1ss
alo
fa
com
mis
si
on
edo
ff'1
cer
or
cad
eto
rm
idsh
ipD
anj
or
(4)
inC
lud
esa
dis
ho
no
rab
leo
rb
ad-c
on
d
uct
dis
char
ge
or
con
fin
emen
tfo
ron
ey
ear
or
mo
re,
un
less
the
accu
sed
ple
aded
gu
ilty
toea
cho
ffen
seo
fw
hich
he
was
fou
nd
gu
ilty
.
****
(e)
The
Judg
eA
dvoc
ate
Gen
eral
may
dis
mis
sth
ech
arg
eslo
Ihen
ever
the
bo
ard
of
rev
iew
has
ord
ered
are
hea
rin
gan
dh
efi
nd
sa
reh
eari
ng
imp
racti
cab
le.
Oth
erw
ise,
the
JUdg
eA
dvoc
ate
Gen
eral
shall
,u
nle
ssth
ere
isto
be
furt
her
acti
on
by
the·
Pre
sid
en
t,th
eS
ecre
tary
con
ce
rned
,o
rth
eC
ou
rto
fM
ilit
ary
Ap
pea
ls,
in
stru
ct
the
con
ven
ing
au
tho
rity
tota
ke
acti
on
inac
cord
ance
wit
hth
ed
ecis
ion
of
the
bo
ard
of
rev
iew
.If
the
bo
ard
of
rev
iew
has
ord
ered
are
heari
ng
and
the
con
ven
ing
au
tho
rity
fin
ds
are
heari
ng
im,p
ract
icab
le,
he
may
diS
lll1
ssth
ech
arg
es.
**
**
forc
es,
exce
pt
that
whe
nth
eC
oas
tG
uard
isn
ot
op
erat
ing
asa
serv
ice
in·t
he
Nav
y,th
eS
ecre
tary
of
the
Tre
asu
rysh
all
con
sti
tute
one
or
mor
eb
oar
ds
of
rev
iew
for
the
Co
ast
Gua
rd.
Eac
hb
oar
do
fre
vie
wsh
all
be
com
pose
do
fn
ot
less
than
thre
eco
mm
issi
oned
off
icers
or
civ
ilia
ns,
each
of
who
mm
ust
be
am
embe
ro
fth
eb
ar
of
aF
eder
alco
urt
or
of
the
hig
hes
tco
urt
of
aS
tate
.A
com
mis
sion
edo
ffic
er
deta
iled
tose
rve
ona
bo
ard
of
rev
iew
shall
serv
eth
ereo
nu
nti
lre
liev
ed
ther
efro
mb
yth
eS
ecre
tary
who
co
nst
itu
ted
the
bo
ard
of
rev
iew
,an
dis
exem
ptfr
omth
ep
rov
isio
ns
of
secti
on
s30
31(c
),·
3031
(d),
8031
(c)
and
8031
(d)
of
this
titl
e.
An
off
'1ce
ro
fth
eN
avy
or
Mar
ine
Cor
psse
rvin
gon
ab
oar
do
fre
vie
wsh
all
be
eli
gib
lefo
rp
ro
mo
tio
nw
ith
ou
t.r
egar
dto
the
req
uir
emen
tsfo
rse
ad
uty
or
fore
ign
serv
ice.
The
Secre
tary
,ho
wev
er,
may
est
ab
lish
bo
ard
so
fre
vie
ww
ith
ino
rw
ith
ou
tth
eU
nit
edS
tate
s.A
com
mis
sion
edo
tf'1
cer
serv
ing
ona
bo
ard
of
rev
iew
shall
be
rate
dfo
rfi
tness
,eff
icie
ncy
,an
dp
erfo
nn
ance
of
du
tyo
nly
by
the
Secre
tary
who
co
nst
itu
ted
the
bo
ard
of
rev
iew
.*
**
*
1'1
and
pro
ced
ure
inre
gard
tore
vie
wo
fco
urt
-m
art1
.al
case
sin
the
off
ices
of
the
JUdg
eA
dv
oca
tes
Gen
eral
.an
db
yb
oar
ds
of
rev
iew
.
1186
1.A
rt.
61.
Rev
iew
by
the
co
urt
of
Mil
itary
6867
.A
rt.
67.
Rev
iew
by
the
Co
urt
of'M
lll.
-18
61.
Art
.61
.R
evie
wb
yth
eC
ou
rto
fM
:ll1
tary
~.****
tw
App
ealS
.*
**
*~.****
dIn
an
yca
sere
vie
wed
by
it,
the
cou
rto
fM
ili-
(fA
fte
rit
has
acte
do
na
case
,th
eC
ou
rtd
Inan
yca
sere
vie
wed
by
it,
the
Co
urt
of'
tary
Ap
pea
lsm
ayact
on1.
yw
ith
resp
ect
toth
eo
fM
ilit
ary
Ap
pea
lsm
ayd
irect
the
Ju
dg
eM
U1
tary
Ap
pea
lsm
ayact
on
lyw
ith
resp
ect
tofi
nd
ing
san
dse
nte
nce
as
app
rov
edb
yth
eco
nv
enin
gA
dvoc
ate
Gen
eral
tore
turn
the
reco
rdto
the
fin
din
gs
and
sen
ten
ceas
app
rov
edb
yth
eau
tho
rity
and
as
affi
rmed
or
set
asi
de
asin
co
r-th
eb
oar
do
fre
vie
wfo
rfu
rth
er
rev
iew
inco
nv
enin
gau
tho
rity
and
as
affi
rmed
or
set
rect
inla
wb
yth
eb
oa
rd,o
fre
vie
w.
Ina
case
whi
chac
cord
ance
wit
hth
ed
ecis
ion
of
the
cou
rt.
asi
de
as
inco
rrect
inla
wb
yth
eb
oar
do
fre
-th
eJU
dse
Adv
ocat
eG
ener
al.
ord
ers
sen
tto
the
Co
urt
The
Judg
eA
dvoc
ate
Gen
eral
may
dis
mis
sth
ev1
ew.
Ina
case
whi
chth
eJu
dge
Adv
ocat
eG
en-
of'
Mil
itary
Ap
pea
ls,
that
acti
on
nee
db
eta
ken
on
lych
arg
esw
hene
ver
the
Co
urt
of
M1l
1tar
TA
p-era
!o
rders
sen
tto
the
Co
urt
of
Mil!t
ary
Ap-
11th
resp
ect
toth
eis
sues
rais
ed
by
him
.In
aca
sep
eals
has
ord
ered
are
heari
ng
and
he
fin
ds
peals
,th
at
acti
on
nee
db
eta
ken
on
lyw
ith
rev
1ew
dup
onp
eti
tio
nof
'th
eac
cuse
d,
that
acti
on
are
heari
ng
imp
ract
icab
le.
Oth
e1"W
i.se,
un
-re
spect
toth
eis
sues
rais
ed
by
him
.In
aca
sen
eed
be
take
no
nly
wit
h'r
esp
ect
tois
sues
specif
ied
less
there
isto
be
furt
her
acti
on
by
the
rev1
ewed
upon
peti
tio
no
fth
eac
cuse
d,
that
ac-
inth
eg
ran
to
fre
vie
w.
The
Co
urt
of
Mil
itary
Ap-
Pre
sid
en
to
rth
eS
ecre
tary
con
cern
ed,
the
tio
nn
eed
be
tak
eno
nly
wit
hre
spect
tois
sues
peals
shall
tak
eacti
on
on
lyw
ith
resp
ect
tom
at-
Jud
ge
Adv
ocat
eG
ener
al..
shall
inst
ruct
the
specif
ied
inth
eg
ran
to
fre
vie
w.
The
Co
urt
of
ters
of'
law
.*
**
*co
nv
enin
gau
tho
rity
tota
ke
acti
on
inac-
M1l
1tar
;yA
pp
eals
may
aff
irm
on
lysu
chfi
nd
ing
s(f
')A
fterit
ha
sacte
don
acase
,th
eC
ou
rto
fco
rdsn
cew
ith
that
decis
ion
.If
'th
eco
urt
of'
gu
ilty
as
it
fin
ds
co
rrect
inla
wan
df'
act
MU
1ta
ryA
pp
eals
may
dir
ect
the
Jud
seA
dvoc
ate
has
ord
ered
are
heari
ng
,b
ut
the
con
ven
ing
and
det
erm
ines
,on
the
basi
sof
'th
een
tire
Gen
eral
.to
retu
rn·t
he
reco
rdto
the
bo
ard
of
re-
au
tho
rity
fin
ds
are
hea
rin
gim
pra
cti
cab
le,
reco
rd,
sho
uld
be
app
rov
ed.
Inco
nsi
der
ing
the
v1ew
for
furt
her
rev
1ew
inac
cord
ance
wit
hth
eh
em
ayd
ism
iss
the
char
ges
.*
**
*re
co
rd,
it
may
wei
ghth
eev
iden
ce,
JUdg
eth
ed
ecis
ion
of'
the
co
urt
.o
ther
wis
e,u
nle
ssth
ere
cre
dib
1l1
tyof
'w
itn
esse
s,an
dd
eter
min
eco
n-
isto
be
fUrt
her
acti
on
by
the
Pre
sid
en
to
rth
etr
ov
ert
ed
qu
esti
on
so
ffa
ct,
reco
gn
izin
gth
at
se
cre
tary
con
cern
ed,
the
Jud
ge
Adv
ocat
eG
ener
alth
etr
ial
cou
rtsa
w·a
nd
hea
rdth
ew
itn
esse
s.sh
all
inst
ruct
the
con
ven
ing
au
tho
rity
tota
ke
****
acti
on
inacco~ce
wit
hth
at
dec
isio
n.
Ifth
eco
urt
has
ord
ered
are
heari
ng
,b
ut
the
con
ven
ing
-u
tho
rity
fin
ds
are
heari
ng
imp
ract
icab
le,
he
may
Jill
ll1s
8th
ech
arg
es.*
**
*11
869.
Art
.69
.R
evie
win
the
off
ice
of
the
Jud
ge
6869
.A
rt.
69.
Rev
iew
inth
eo
ffic
eof
'th
e18
69.
Art
.69
.R
evie
win
the
off
ice
of'
the
Adv
ocat
eG
ener
al..
Ev
ery
reco
rdo
ftr
ial
by
gen
-JU
dge
Adv
ocat
eG
ener
al..
Ev
ery
reco
rdo
fJU
dge
Adv
ocat
eG
ener
al.
ei'8
1co
urt
-mart
ial,
inw
hich
there
bas
bee
na
tria
lb
yco
urt-
llU
!Xti
alfo
rwar
ded
toth
eNO
CHA
NG
Eti
ncl1
nso
fg
uil
tyan
da
sen
ten
ce,
the
ap
pell
ate
Judg
eA
dvoc
ate
Gen
eral
.u
nd
erse
cti
on
865.
rev
iew
of
whi
chis
no
to
ther
wis
ep
rov
ided
for
by
of
this
titl
e(a
rtic
le6
5),
the
ap
pell
ate
secti
on
866
of
this
titl
e(a
rtic
le66
),sh
all
be
rev
iew
of
whi
chis
no
to
ther
wis
ep
rov
ided
exam
1ned
inth
eo
ffic
eo
fth
eJu
dge
Adv
ocat
eio
rb
yse
cti
on
86~
or
866
of
this
titl
eo
ener
al..
Ifan
yp
art
of
the
fin
din
gs
or
sen
ten
ceart
icle
65o
r66
,sh
all
be
emm
:lne
clin
."
Ir
isf'
ound
un
sup
po
rted
inla
w,
or
ifth
eJu
dge
Adv
ocat
eG
ener
also
dir
ects
,th
ere
cord
shall
be
rev
iew
edb
ya
bo
ard
of
rev
iew
inac
cord
ance
wit
hse
cti
on
866
of
this
titl
e(a
rtic
le6
6),
bu
1;
inth
at
even
tth
ere
may
be
nofu
rth
er
re
vie
wb
yth
eC
ou
rto
fM
ilit
ary
App
eals
exce
pt
un
der
secti
on
86
7(b
)(2
)o
fth
isti
tle
(ar
ticle
67
(b)
(2»
.
1187
1.A
rt.
71
.E
xec
uti
on
of'
sen
ten
ce;
susp
en
sie
ad
sen
ten
ce.
(a)
No
co
urt
-mart
ial
sen
ten
ceex
ten
din
gto
dea
tho
rin
vo
lvin
ga
gen
eral
or
f'l.
ag
off
icer
may
beex
ecu
ted
un
til
app
rov
edb
yth
eP
resi
den
t.H
esh
all
app
rov
eth
ese
n
ten~
or
such
part
,am
ount
,o
rco
rmnu
ted
form
of'
the
sen
ten
ceas
he
sees
fit
,an
dm
aysu
sp
end
the
exec
uti
on
of
the
sen
ten
ceo
ran
yp
art
of'
the
sen
ten
ce,
asap
pro
ved
by
him
,ex
cep
ta
dea
thse
nte
nce
.(b
)N
ose
nte
nce
exte
nd
ing
toth
ed
ism
issa
lo
fa
com
mis
sion
edo
ffic
er_
(oth
er
than
ag
en
era
lo
rfl
ag
of'
ficer)
,cad
et,
or
mid
ship
man
'lIII.
yb
eex
ecu
ted
un
til
app
rov
edb
yth
ese
cre
v
ary
con
cern
ed,
or
such
Und
erS
ecre
tary
or
Ass
ista
nt
secre
tary
as
may
be
des
ign
ated
by
h1II
l.H
esh
all.
app
rov
eth
ese
nte
nce
or
such
part
,am
ount
,o
rco
rmnu
ted
form
of
the
sen
te
nce
as
he
sees
fit
,an
dm
aysu
spen
dth
eem
cu
tio
no
fa
ny.
part
of
the
sen
ten
ceas
app
rov
edb
yh
im.
Inti
me
of
'War
or
nati
on
al
emer
gen
cy,
he
may
cC8I
IIIIU
tea
sen
ten
ceo
fd
isad
.ssa
lto
red
uct
ion
toan
yen
list
ed
grad
e.A
per
son
sore
du
ced
may
be
req
uir
edto
serv
efo
rth
ed
ura
tio
no
fth
e'W
aro
rem
er
gen
cyan
dsi
xm
onth
sth
ere
aft
er.
the
off
ice
of
the
Jud
ge
Adv
ocat
eG
ener
al.
Ifan
yp
art
of
the
fin
din
gs
or
sen
ten
ceis
fou
nd
un
sup
po
rted
inla
w,
the
Jud
seA
d
vo
cate
Gen
eral
shal
l.eit
her
refe
rth
e.
reco
rdto
ab
oar
do
fre
vie
wfo
rre
vie
wu
nd
erse
cti
on
86
6o
fth
isti
'tle
(art
icle
66
)o
rta
ke
such
acti
on
inth
eca
seas
ab
oar
do
fre
vie
wm
ayu
nd
erse
cti
on
866
(c)
and
(d)
of
this
titl
.e(a
rtic
le66
(c)
and
(d»
.If
'th
ere
co
rdis
rev
iew
edb
ya
bo
ard
of
rev
iew
,th
ere
will.
be
nofu
rth
er
rev
iew
by
the
Co
urt
of
Mil
itary
App
eals
exce
pt
un
der
secti
on
86
7(b
)(2
)o
fth
isti
tle
(art
icle
67(b
)(2»~
1187
1.A
rt.
71
.E
xec
uti
on
of
sen
ten
ce;
sus
pen
sio
no
fse
nte
nce
.(a
)N
oco
urt
-mart
ial
sen
ten
ceex
ten
din
gto
dea
tho
rin
vo
1v1
ng
ag
ener
alo
rn
ag
off
icer
may
be
exec
ute
du
n
t11
app
rov
edb
yth
eP
resi
den
t.H
esh
all
ap
p
rov
eth
ese
nte
nce
or
such
part
,am
ount
,o
rcc
min
uted
form
of
the
sen
ten
ceas
he
sees
fit
,an
dm
aysu
spen
dth
eex
ecu
tio
no
fth
ese
nte
nce
or
any
part
of
the
sen
ten
ce,
as
app
rov
edb
yh
im,
exce
pt
ad
eath
"sen
ten
ce.
No
accu
sed
may
accr
ue
pay
or
al10
wan
ces
aft
er
the
con
ven
ing
au
tho
rity
app
rov
esa
sen
ten
ceo
fd
eath
,u
n1
ess
that
sen
te
nce
1s
set
asi
de
or
dis
app
rov
edan
da
sen
te
nce
of
dea
this
no
tad
jud
sed
by
ano
ther
co
urt
aft
er
are
heari
ng
or
new
tria
l.(b
)T
hat
po
rtio
no
fa
sen
ten
ceex
ten
din
gto
the
dis
mis
sal
of
aco
mm
issi
oned
off
icer
or
aca
det
or
mid
shi]
;lllB
nm
ayn
ot
be
exec
ute
du
nti
l.ap
pro
ved
by
the
Secre
tary
con
cern
ed,
or
such
Und
erse
cre
ta
ryo
rA
ssis
tan
tse
cre
tary
as
may
'bed
esig
nat
edb
yh
im.
He
shall
app
rov
eth
ese
nte
nce
or
such
part
,am
ount
,o
rC
OIII
IIUte
df'o
rmo
fth
ese
nte
nC
eas
he
sees
fit
,an
dm
aysu
spen
dth
eex
ecu
tiea
of'
an
y.:P
&rt
of
the
sen
ten
ceas
app
rov
edb
yh
im.
Inti
me
of'
'War
or
nat
ion
aJ.
emer
genc
yh
em
ayC
all1
llllte
ase
nte
nce
of
dis
mis
sal
tore
du
cti
on
toa
ny
en
li
ste
dg
rad
e.
Ap
erso
nso
rec1
u.ce
dm
ayb
e
NOCH
ANGE
/6
(c)
No
sen
ten
cew
hich
inclu
des,
un
susp
end
ed,
ad
ish
on
ora
ble
or
bad
-co
nd
uct
dis
char
ge,
or
con
fin
emen
tf'
or
one
yea
ro
rm
ore,
may
be
exe
cute
du
nti
laf
'fir
med
by
ab
oar
dof
're
vie
wan
d,
inca
ses
rev
iew
edb
yit
,th
eC
ou
rtof
'M
illt
ary
App
ea1.
s.(d
)A
ll.
oth
er
co
urt
-mart
ial
sen
ten
ces,
un
less
susp
end
ed,
may
be
ord
ered
exec
ute
db
yth
eco
nv
en
ing
au
tho
rity
whe
nap
pro
ved
by
him
.T
heco
nv
en
ing
.au
tho
rity
.my
susp
end
the
exec
uti
on
of'
any
sen
ten
ce,
exce
pt
ad
eath
sen
ten
ce.
1187
3.A
rt.
73.
Peti
tio
nf'
or
ane
wtr
ial.
At
an
yti
me
wit
hin
one
yea
raf'
ter
app
rov
alb
yth
eco
n
ven
ing
au
tho
rity
of'
aco
urt
-mart
ial
sen
ten
cew
hic
hex
ten
ds
tod
eath
,d
ism
issa
l,d
ish
on
ora
ble
or
bad
-co
nd
uct
dis
char
ge,
or
con
fin
emen
tf'
oro
ne
year
or
mo
re,
the
accu
sed
may
peti
tio
nth
e.Ju
dg
eA
dvoc
ate
Gen
eral
f'or
ane
wtr
ial
onth
eg
rou
nd
of
new
lyd
isco
ver
edev
iden
ceo
rfr
aud
on
the
co
urt
.If
the
accu
sed
'sca
seis
pen
d
ing
bef
ore
the
bo
ard
of'
rev
iew
or
bef
'ore
the
Cou
rtof
'M
ilit
ary
Ap
pea
ls,
the
Jud
ge
Adv
ocat
eG
ener
alsh
all
ref'
er
the
peti
tio
nto
the
bo
ard
or
co
urt
,as
the
case
may
be,
for
acti
on
.o
ther
wis
eth
eJU
dge
Adv
ocat
eG
ener
alsh
all
act
upon
the
peti
tio
n.
req
uir
ed
tose
rve
f'or
the
du
rati
on
of'
the
war
or
emer
genc
yan
dsi
xm
on
thst
here
af'
ter.
(c)
Th
atp
ort
ion
of'
ase
nte
nce
exte
nd
ing
tod
ish
on
ora
ble
or
bad
-co
nd
uct
dis
char
ge
may
no
tb
eex
ecu
ted
un
til
app
rov
edb
yth
eJu
dge
Adv
ocate
Gen
eral
or
af'f
'irm
edb
ya
bo
ard
of'
rev
iew
,as
the
case
may
be,
and
,in
case
sre
vie
wed
by
it,
af'f
irm
edb
yth
eC
ou
rtof
'M
ilit
ary
Ap
pea
ls.
(d)
All
oth
er
co
urt
-mart
ial
sen
ten
ces
and
po
rti
on
sof
'se
nte
nce
s,u
nle
sssu
spen
ded
,m
ayb
eo
rder
edex
ecu
ted
by
the
con
ven
ing
au
tho
rity
whe
nap
pro
ved
by
him
.T
heco
nv
enin
gau
tho
rity
may
susp
end
the
exec
uti
on
of'
any
sen
ten
ce,
ex
ce
pt
ad
eath
sen
ten
ce.
1187
3.A
rt.
73.
Peti
tio
nfo
ra
new
tria
l.A
tan
yti
me
wit
hin
two
yea
rsaft
er
app
rov
alb
yth
eco
nv
enin
gau
tho
rity
of
aco
urt
-mart
ial
sen
ten
cew
hich
exte
nd
sto
dea
th,
dis
mis
sal,
dis
ho
no
rab
leo
rb
ad-c
on
du
ctd
isch
arg
e,o
rco
nfi
nem
ent
for
one
yea
ro
rm
ore
,th
eac
cuse
dma
yp
eti
tio
nth
eJu
dg
eA
dvoc
ate
Gen
eral
for
ane
wtr
ial
onth
egr
ound
of
new
lyd
isco
ver
edev
iden
ceo
rfr
aud
onth
eco
urt
.If
the
ac
cu
sed
'sca
seis
pen
din
gb
ef'o
reth
eb
oar
do
fre
vie
wo
rb
efo
reth
eC
ou
rto
fM
ilit
ary
Ap
peals
,th
eJu
dge
Adv
ocat
eG
ener
alsh
all
re
fer
the
peti
tio
nto
the
bo
ard
or
co
urt
,as
the
case
may
be,
for
acti
on
.T
heb
oar
do
fre
vie
wo
rth
eC
ou
rto
fM
ilit
ary
App
ealS
,as
the
case
may
be,
shall
det
erm
ine
wh
eth
era
new
tri8
.l,
inw
hole
or
inp
art
,sh
ou
ldb
eg
ran
ted
or
shall
tak
eap
pro
pri
ate
acti
on
un
der
secti
on
866
or
867
of
this
titl
e(a
rti
cle
66o
r67
),re
specti
vely
.o
ther
wis
e,th
eJu
dge
Adv
ocat
eG
ener
alm
ayg
ran
ta
new
tria
lin
who
leo
rin
part
or
may
vac
ate.
or
mo
dif
yth
efi
nd
ing
san
dse
nte
nce
inw
hole
or
inp
art
.
NOCH
ANGE
1876
.A
rt.
76.
Fin
al:1
tyo
fp
roce
edin
gs,
fin
d
ing
s,an
dse
nte
nce
s.T
heap
pell
ate
rev
iew
of
reco
rds
of
tria
lp
rov
ided
by
this
ch
ap
ter,
the
pro
ceed
ing
s,f1
nd
ing
s,an
dse
nte
nce
so
fco
urt
sm
art
ial
as
app
rov
ed,
rev
iew
ed,
or
a:ff
'i:nn
edas
req
uir
ed
by
this
ch
ap
ter,
and
all
dis
mis
saJ.
san
dd
isch
arg
escarr
ied
into
exec
uti
on
un
der
sen
ten
ces
by
co
urt
s-m
art
ial
foll
ow
ing
app
rov
al.,
rev
iew
,o
ra1
'1'ir
ms.
tion
as
req
uir
ed
by
this
ch
ap
ter,
are
fin
al.
and
con
cJ.u
siv
e.O
rder
sp
ub
lish
ing
the
pro
ce
edin
gs
of
cou
rts-
ma.
rtia
J.an
daJ
.lacti
on
tak
enp
urs
uan
tto
tho
sep
roce
edin
gs
are
bin
din
gup
ona
lld
epar
tmen
ts,
co
urt
s,ag
en
cie
s,an
do
:ff'
icer
sof
-th
eU
nit
edS
tate
s,su
bje
ct
on
lyto
acti
on
up
o
na
peti
tio
nfo
ra
new
tria
J.as
pro
vid
edin
sec
tio
n81
3o
fth
isti
tle
(art
icJ.
e13
)an
dto
acti
on
by
the
secre
tary
con
cern
edas
pro
vid
edin
secti
on
814
of
this
titl
e(a
rtic
le1
4),
and
the
au
tho
rity
of
the
Pre
sid
en
t.
1895
.A
rt.
95.
Resi
stan
ce,
bre
ach
of
arr
est,
and
esca
pe.
An
yp
erso
nsu
bje
ct
toth
isch
apte
rw
hore
sis
tsap
pre
hen
sio
no
rb
reak
sarr
est
or
who
es
cap
esf'
raa
cust
od
yo
rco
nfi
nem
ent
shall
be
pu
n
ish
ed
as
aco
urt
-mart
ial
may
dir
ect.
1896
.A
rt.
96.
No
nca
np
lian
cew
ith
pro
ced
ura
lru
les.
An
yp
erso
nsu
bje
ct
toth
isch
apte
rw
ho--
(1)
isre
spo
nsi
ble
for
un
nec
essa
ryd
elay
inth
ed
isp
osi
tio
no
fan
yca
seo
fa
per
son
accu
sed
of
ano
ffen
seu
nd
erth
isch
ap
ter;
or
(2)
know
:Lng
.l.y
and
inte
nti
on
all
yfa
ils
toen
fo
rce
or
com
ply
wit
han
yp
rov
isio
no
fth
isch
ap
ter
reg
ula
tin
gth
ep
roce
edin
gs
befo
re,
du
rin
g,
or
aft
er
tria
lo
fan
accu
sed
;sh
all
be
pu
nis
hed
as
aco
urt
-mart
ial
may
dir
ect.
NOCH
ANGE
1i18
95.
Art
.95
.R
esis
tan
ce,
bre
ach
of
arr
est,
and
esca
pe.
Any
per
son
sub
ject
toth
isch
ap
ter
who
resis
tsap
pre
hen
sio
no
r.b
reak
sar
rest
or
who
esca
pes
fro
mp
hy
sical
rest
ra.1
nt
law
full
yim
pose
dsh
all
be
pu
nis
hed
as
aco
urt
-mart
ial
may
dir
ect.
NOCH
ANGE
1816
.A
rt.
16.
Fin
ali
tyo
fp
roce
edin
gs,
fin
d
ing
s,
and
sen
ten
ces.
The
ap
pell
ate
rev
iew
of
reco
rds
of
tria
lp
rov
ided
by
this
ch
ap
ter,
the
pro
ceed
ing
s,fi
nd
ing
s,an
dse
nte
nce
so
fco
urt
sm
art
ial
as
app
rov
ed,
rev
iew
ed,
or
affi
:nn
edas
req
uir
ed
by
this
ch
ap
ter,
and
aud
ism
issa
lsan
dd
isch
arg
escarr
ied
into
exec
uti
on
un
der
sen
te
nce
sb
yco
urt
s-m
art
ial
foll
ow
ing
app
rov
al.,
rev
iew
,o
raf
'f'i
rmat
ion
asre
qu
ired
by
this
chap
te
r,are
fin
al
and
con
cJ.u
siv
e.O
rder
sp
ub
lish
in
gth
ep
roce
edin
gs
of
co
urt
s-m
art
ial
and
all
acti
on
tak
enp
urs
uan
tto
tho
sep
roce
edin
gs
are
bin
din
gup
ona
lld
epar
tmen
ts,
co
urt
s,ag
en
cie
s,an
do
:ff'
icer
so
fth
eU
nit
edS
tate
s,su
bje
ct
on
ly
toacti
on
up
on
ap
eti
tio
nfo
ra
new
tria
las
pro
vid
edin
secti
on
873
of
this
titl
e(a
rti
cJ.e
13
),to
acti
on
by
ase
para
tio
nre
vie
wb
oa
rdas
pro
vid
edin
secti
on
ll6
6o
fth
isti
t],e
.an
dto
acti
on
by
the
Secre
tary
con
cern
edas
pro
vid
edin
secti
on
814
of
this
titl
e(a
rtic
J.e
14
),an
dth
eau
tho
rity
of
the
Pre
sid
en
t.
NOCH
ANGE
118!?8
.Art
.96
.N
onco
mpl
ianc
ew
ith
pro
ced
ura
lru
les.
Any
per
son
sub
ject
toth
isch
ap
ter
wh
o-
--rr
)is
resp
on
sib
lefo
ru
nn
eces
sary
del
ayin
the
dis
po
siti
on
of
any
case
of
ap
erso
nac
cuse
do
fan
off
ense
un
der
this
ch
ap
ter;
(2)
know
ingl
yan
din
ten
tio
nall
yfa
ils
toen
forc
eo
rcan
ply
wit
han
yp
rov
isio
no
fth
isch
apte
rre
gu
lati
ng
the
pro
ceed
ing
sb
efo
re,
du
rin
g,
or
aft
er
tria
lo
fan
accu
sed
;2!
:(3
)re
fuse
so
rw
illf
llll
yn
eg
lects
toen
fo
rce
orC~y
wit
hth
ep
rov
isio
ns
of
secti
on
814
la)
O:t
irB
titl
e;
shall
be
pu
nis
hed
asa
co
urt
-mart
ial
ma.y
dir
ect.
19
18
.A
rt.
ll8
.M
urd
er.
Any
per
son
sub
ject
toth
isch
apte
rw
ho,
wit
ho
ut
just
ific
ati
on
or
ex
cu
se;
un
law
f'u
lly
kil
lsa
hum
anb
ein
g,
whe
nh
e--
(1)
has
ap
rem
edit
ated
des
ign
tok
ill;
(2)
inte
nd
sto
kil
lo
rin
flic
tg
reat
bo
dil
yh
arm
· .. (3)
isen
gag
edin
anact
whi
chis
inh
ere
ntl
yd
ang
ero
us
too
thers
and
evin
ces
aw
anto
nd
isre
-g
ard
of
hum
anli
fe;
or
.(~)
isen
gag
edin
the
perp
etr
ati
on
or
atte
mp
ted
perp
etr
ati
on
of
bu
rgla
ry,
sodo
my,
rap
e,
rob
ber
y,
or
agg
rav
ated
ars
on
;is
gu
ilty
of
mu
rder
,an
dsh
all
sutt
er
such
pu
n
ish
men
tas
aco
urt
-mart
ial
may
dir
ect,
exce
pt
that
iffo
un
dg
uil
tyu
nd
ercl
ause
(1)
or
(~),
he
shall
suff
er
dea
tho
rim
pri
son
men
tfo
rli
feas
aco
urt
m
art
ial
may
dir
ect.
8920
.A
rt'.
l2O
.R
ape
and
carn
al
know
ledg
e.(a
)A
nyp
erso
nsu
bje
ct
toth
isch
ap
ter
who
cOlll
lllits
anact
of
sex
ual
inte
rco
urs
ew
ith
afe
mal
en
ot
his
wif
e,
by
forc
ean
dw
ith
ou
th
er
con
sen
t,is
gu
ilty
of
rap
ean
dsh
all
be
pu
nis
hed
by
dea
tho
rsu
cho
ther
pu
nis
hm
ent
as
aco
urt
-mart
ial
may
dir
ect.
(b)
Any
per
son
sub
ject
toth
isch
apte
rw
ho,
un
d
er
circ
um
stan
ces
no
tam
ount
ing
tora
pe,
cOlll
lllit
san
act
of
sex
ual
inte
rco
urs
ew
itb
afe
mal
en
ot
his
wif
ew
hoh
asn
ot
att
ain
ed
the
age
of
six
teen
years
,is
gu
ilty
of
carn
al
know
ledg
ean
dsh
all
be
pu
nis
hed
as
aco
urt
-mart
ial
may
dir
ect.
(c)
Pen
etr
ati
on
,ho
wev
ersl
igh
t,is
suff
icie
nt
toca
np
lete
eit
her
of
these
off
en
ses.
19
3•
Art
.1
3•
Au
tho
rity
toad
min
iste
ro
ath
san
dto
act
as
no
tary
.*
**~
(b)
The
foll
ow
ing
per
son
son
acti
ve
du
tym
ayad
min
-is
ter
oat
hs
nec
essa
ryin
the
per
f'o
nn
snce
of
their
.d
uti
es:
NOCH
ANGE
NOCH
ANGE
NOCH
ANGE
19
18
.A
rt.
11
8.
Mur
der.
Any
per
son
sub
ject
toth
isch
ap
ter,
who
wit
ho
ut
just
ific
ati
on
or
excu
.se,
unJ.
awf'
ully
kil
lsa
hum
anb
ein
g,
whe
nh
e--
(1)
has
ap
rem
edit
ated
des
ign
tokill;
(2)
inte
nd
sto
kil
lo
rin
flic
tg
reat
bo
d
ily
harm
;(3
)is
eng
aged
inan
act
whi
chis
inh
er
en
tly
dan
ger
ou
sto
oth
ers
and
evin
ces
aw
anto
nd
isre
gard
of
hum
anli
fe;
or
(4)
isen
gag
edin
the
perp
etr
ati
on
or
at
tem
pte
dp
erp
etr
ati
on
of
bu
rgla
ry,
sodo
my,
rap
e,
rob
ber
y,
or
agg
rav
ated
arso
n;
isg
uil
tyo
fm
urd
er,
and
shall
suff
er
such
pu
nis
hm
ent
as
aco
urt
-mart
ial
may
dir
ect,
ex
ce
pt
thatif
fou
nd
gu
ilty
un
der
clau
se(1
)o
r(~),
he
shall
suff
er
dea
tho
rim
pri
son
men
tfo
rli
feas
aco
urt
-mart
ial
may
dir
ect.
No
per
son
shall
be
trie
db
yco
urt
-mart
ial
for
mu
rder
com
m
itte
din
the
Un
ited
Sta
tes
inti
me
of
pea
ce.
19
20
.A
rt.
12
0.Ra.~
and
carn
al
know
ledg
e.(a
)A
nyp
erso
nsU
DJe
c1ro
this
chaP
ter
wo
cOm
mits
anact
of
sex
ual
inte
rco
urs
ew
ith
afe
mal
en
ot
his
wif
e,
by
forc
ean
dw
ith
ou
th
er
con
sen
t,is
gu
ilty
of
rap
ean
dsh
all
be
pu
nis
hed
by
dea
tho
rsu
cho
ther
pu
nis
hm
ent
as
aco
urt
-mart
ial
may
dir
ect.
No
per
son
shall
be
trie
db
yco
urt
m
art
ial
for
rap
ecO
Olll
1tte
din
the
Un
ited
Sta
tes
inti
me
of
pea
ce.
**
**
19
36
.A
rt.
l36
.A
uth
ori
tyto
adm
inis
ter
oath
san
dto
act
as
no
tary
.*
**
*(b
)T
hefo
llo
win
gp
erso
ns
onacti
ve
du
tym
ayad
m
inis
ter
oat
hs
nec
essa
ryin
the
perf
01'll
l8D
ceo
fth
eir
du
ties:
(1)
The
pre
sid
en
t,la
wo
ffic
er,
tria
lco
un
se1
,an
dass
ista
nt
tria
lco
un
sel
for
all
gen
eral
and
specia
lco
urt
s-m
art
ial.
**
**
(1)
Th
ela
wo
ffic
er,
tria
lco
un
sel,
and
ass
ista
nt
tria
lco
un
se1
for
all
gen
eral
and
specia
lco
urt
s-m
art
ial.
**
**
ANALYSIS OF ;rHE NONJUDICIAL PUNISHMENT SYSTEM IN THE IDUTED STA'['ES ARMY
1. Function of Nonjudicial Punishment. To provide commanders with a prompt and efficient method of disposing of minor offenses and infractions of discipline which occur within their command requiring some.punishment but which are not sufficiently serious to warrant trial by court-martial. Article 15, Uniform Code of Mi11tary Justice (10 USC 815 ), authorizes ~onnnanders to impose limited forms of disciplinary punishments directly upon members of their command without the intervention of courts-martial. The Manual for Courts-Martial, United States, 1951, urges commanding officers to resort to the1rpower under-Article 15 in every case in which pQnishment is deemed necessary and that article applies, unless it is clear that punishment under that article would not meet the ends of justice and discipline. The Manual admonishes superior commanders to restrain any tendency of subordinate commanders to resort unnecessarily to court-martial jurisdiction for the punishment of offenders.
2. Authority to Impose Non,judicial Punishment. "Any commanding officer" may impose:nonjudicial punishrnentupon"personnel of hi~ command pursuant to A+ticle 15. Article 1(5) of the Code limits the term "commanding officer" to include only commissioned officers and although warrant officers may be assigned to COIDDl&"ld such units as Army bands they may not impose nonjudicial punishment since in the Army warrant officers are not commissioned. In the Army Article 15 may be exercised by commanding officers only--not by officers in charge.
3. Persons Subject to Nonjudicial Punishment. Officers, warrant officers, and other military personnel are subject to non~udicial punishment imposed by their commander. Civilians are not amenable to nonjudicial punishment.
4. Offenses Punishable Under Article 15. Only in the case of "minor" offeilSes is the imposition of nonjudicial punishmep.t authorized by Article 15. The yardstick prescribed by the Manual for determining a "minor'! offense characterizes the term to include misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court -ril&rtial. Beyond this broad outline the determination of whethl'er an offense may be considered minor depends on the +lature of the offense 1 the time and place of its commission, the person committing the offense and all the relevant circumstances.
5. Punishments Authorized Under Article 15. Generally there are three categories of" nonjUdicial punishments:
a. Those which apply equally to all military personnel. These inclUde admonitions, reprimands, withholding of privileges, and restrictions to limits of specif~ed area.s. The duration of any With. holding of privileges or restriction is limited to two consecutive weeks.
b. Those which apply only to officers and warr.ant officers. This category includes forfeiture of not to exceed one-half of one month I s pay and may be imposed only by an officer exercising general court-martial jurisdiction.
c. Those which apply to enlisted personnel. These include extra duties, not to exceed two hours a day for a period not in excess of two weeks, and reduction to t he next inferior grade. Commanders above the grade of captain may impose a one-pay-grade reduction under Article 15 of the Code (MCM, 1951, par. 131b(2)(c» for misconduct if the pay grade from which reduced is within the appointing authority of the commanding officer imposing the punishment or any Army commandar subordinate to him. A noncommissioned officer may not be reduced to a specialist grade under Article 15. Commanders below the grade of major may impose a one-pay-grade reduction under Article 15 of the Code (MCM, 1951), for misconduct upon privates first class and privates, E-2. (Par. 27b, Army Regulations 624-200,19 May 1958,) When imposed upon a person attached or embarked in a vessel, confinement not to exceed seven consecutive days or confinement on bread and water or diminished rations for a period not to exceed three consecutive days is authorized. A cOl11Il1ander is limited to imposing only one additional punishment in addition to or in lieu of admonition or reprimand.
6. Procedure.
a. The commander must initially satisfy himself by such investigation as he deems necessary that an offense punishable by him under Article 15 has been committed by a member ofhi s cO:tnmand and that an appropriate punishment may be imposed thereunder. Ho formal investigation is required and commanders often utilize reports of investigations by military police.
b. The cOl11Il18.1lder then notifies the offender of the nature of the offense in clear and concise terms and informs him that he proposes to impose punishment under ArtiCle 15 as to the offense unless trial by court-martial is demanded. The notification and information will be by written communication through channels in the 'case of an officer or warrant officer and may be by written communication in any case. Normally notification to noncommissioned officers is made in writing. In any type of notification to the offender, be must be advised of the following:
(1) The nature of the offense involved.
(2) That he has the right to demand trial by court-martial. Th§l Manual.fur 'Courts';'J1artilQ, Unitedstatee;i ,providef? that no discipli nary punishment "under the prmriSions 0 • C cle 15 may be imposed upon any member of the Army for an offense punishable thereunder if the accused has, prior to the imposition of such punishment, demanded trial by court-martial in lieu of such disciplinary punishment. An election to accept disciplinary punishment constitutes a waiver of the right to demand trial. A demand for trial does not req~re preferring" transmitting, or forwarding of charges, but punishplent may not be imposed under Article 15 while the demand is in effect.
2
(3) That he has the right to submit such matters as he desires in defense, mitigation or extenuation.
c. If the accused elects to accept Article 15 punishment, he is given a reasonable time to present any matters in defense, mitigation, or extenuation. If notif:l,cation is in writing, then acceptance or demand for court-martial will likewise be in writing. (Sample forms of correspondence arf;l"contained in Appendix 3b" MCM, 1951.)
d. If the accused does not demand trial by court-martial, the commander then considers any matters presented in defense and determines if punishment is warranted. If he determines that punishment is warranted he wil;!. consider the matt~r presented in extenuation or mitigation in determining the type and quantum of punishment. He Will inform the offender of the punishment imposed either orally or in wr:lting, as appropriate, and will also adv:l.se him of h:f,.s right to appeal in accordance with paragJ:"aph :1.34, Manual for CO\lrts -Martial, United States, 1951, to the next superioroommander. - ..
e. The accused then acknowledges receipt of the notification of the imposition of punishment and indicates his intention concerning any appeal. He has a reasonable time in which to :make an appeal.
f. If he chooses to appeal he will submit by indorsement or by letter a brief signed statement of the reasons for regarding the punishment as unjust or disproportionate. The immediate commanding officer of the accused will, when necessary, include w.l.th the a.ppeal a copy of the record of the case. Appeals are expeditiously handled and decided but the person punished may in the' meantime be required to undergo the punishment adjudged (Article l5d). Normally the superior will hear no witnesses and when justice so requires he will modify the punishment or set it aside but cannot increase it or change the kind of punishment.
g. The appellant will be informed of the decision on appeal and directed to return the papers to his commanding officer. The commanding officer of the accused is charged with the execution of punishment imposed pursuant to Article 15. The officer who imposed the punishment, his successor in command, and superior authority have power to suspend, set aside, o~ remit any part or amount of the punishment and restore all rigbts" pr:lvi1e~s, and property affected (Article l5d" UCMJ). '
7. Records of Nonjudicial Punishw.ent. In the case of an officer the record of nonjudicial punishment is forwarded to The Adjutant General, Department of the Army, for file in the officer's personnel file where it becomes a permanent record. (Paragraph 5, AR 640-98" 14 November 1955.) In the case of a soldier" a record of aU punishments administered under Article 15 is kept in the Unit Punishment Book. (A sample form is contained in Appendix 3a, MCM, 1951.) Where punishment is accomplished by written comm~ications and in~qrsements" these writings constitute the record. All r~duct:lo~~ of enl.iat~q, per~onne:J,. axe ~ounced in orders of the headc;Luarters Of the reductio~ autbor;\.ty. {Paragraph 31 ,
3
AR 624-200, 19 May 1958.) Required entries are then made in the accused's service record and copies of the order placed in his personnel file. LikeWise, action on appeal restoring all rights l privi1eges l and property I including pay and allowances, of which a reduced member was deprived by the re4uction will be announced in the orders revoking the reduction orders. (~ragraph 341 AR 624-200,19 May 1958.)
REFERENCES
Uniform Code of Mi1it'::EY Just~
P~C. 15 (10 U.S.C. 815) Commanding officer's nonjudicial punishment
Manual for Courts-Martial, 1951 (Executiye Order 1021~·, February 8, 1951)
Chapter XXVI -- Nonjudicial Punishment Appendix 3 -,. PUNISHMENT UNDER ARTICLE 15 - NONJUDICIAL PUNISHMENT
FORMS
Army" Ref$I;iJ-ations
.AR 624-200 - P.PPOINTIvlENT AND REDUCTION OF ENLISTED PERSONNEL, 19 May 1958 (as changed by Changes 1, 19 March 1959, and 2, 13 April 1959)
AR 640-98 ... Personnel Records, 14 November 1955 (as changed by Change 2, 11 May 1956)
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ANNEX F
ANALYSIS OF THE SID-lMARY COURT-MARTIAL SYSTEM IN THE UNITED STATES ARMY
1. Function of' a Summm Court-Martial. The function of a summary cotlrt-martial is to exercise justice promptly, under a simple form of procedure, tor relatively minor offenses not disposed of under Article 15. The summary court-martial consists of one commissioned officer who represents both the Government and the accused.
2. Jurisdiction of a Summa-IT C~-Ma.rtial. A summary courtmartial has jurisdiction over all noncapital offenses made punJahable by the Uniform Code of lviilitary Justice and jurisdiction to try all persons subject to the Code except officers, cadets, aviation cadets and midshipmen. No person with respect to whom summary courtsmartial have jurisdiction shall be brought to trial before a summary court-martial if he obje.::ts thereto unless under the proVisions of
. Article 15 he has been permitted and has elected to refuse punishment under such article.
3. Punishment Which May Be Adjudw=dby a SummalA': Court-Martial. A summary court-martial ma.y not adjudge a sentence in excess of the following:
a. Confinement for one month; or
b. Hard labor without confinement for 45 days; or
c. Restriction to specified limits for two months; and
d. Forfeiture of two-thirds of one month's pay; and
e. Reduction to the lowest enlisted pay grade. (In the case of specialists above pay grade E-4 and corporals, summary courtsmartial may not adjudge confinement or hard labor wi.thout confinement or reduction except to the next inferior pay grade. These restrictions are in addition to those impo$ed in paragraph 1Gb and 126c(2), Manual for Courts-Martial l United States, 1951. (Paragraph 6, Army Regulations 600-201, 20 June 1956, as changed by Change 1, dated 15 March 1957).)
4. .Who Mal Convene a S~ Court-Martial. A summary courtmartial may be convened by any ArMy commander who may convene a .general or special court-martial, the cOIQlIlal1der of a detached company or other detachment of the Army or the commanding officer of any other command when empowered by the Secretary of tbe Army. When but one officer is present With a command or detachment he shall be the summary court .. martial of tha.t command or detachment and shalJ. hear a.nd detennine all sununary court..martiaJ,. cases brought before him. Summary courtsmartial may, howeV\!r, be convened in e,ny case by superior competent authority When deemed desirable by him.
5. Procedures.
a. The unit commander. On receipt of charges indicating the commission of an offense by a member of his command for which the commander determines that pwlishment under Article 15 is not a.ppropriate or has in a proper case been refused by the accused, the commander will forward the charses to the commanding officer Who exercises summary court-martial jurisdiction over the accused with bIB recommendation as to appropriate disposition.
b. The convening author!ty. If the officer exercising summary court-martial jurisdiction over the accused considers that an appropriate punishment can be imposed in trial bysuJ'llmary court-martial he may refer the charges directly to a summary court ·-inertial for trial.
c. The summary court..marti~.
(1) P:r:l.oY.' to trial. Upon receipt of: charges the summary court-martial takes immed;l.ate action to bring the accused to trial. He first determines that a summary courl-martial is authorized to try the person and the offense. He carefully studies the charge sheet, allied papers, and the elements of the offense charged, a nd becomes familiar with the ruJ.esot evidence. Thereafter he sets tbe time and place for trial a.nd notities the accused and all witnesses to be present.
(2) Interview with accused immediately prior to trial. He tells the accused who he is and advises him of the general nature ot the charges, the tact that they have been referred to a summary court-martial for trial, the name of the officer who appointed the court and the name of the accuser. He explains his position as combination triaJ. counsel, defense counsel, and court and informs the accused that he will advise and assist him in every way possible. He tully explains the procedure to be followed and that he will call witnesses desired by the accused and will assist in questioning them. The accused will be advised of his own rights as a. witness and the maximum punishment that may be imposed. If from page 4 of the charge . sheet it doe s not appear that accused ha.s been parmitted and elected to refuse punishment under Article 15 for all the of'fenses charged, he 1s advised ot bis right to object to trial by surmnary court-martial and is asked whether he consents or objects to such trial. His response is recorded in the space provided on page 4 of the charge sheet and it he objects to trial the charges and allied papers are returned to the convening authority.
(3) During trial. The summary court-martiaJ. reads or shows the charges and specifications to the accused end assures himself that the accused understands them. The accused is then asked how he pleads to each specifice.tion and charge. If the accused pleads guilty to any specification or charge the meaning and effect ot the plea is fully explained to him ~ncluding the maximum punishment imposabl.e. This explanation ;l.s acknowledged by accused's initials in an appropriate block on the ch~ge sheet. If ~ plea of guilty to sJ.l
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specifications and charges is allowed to stand the accused may be convicted without calling any 'Witnesses .. however.. if the summary courtmartial feels that the interests of justice 'Will be best served he is admonished to call witnesses and proceed with the trial. The trial is then conducted if there 1s a plea of not guilty or evidence on the merits is to be rece1ved after a plea of guilty. The court reads the names of all witnesses on the charge sheet and determines if the ac" cused desires additional witnesses. The trial proceeds with the court questioning both prosecution and defense witnesses and showing the accused any documentary evidence utilized. The accused is fully advised of his rights to himself cross-examine Witnesses and to testify in his ow behalf. After conclusion of evidence on the merits the summary court arrives at findings and announces them to the acoused. If the accused is fOWld guilty he is read or shown any admissible evidence of previous convictions and the personal data on the charge sheet is verified. After considering any evidence in extenuation or mitigation the court determines a sentence. The sentence is then announced.
(4) After trial. The court notifies the accused's commanding officer of the result of trial and comp:\.etes the record of trial including the charges considered.. pleas i findings.. sentence and any prior convictions considered. The charge sheet is corrected to delete the names of any witnesses not called or evidence not used and is made to reflect the names of additional witnesses called or evidence utilized.
d. Post triaJ. procedure. The convening authority in event of conviction takes immediate action to approve or disapprove the sentence after examining the record of trial for defects, making certain that the summary court--ma.rtial complied with all legaJ. requirements and that the sentence is not in excess of the legal limits and is appropriate for the offenses under all of the circumstances of the case. His action is then entered on page 4 of the charge sheet. Any subsequent action on the findings or sentence is promulgated in a summary court-martial order (Paragraph 4<1.. Army Regulations 22-10, dated 19 August 1957, as changed by Change 1, dated 27 March 1958). The record is forwarded to the unit personnel officer who makes an entry on the accused's service record. Copies of the record are then forwarded to the offi cer exercising general court-martial jurisdiction over the unit for examination by a judge advocate. If the findings and sentence are found correct in law and fact the case becomes .final Within the meaning of Article 76 of the Code. (Army Regulations 22-145 .. 13 February 1957.)
6. Record of Trial. The record of trial of a summary courtmartial consists of four pages and includes biographical data pertaining to the accused" the names of the witnesses.. the charges and specifications .. the signature of the accuser, the oath taken by the accuser" the indorsement referring the case to a summary court.. a statement as to whether or not the accused was offered Article 15 pWlishment for the offenses charged, a statement as to whether the accused consents or objects to trial by summary court-martial .. the pleas, findings and sentence at the trial.. the action of the convening authority and an entry by the Wlit personnel officer indicating that the conviction has been entered on the per~onnel records of the accused.
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REFERENCE~
Uniform Code of Military JUstice
Art. 16 (10 u.s.e. 816) Courts-martial classified Art. 17 (10 u.s.e. 817) Jurisdiction of courts-martial in general Art. 20 (10 u.s.c. 820) Jurisdiction of swmnary courts-martial Art. 24 (10 u.s.c. 82!~) Who may convene summary courts-martial Art. 60 (10 U.S.C. 860) Initial action on the record Art. 64 (lO U.S.C. 864) Approval by the convening a.uthority Art. 65 (10 U.S.C. 865) Disposition of records after review by
the convening authority Art. 76 (10 U.S.C. 876) Finality of proceedings, findings and
sentence
Manual for Courts-Martial, 195;t (Executive Oz:der 10214, Feb!'}1&Y 8, 1951)
Par. 5c -- Who may convene summary courts-martial Par. 16 -- Jurisdiction of summary courts-martial Par. 79<1 -- Procedure of sUDlIl1ary oourts-martial Par. 90e -- Summar; court-martial App. 11 -- Form for Record of Trial by Surmnary Court-MartiaJ..
Army Regulations
AR 22-145, 13 February 1957. Reporters and supervisory review of records of summary and special courts-martial.
AR 600-201, 20 June 1956. Noncommissioned Officers and Specialists.
SR 22-125-5, 28 February 1949. Establishment of Summary Courts in Towns, Cities, and Recreational Areas.
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ANALYSIS,OF THE SPECIAL COURTS-MARTIAL SYSTEM IN THE UNITED STATES ARMY
1. Function of a SEecial Court-Martial. A special court-martial 1s the forum primarily used by Army commanders to dispose of chargee of relntively serious offenses for which a punitive discharge is not authorized or does not a.ppear to be appropriate under the circumstances. It consists of any number of members, not less than three.
2. Jurisdiction of Special Courts-Martial. Although generally referred to as a court of limited Jurisdiction, a special court-martial has jurisdiction over all persons subject to the Uniform Code of Mili tary Justice and over all. non-capital offenses made punishable by the Code •
. 3. ~y Convene 8t'!=cial Courts-Martia3;.. SpeciaJ. courts-martieJ. may be convened' by any person who may con~rene generaJ. courts-martia1, the commanding officer of an Ax:rrty, district, garrison, fort, camp, station, awdliary air field, or other place where members of the Army are on duty, the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Arrrsy, or the commanding offi cer of any other Army command when empowered by the Secretary of the krmy.
4. Punishments Which May Be Adjudged by Special Courts-Martial. Article 19, Uniform Code of l-Iilitary Justice, provides that special courts-martial may, under such limitations as the President may prescribe, adjUdge any punishment not forbidden by the Code except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor v.ithout confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months. A bad conduct discharge may not be adjudged unless a complete record of the proceedings and testiDlony before the court has been made. By regulation (Army Regulations 22..145, 13 February 1957) the Secretary of the Army has forbidden the appointment of reporters for summ~ courts-martial or for special courts-martial unless the convening authority shall have received special authorization in each instance from the Secretary of the Army. Since a verbatim record cannot be made, a. special courtmartial. in the Arrrty may impose any authorized punishment except a bad conduct discharge.
5. Procedures. In!tiation and investigation of charges against an accused fo11ow the same procedure regarclless of whether the case wi11 be tried by a summary court-martial or special court-martia1. The consent of the accused is not required for trial by special court-martial. A trial counsel is appointed to prosecute in the name of the Un!ted States. A mi1itary counsel With equivalent or greater legal qualifications is appointed to defend the accused. In addition to or in lieu of appointed counsel the accused ~y be represented by civilian couneel retained by him at no expen$e to the Government or by requested military counsel if rea.sonably a.vailable. .Any perSon
who has acted as investigating officer, law officer, or court member in any case may not aet later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counselor assistant defense counsel in the same case, nor may any person who has acted for the prosecution act later in the same case for the defense. :No person who has acted for the defense may a.ct later in the same case for the prosecution.
6. Trial Procedure. Trial procedure before a special court .. martial 1s similar to that before a general court-martial, except that there is no law officer. The president of the court rules on interlocutory questions, subject to objection by other members of the court-martial and instructs the court as to the elements of each offense charged, the presumption of innocence, reasonable doubt and the burden of proof. Concurrence of two-thirds of the members present at the time the vote is taken is required for a finding of guilty and a like number must concur in any sentence adjudged. After a finding of guilty the accused is entitled to present evidence in mitigation or extenuation including the making of an unsworn statement either personally or through counsel. The court then closes and assesses the sentence. The procedure followed is prescribed in Appendix 8a., Manual for Courts-Martial, United States, 1951.
7. Record of Trial. A summarh.ed record of trial is prepared, a copy of which is furnished to the accused. Appendix 10 of the Manual prescribes the form of a record where a verbatim record is not made.
8. Post Trial Procedures. After the record of trial is authenticated the trial counsel delivers it to the convening authority for his action on the findings and sentence. The convening author!ty has the power to approve or disapprove the findings of guilty, or any part of them, and to approve or disapprove any part or all of the sentence adjudged. Since in the Army a bad conduct discharge may not be adjudged the convening authority may order the sentence executed and forward the record of trial to the officer exercising general court-martial jurisdiction where the record is reviewed by a judge advocate, thereby completing appellate review and finalizing the case within the meaning of Article 76 of the Code. (Army Regulations 22-145, 13 Fe'truary 1957.) The results of the trial including the action of the convening authority are promulgated in special courtmartial orders (Army Regulations 22-10, 19 August 1957, as changed). A form prescribed for special court-martial orders ·is set forth in Appendix 15, 1'-lanuaJ. tor Courts-Martial, United States, 1951.
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REFERENCES
Uniform Code of Military Justice
Art. 16 (10 U.S.C. 816) Courts-martial classified Art. 17 (10 U.S.C. 8i7) Jurisdiction or courts-martial in general Art. 19 (10 U.S.C. 819) Jurisdiction of special courts-martial Art. 23 (10 U.S.C. 823) Who may convene special courts-martial Art. 27 (10 U.S.O. 827) Detail of trial counsel and defense counsel Art. 28 (10 U.S.C. 828) Detail or employment of reporters and
interpreters Art. 54 (10 U.S.C. 854) Record of trial Art. 60 (10 U.S.C. 860) Initia.l action on the record Art. 64 (10 U.S.C. 864) Approval 'by the convening authority Art. 65 (10 U.S.C. 865) Disposition of records after review by
the convening authority Art. 66 (10 U.S.c. 866) Review by a board of review Art. 67 (10 U.S.c. 867) Review by the Court of Nilitary Appeals Art. 74 (10 U.S.C. 874) Remission and suspension Art. 76 (10 U.S.C. 876) Finality of proceedings, findings 1 and
sentence
ManuaJ. for Courts-MartiaJ., United States, 1951.
P~. 5b -. Who may convene special courts-martial Par. 15 -- JU+isdiction of special courts-martiaJ. Chapt VIII .. - Appointment of courts-martial Chapt IX -- Personnel of cou:t'ts-martial Chapt X -- General procedural rules Chapt XI -- Organization of the court Chapt XIII -- Matters related to findings and sentence App. 8a -- GUide--Trial Procedure App. 10 -- Guide--Guide for preparation of record of trial 'by
special court-martial when a verbatim record is not prepared
App. l4b -- Forms of Action--Convening Authority--Special courtsmartial
App. 15 -- Forms for court-martial orders
Arm;y Re~a.tions
AR 22-1.4S, 13 "February ~957," Repbrt~rs "and SuPervisory review of records of summary and special courts-martial
AR 22-10 1 19 August 1957, as changed by Change 2" 27 March 1958, Transmittal and ReferraJ. of Charges and Publication of Court-Martial Appointing and Promulgating Orders
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